Julian Outen, Partner and Head of Employment, Ellisons Solicitors.

In July 2017, an independent review of modern working practices, “Good Work: The Taylor Review of Modern Working Practices”, was submitted to the UK Government. This paid particular attention to agency, casual and zero-hours workers.

In response to this, the Government published its ‘Good Work Plan’ in December 2018, promising to introduce a number of legislative changes that strengthened the rights of workers currently in insecure forms of “employment”.

The Good Work Plan sets out:

  • The Government’s vision for the future of the UK labour market.
  • How the Government will implement the recommendations that have arisen from The Taylor Review of Modern Working Practices.

A key part of the Plan is the introduction of the right to request a more stable contract, which will be available to all workers who have accrued 26 weeks of continuous service.

These workers will be able to submit a request for a more fixed working pattern, including a guaranteed number of hours each week or to regularly work on specific days e.g. Monday-Friday. We do not yet know when this will be implemented neither do we have many specific details, however we know that it is likely to work in a similar way to the current right to request flexible working.

This means employers will need to consider any written request and confirm to workers whether or not this is acceptable, with reasons, within a three-month timeline.

Another key proposal contained in the Plan is that employers will need to provide all workers with a written statement of terms, and from day one. Currently this obligation only exists in relation to employees, not workers, and only then, within two months of starting employment.

This grace period is being removed by the government in an attempt to increase transparency around terms of employment, and there will also be stricter guidelines around the information to be contained within these statements. Regulations have been published to bring these changes into effect on 6 April 2020.

Furthermore, the Working Time Regulations 1998 will be amended to allow a more balanced approach for zero-hours staff whose weekly working hours can differ significantly, and this will also come into force on 6th April 2020. The amendment will extend the reference period for determining an average week’s pay, to 52 weeks (currently 12), in the hope that holiday pay will become a more accurate reflection of an individual’s true working pattern and average earnings.

Parental bereavement leave and pay is also likely to be subject to change. Under new Regulations, employed parents will have a statutory right to two weeks’ leave if they suffer the tragedy of losing a child under the age of 18, or suffer a stillbirth after 24 weeks of pregnancy. They will also be able to claim statutory parental bereavement pay, if they meet the relevant eligibility criteria (similar to the eligibility criteria for statutory paternity pay). Leave will be available to be taken as a single block, or as two separate weeks. Employed parents will have a period of 56 weeks in which to use their entitlement. It is expected that these new rights will come into force in April 2020.

The Good Work Plan has also confirmed that rules will change concerning continuity of employment. Casual employees can find it difficult to accrue certain employment rights, e.g. protection from unfair dismissal, because a gap of one week can break the necessary continuity of employment. The Government is proposing that this rule will change by extending the gap in between periods of employment with the same employer to 4 weeks, before a break in continuous employment occurs, giving casual workers greater opportunity to build up service-related rights. We do not yet know when this change will come into effect.

Other key proposals under the Plan are:

  • Abolishing the Swedish Derogation, which gives employers the ability to pay agency workers less than their own workers in certain circumstances. Regulations have been published and are due to come into force on 6th April 2020.
  • Banning deductions from staff tips.
  • Lowering the thresholds for requesting information and consultation arrangements from 10% to 2% of employees, subject to the existing minimum of 15 employees. Regulations have been made which will implement this change from 6th April 2020.
  • Refining the employment status tests; to include developing an online status tool. The government has not said how it intends to provide this clarity.
  • Increasing the maximum penalty for an employer’s “aggravated” breach of employment law from £5,000 to £20,000 for any breaches occurring on or after 6th April 2019.

Other potential developments to look out for

The Supreme Court judgment in R (on the application of Unison) v Lord Chancellor which declared the Employment Tribunal fee regime unlawful, left open the possibility of a new fee scheme which would need to strike a balance between increasing Tribunal funding and safeguarding access to and the delivery of, justice. The Ministry of Justice has since indicated that plans for a new fee regime for the Employment Tribunals is in development. We do not yet know when the new regime may be introduced.

Another area under scrutiny and where reform is likely, concerns protection for women and new parents when it comes to redundancy dismissals. Currently if a woman is on maternity leave and is selected for redundancy, she must be given priority over other potentially redundant employees, when the employer offers suitable alternative employment. The government has consulted with a view to extending this right for a period of 6 months beyond a woman’s return from maternity leave. It is also considering extending the right to those women who have told their employer that they are pregnant, but have not yet started any maternity leave, as well as to parents who are on adoption leave, shared parental leave and other longer periods of parental leave.

2020 is really not far away now, and employers should use this time to keep an eye on these developments to ensure they are in a position to comply with these new requirements as and when they come into being. The Ellisons Solicitors Employment Team can keep you abreast of these changes as they become available, and we can also help to ensure that your business is able to meet its new obligations.