After the anticipated Employment Bill was missing from the Queen’s Speech, it was unclear whether we would see any significant employment-related reform this year. A flurry of activity from the government in late July clarified the position.
The government responded to the 2018 consultation on employment status and confirmed that two potentially significant reforms will be making their way through parliament later this year in the form of Private Members’ Bills. In addition, the Women and Equalities Select Committee published its menopause in the workplace report, while small changes to industrial action law came into force on 21 July.
Employment status guidance
The tests used to decide whether someone is an employee, a worker or self-employed have been established through court decisions, not legislation. The Taylor review of modern working practices suggested that the employment status tests could be codified to improve clarity and reflect the reality of casual working arrangements. The government has now confirmed that it is not going to make the tests statutory, because this would result in costs and uncertainty for employers that would outweigh the benefits of any change.
However, new guidance explains the different types of employment status to help employers, employees and workers understand their rights and obligations. Although this does not break new ground, it is a helpful summary of the factors that will be relevant to the assessment of an individual's status and gives practical examples of the arrangements that are likely to fall within each category, particularly in the context of gig economy workers.
Support for neonatal care leave and fair allocation of tips
The government had already said that it would introduce neonatal care leave for parents of babies needing hospital care after birth and a new requirement on employers to distribute tips and gratuities to workers in full. This will be achieved through government support for two Private Members’ Bills that have been introduced to parliament.
The Neonatal Care (Leave and Pay) Bill will give parents whose babies need hospital care in the 28 days after birth the right to at least one week’s neonatal care leave, if the baby is in hospital for at least a week. Further details of the right will be set out in regulations but it seems likely that the maximum period of leave will be 12 weeks. Leave will be a day one right, but the normal qualifying service and minimum income requirements will apply to statutory neonatal care pay. The right is expected to come into force around 18 months after Royal Assent.
The Employment (Allocation of Tips) Bill will require employers to ensure that tips or gratuities are distributed to staff fairly and in full. This will include any tips paid by a customer, whether direct to the worker or through the employer. A statutory code of practice will provide guidance on dealing with tips in a fair and transparent way. Employers in relevant sectors will also need to have a written policy on how they deal with tips and service charges, which they make available to workers, and keep records of how tips have been dealt with. Workers will be able to complain to the employment tribunal if an employer fails to comply.
Menopause and the workplace
The Women and Equalities Select Committee has published its report into menopause and the workplace, highlighting the ways in which the menopause can affect women in work and the steps that employers can take to support employees better.
The report suggests that employers can help by taking steps such as:
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Creating an environment that allows open discussion of menopause related issues;
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Treating the menopause as a health issue; and
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Introducing menopause policies to explain the support available to employees, which could include adjustments to sickness absence policies and greater availability of flexible working.
In relation to possible legal reform, the Committee recommends:
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Allowing employees to bring intersectional or “combined” discrimination claims relying on two protected characteristics, such as sex and age; and
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Recognising menopause as a free standing protected characteristic in the Equality Act to reflect the way in which sex-specific conditions such as pregnancy and maternity are treated.
It seems unlikely that the government will act on these recommendations, as it has already indicated that it does not want to introduce unwelcome regulatory complexity or place new burdens on businesses. It will however focus on providing improved guidance to ensure employers have a proper understanding of the existing legal position.
Trade union changes
Two changes to trade union law came into force on 21 July. The first repealed the provision that made it unlawful for an employment business to supply temporary workers to an employer to cover the roles of workers taking industrial action. In theory, this should make it easier for an employer to use temporary workers to limit the impact of staff absences because of strikes.
The second change increases the maximum damages that can be awarded against a union taking unlawful industrial action from £250,000 to £1 million. Such claims are uncommon, so the practical impact of the reform is likely to be relatively limited.
Authored by Jo Broadbent and Stefan Martin.
