The Government published its Good Work Plan at the end of 2018. The Plan sets out the Government's vision for the future of the UK labour market, as well as how it intends to implement the recommendations arising from the Taylor Review of Modern Working Practices. So what's happened since then, and what's in the pipeline?
Changes from 6 April 2020
There are a number of changes coming in on 6 April 2020 as part of the government's Good Work Plan commitments.
Written terms for all workers
The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 will:
- Provide that a written statement of terms must be given on or before the first day of employment, rather than within two months of employment starting.
- Add to the information that must be given in the written statement to include:
- The days of the week the worker is required to work, whether the working hours may be variable and how any variation will be determined;
- Any paid leave to which the worker is entitled;
- Details of all remuneration and benefits;
- Any probationary period; and
- Any training entitlement provided by the employer, including whether any training is mandatory and/or must be paid for by the worker.
Holiday pay
The reference period for determining an average week's pay, for the purposes of calculating holiday pay for those working irregular hours, will increase from 12 weeks to 52 weeks under the Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018. This will ensure that workers who do not have a regular working pattern throughout the year are not disadvantaged by having to take their holiday at a quiet time of year when their weekly pay may be lower.
The Taylor Review recommended that the state should take responsibility for enforcing holiday pay. The government has said that it intends to extend state enforcement, but only to "vulnerable workers' holiday pay rights", and has not put any timeframe on this.
Agency work
The Agency Workers (Amendment) Regulations 2019 will amend the Agency Workers Regulations 2010 to remove the "Swedish Derogation" (this currently allows employment businesses to avoid pay parity between agency workers and direct employees if certain conditions are met) so that all agency workers will have a right to pay parity after 12 weeks.
By no later than 30 April 2020, temporary work agencies must provide agency workers whose existing contracts contain a Swedish derogation provision with a written statement advising that, with effect from 6 April 2020, those provisions no longer apply.
The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2019 which come into force on 6 April 2020 require employment businesses to provide agency work-seekers with a key information document, before agreeing the terms by which the work-seeker will undertake work. The document must contain information such as the type of contract under which the work-seeker will be engaged, the minimum rate of pay, any deductions that will be made to their pay, how they will be paid and by whom, and annual leave entitlement.
Reduction of thresholds of support for information and consultation rights
The government believes that high levels of employee engagement improve organisational performance and productivity and lead to more fulfilling work. As a result the Information and Consultation of Employees Regulations 2004 will be amended as of 6 April 2020 so that the percentage required for a valid employee request to set up information and consultation arrangements will be lowered from 10% to 2% of employees, subject to the existing minimum of 15 employees.
Changes in the pipeline
There are a number of other areas where the government has said that it will make changes, though in many cases there is no concrete timeframe. An Employment Bill was announced in the Queen's Speech on 19 December 2019 which will pick up on various aspects of the Good Work Plan.
Zero-hours contracts and one-sided flexibility
The Employment Bill will introduce a right for all workers to request a more predictable and stable contract after 26 weeks' service.
BEIS published a consultation (which closed on 11 October 2019) on measures to address one-sided flexibility. The consultation states that the government will adopt the Low Pay Commission (LPC) recommendations for workers to have a right to switch to a contract that reflects their normal working hours. The consultation seeks views on the appropriate level of compensation that should be given to workers where last minute shift changes are made without reasonable notice, how the compensation should be calculated and the cut-off point where it should become payable. It also adopts the LPC recommendation that every worker should have a right to reasonable notice of their work schedule, and seeks views on what would amount to "reasonable notice" and whether this should vary depending on the type of work or industry in which the worker is employed.
Employment status
Employment status was one of the key areas looked at in the Taylor Review, and was the subject of a consultation (to which we are still awaiting a response) in February 2018. There is very little clarity to date over the government's proposed strategy.
The Taylor Review proposed that the definition of "worker" needs to be clearer and more consistent, and that workers who are not employees should be renamed in the legislation as "dependent contractors". It also proposed that there should be less emphasis on personal service, and more emphasis on control, in defining the relationship between an employer and a dependent contractor. This is because of the concern that employers are putting a right of substitution into contracts in order to defeat arguments over worker status.
Although the government has said that it will "legislate to improve the clarity of the employment status tests, reflecting the reality of modern working relationships" it still has very little to say about how it intends to produce this clarity.
The government has agreed in principle with Mr Taylor that having different tests for employment status in the tax and employment law systems can lead to uncertainty, and it plans to reduce those differences to "an absolute minimum". It does not, however, state how it proposes to address the fundamental difference between the two systems (for tax purposes an individual is either an employee or self-employed, and the "worker" is not recognised at all).
Continuity of employment
Casual employees can sometimes find it difficult to accrue certain employment rights such as unfair dismissal, flexible working or shared parental leave, because a gap of one whole week in employment can break continuity. The government has said that it will legislate to extend this to four weeks, allowing more employees to gain access to employment rights with a minimum service requirement, though the timescale for this development is not known.
Tribunal service modernisation
There are two ongoing projects which are referred to in the Good Work Plan, the Employment Tribunal Project and the Civil Enforcement Project, which aim to make it simpler to bring tribunal claims and enforce awards.
The government also intends to "simplify the user's journey" through an ET claim, and to create a "seamless, end to end system" which guides users through each stage of the process, although no detail has been given as to how this will be achieved.
New single labour market enforcement body
On 16 July 2019, BEIS published a consultation on proposals for the formation of a single enforcement body to better ensure that vulnerable workers are more aware of their rights and have access to them, and that businesses are supported to comply. The consultation closed on 6 October 2019. The Employment Bill includes, as part of its measures, the introduction of a single enforcement body.
Statutory sick pay
The government confirmed in the Good Work Plan that it is looking to reform statutory sick pay and will be consulting on measures to encourage and support all employers to play their part. It will also consider whether changes are required to the enforcement mechanism. The Department for Work and Pensions and the Department for Health and Social Care launched a consultation, which closed on 7th October, putting forward a package of measures which encourage early and supportive action by employers for their employees with health conditions.
The Queen's Speech set out the government's intention to introduce a national disability strategy. This will include measures to encourage employers to play their role in retaining disabled people and people with health conditions in the workplace.
Proposals to support families
On 19 July 2019, the government published 'Good Work Plan: proposals for families', setting out three separate consultations.
Although the consultations were set out under the Good Work Plan banner, they are new proposals not previously set out in the Good Work Plan strategy document. The government is consulting on proposals to:
- Reform family-related leave and pay (including maternity, paternity, adoption, parental and shared parental leave and pay). The consultation closes on 29 November 2019.
- Introduce a new right to neonatal leave and pay, to support parents of premature or sick babies. This consultation closed on 11 October 2019. The government's Employment Bill will be used to create the new right.
- Encourage employers to be more transparent about their flexible working policies and their parental leave and pay policies. This consultation closed on 11 October 2019. The government has declared its intention, subject to consultation, to make flexible working the default position unless an employer has a good reason not to grant such an arrangement. It will do this via the Employment Bill.
Extending redundancy protection for pregnancy women and new parents
The government reported in the Good Work Plan that it was reviewing the legislation relating to redundancy protection. A consultation was published in January seeking views on extending redundancy protection for pregnant women and new parents. A response to the consultation was published in July which confirmed that, amongst other things, the government will ensure that the redundancy protection period applies from the point the employee informs the employer she is pregnant and will extend to six months after the employee has returned to work.
The government's Employment Bill will be used to implement these measures.
Conclusion
In summary, much remains to be done. The government has set out its intention to legislate for many of the above measures via the mechanism of an Employment Bill which it will introduce this year, but we do not have any idea of when they will be coming into force. The need to reform employment status, while acknowledged by the government remains unresolved. The general consensus is that clarity is needed but we have no idea what form this will take, and when it will be achieved.
