The long-awaited Employment Bill 2019 offers an opportunity for the government to provide much-needed solutions for issues that have arisen since it was first announced in the Queen’s Speech in December 2019 and to address a post-COVID employment landscape that has changed considerably since then. In this briefing, Pam Loch of Loch Associates discusses the issues.

Notably there was no mention of the Employment Bill in the Queen’s Speech in 2021 but the Government has recently stated it will bring it in “when parliamentary time allows”.

Here we explore some thoughts on what could happen when the Employment Bill is reignited.

The future for flexible working
The Government had been planning to address flexible working pre-COVID pandemic.

At present, employees must have 26 weeks’ service to make a statutory flexible working request. The Government has been considering removing the 26-week requirement and making it a day-one right. It is also now considering making flexible working the default position post-COVID.

The Right to Disconnect
Aligned to flexible working, the ‘Right to Disconnect’ has recently been pushed by trade union Prospect. The union is campaigning for this to be part of the Employment Bill to help employees switch off and protect mental health. Prospect wants employers to be legally required to negotiate with staff and agree rules on when staff cannot be contacted for work purposes.

This is not a new concept, and it has already been happening across the EU. In France, there has been a Right to Disconnect for a number of years and Ireland has become the latest Member State to introduce this right.

With the increasing likelihood of more remote and hybrid working in the UK, staff are voicing concerns that they are expected to always be available and able to respond immediately. This has led to some employees feeling that they cannot escape from work and that they are not working from home but ‘living at work’. Prospect believes this Right to Disconnect would help with wellbeing and avoid burnout. There is the potential for change to happen with the Employment Bill.

What has also become apparent post-COVID is that there has been a negative impact on women who are both more likely to work from home and to bear the brunt of domestic and childcare responsibilities too. This Government may take the view that creating a Right to Disconnect could redress this imbalance that has been created.

Redundancy protection
The Government is contemplating extending the current protection in relation to redundancies in respect of employees on maternity leave to those taking adoption leave and shared parental leave (but not paternity leave). This would mean those employees would have the right to be offered a suitable alternative vacancy in a redundancy situation ahead of others. There is also the potential for extended protection from being selected for redundancy for employees who announce they are pregnant and for six months after they return from maternity leave.

Neonatal leave
Following a consultation in 2019 the Government intends to create a new right for parents to take an additional week’s leave for every week their baby is in neonatal care, up to a maximum of 12 weeks. It is likely that the leave will have to be taken in a continuous block of one or more weeks.

The leave would be added onto the end of the parent’s period of maternity or paternity leave and where the babies are admitted as a neonate (28 days old or less) and where the admission lasts for a continuous period of seven days or more.

It would be subject to qualifying conditions and to staff with a minimum qualifying period of 26 weeks’ service, who earn above the minimum pay threshold. There would be an entitlement to receive pay for the neonatal leave period at the current statutory rate.

Carer’s leave
Another new right that could be created by the Employment Bill is designed to support employees with caring responsibilities. They would be able to take one week’s unpaid leave each year.

Single labour market enforcement body
The Government is also considering introducing a single labour enforcement body to have power to enforce minimum wage and holiday payments. It also wants to ensure that vulnerable workers are better informed of their rights, and to support businesses in complying with their legal obligations. This is likely to appear in the Employment Bill too.

Payment of all tips
A long time in the making, another change that could be made would compel payment of tips and service charges to be given to workers.

The plans have been ongoing for some time, with the Employment (Allocation of Tips) Bill being announced in the Queen’s Speech on 14 October 2019 following an investigation surrounding the treatment and transparency of tips and service charges in 2015. Changes are likely to require employers to distribute tips and service charges in a fair and transparent way and to maintain readily available written policies to the effect. Although it was not mentioned in the 2021 Queen’s Speech, it is anticipated that it will be included in the Employment Bill and there is likely to be a Statutory Code of Practice on distribution of the tips.

Zero-hours contracts
It’s anticipated that a new right may be created for workers to have the right to request a more predictable and stable contract after 26 weeks’ service. This is aimed to address the uncertainty faced by workers engaged under contracts with variable and unpredictable hours, such as zero-hour employees.

Other changes?
With the ongoing twists and turns of the COVID-19 pandemic and its impact in the workplace, the Government may also introduce changes to sick pay. Matt Hancock has raised concerns that the statutory rate of £96.85 could act as a disincentive for staff to stay at home if sick.

There has also been a growing awareness of the variation in views adopted by workers regarding the wearing of face masks, testing and vaccinations. The Government may decide to take the opportunity to make these compulsory in certain sectors.

The Government clearly has been challenged since 2020 with concepts such as furlough and having to introduce new guidance to cope with the mutating world that is COVID-19. However, the need for changes in employment law remains and has in some ways become even more pressing with the new “norm” that lies ahead. The Employment Bill presents an ideal opportunity for the Government to take steps to make employment law fit for purpose in 2021 and beyond.

Pam Loch, Employment Solicitor and Managing Director of Loch Employment Law.
Contact: Pam.loch@lochassociates.co.uk