A quick round-up of the key employment law developments to watch out for in the coming months.
The Queen's Speech delivered in December 2019 brought together a number of measures under a new Employment Bill. These measures included the creation of a single enforcement body, making flexible working the default, the right to request a more predictable contract, and leave for neonatal care, amongst other things.
In May 2021, the Queen's Speech set out the government's legislative programme for the coming year but made no mention of the Employment Bill, even though the Prime Minister had previously promised such a bill in response to concerns that workers' rights could be eroded following the UK's departure from the EU.
In a subsequent statement made in the House of Commons, the Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (BEIS) has confirmed that the government intends to bring forward the Employment Bill “when parliamentary time allows”. It is unclear when this will be, although there have been separate announcements on some of the areas within the bill, although in both cases mentioned below, the timing still remains unclear.
Flexible working consultation
The government has confirmed it plans to consult on flexible working, including whether flexible working would become the default option unless there are good reasons for this not to be the case. According to The Guardian, a government spokesperson has stated that this would not go as far as giving staff a legal right to work from home.
Government publishes response to the consultation on single enforcement body
On 8 June 2021, the Department for Business, Energy and Industrial Strategy (BEIS) published the government’s response on the proposal to create a single enforcement body for employment rights, bringing together the HMRC National Minimum Wage Enforcement; Employment Agency Standards Inspectorate; and the Gangmasters and Labour Abuse Authority. The proposal was made in the government's Good Work Plan policy paper published in December 2018 and consulted upon in the latter half of 2019.
The new enforcement body will have a wide remit to protect workers in relation to the national minimum wage, labour exploitation and modern slavery, holiday pay for vulnerable workers and statutory sick pay. The government will legislate to implement the single enforcement body when parliamentary time allows.
Firing and rehiring
The government has confirmed that it currently has no plans to legislate to prevent so-called "fire and rehire" practices, which have been the subject of some controversy in recent months. Instead, it has asked Acas to prepare more detailed guidance on how and when dismissal and re-engagement should be used.
On 8 June 2021, Acas published its report into so called "fire and rehire" practices which had been commissioned by BEIS and delivered to minsters in February 2021. Intended as a fact-finding exercise, rather than to recommend reforms, the report notes a wide range of opinions amongst participants over the use by employers of fire and rehire. Although use of the practice has increased during the COVID-19 pandemic, participants in the survey did not agree over whether this was because employers were using the pandemic opportunistically as a "smokescreen" to diminish employees' rights or whether it was merely a response to the scale of the challenges faced by businesses during this time.
Responding to the report in the House of Commons, Paul Scully MP, Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy, confirmed that the government does not propose to put forward "heavy-handed legislation" to ban fire and rehire at this stage. Instead, Mr Scully confirmed that the government has instructed Acas to prepare clearer guidance on when fire and rehire should be used and good practice for employers. However, Mr Scully said the government will continue to work with Acas on this issue, and confirmed that "nothing is off the table".
Right to work checks
Temporary changes to right to work checks, which were brought in because of COVID, will now end on 31 August 2021, not 20 June 2021 as previously announced by the Home Office. This follows the government's announcement to extend the date for the easing of lockdown restrictions and social distancing beyond 21 June.
The temporary changes have allowed employers to carry out right to work checks over video calls and for job applicants and existing workers to send scanned documents or a photo of their documents to employers via email or a mobile app, rather than sending the originals.
From 1 September 2021, employers must once again either:
- Check the applicant's original documents.
- Check the applicant's right to work online, if they have provided the employer with their share code.
Employers will maintain a statutory defence against a civil penalty if the right to work check undertaken was carried out in the prescribed manner or as set out in the COVID-19 adjusted checks guidance. No further retrospective checks on employees who had a COVID-19 adjusted check will be required.
New online tool to check eligibility and pay under shared parental leave and pay scheme
The government has launched a new online tool to help check eligibility and pay entitlement under the shared parental leave and pay scheme. The tool may be helpful for expectant parents and their employers.
The government suggests that the tool is designed to help families make the most of shared parental leave. The intention is to make it easier for expectant parents to access and understand shared parental leave and pay. Working families can check their eligibility for the scheme, calculate their pay entitlement, as well as downloading all the documents they need to secure leave from their employer.
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