199: And finally a look forward to what’s happening in employment news for November 2019

The Ministry of Justice has announced proposals for amendments to the legislation dealing with the disclosure of convictions by ex-offenders to employers. This follows the Supreme Court’s ruling that the current statutory scheme is incompatible with the right to private and family life under the European Convention on Human Rights. Key changes include removing the requirement to disclose less serious sentences of over four years once the rehabilitation period has ended; and shortening the time during which sentences of four years or less and community sentences have to be disclosed. Separate, stricter rules will apply to those working with children and vulnerable adults and to positions of public trust and national security. More detailed proposals on the new rules and the precise length of rehabilitation periods will be published in due course after discussions with stakeholders.

The All-Party Parliamentary Group for Whistleblowing (APPG), which was formed in July 2018, has produced its first report looking at the adequacy of whistleblowing protection in the UK. The report concludes that the UK’s current regulatory framework is overly legalistic, obsolete and fragmented. Using evidence collected from over 400 whistleblowers, the APPG makes 10 main recommendations. These include widening the definition of whistleblower; shifting the focus of whistleblowing to the harm, or risk of harm, to the public, including any harmful violation of integrity and ethics; protecting all members of the public; banning non-disclosure agreements in whistleblowing cases; establishing an independent Office for the Whistle blower to enforce protections and ensure that penalties are meaningful; and reviewing the availability of legal aid and the calculation of compensation.

Following a ruling by the Court of Justice of the European Union, the Information Commissioner’s Office has updated its guidance on timescales for responding to a subject access request (SAR), as well as other individual rights requests. The timescale has changed to reflect the day of receipt of the request as day one, instead of the day after receipt. A SAR must be complied with without undue delay and within one month of receipt of the request. This must now be calculated from the day the request is received, whether this is a working day or not, until the corresponding calendar date in the next month. Employers should ensure that their policies and procedures on handling requests are updated accordingly.

The Home Office has responded to the Independent Review of the Modern Slavery Act which was published in May 2019. Most of the recommendations made by the Independent Review were accepted, including clarification of the scope of organisations required to report; increasing compliance; embedding transparency requirements into business culture; improving the quality of reporting; and extending the requirement to publish a modern slavery statement to public sector organisations. Work has already begun on implementing changes, including the creation of a central registry for modern slavery statements, and a compliance audit. The government has also recently completed a consultation on how to strengthen the transparency provisions. This included proposals to introduce mandatory reporting areas, to improve the process and sanctions for tackling non-compliance, and to identify issues arising from the planned new requirement for modern slavery statements to be published on a centralised registry.

The Department for Business, Energy and Industrial Strategy (BEIS) has published a consultation on the proposal to create a single labour market enforcement body, as outlined in the government’s ‘Good Work Plan’ in December 2018. The four main bodies currently responsible for enforcing employment rights are the Employment Agency Standards Inspectorate, the Gangmasters and Labour Abuse Authority, HMRC, and the Health and Safety Executive. It is not proposed to incorporate health and safety into the new body. Although BEIS acknowledges that moving to a single organisation risks losing the benefits of specialisation and expertise of these existing bodies, it believes that there will be many advantages. For example, a single agency would enable pooled intelligence, coordinated enforcement action, better support for businesses, a strong recognisable brand, and a more effective use of resources. Its core function would be to protect the employment rights of vulnerable workers, including enforcement of holiday pay. BEIS is seeking views on whether its remit should also cover enforcement of statutory sick pay, annual leave, unpaid Employment Tribunal awards and labour market breaches; supporting the Equalities and Human Rights Commission; and improving supply chain transparency. Views are sought on proposals to extend the civil penalties regime currently used in the national minimum wage regime to other areas where pay has been withheld.

BEIS has also published a consultation on measures to address one-sided flexibility, where workers have no guarantee of work but are expected to be available at very short notice as required. The consultation seeks views on proposals put forward by the Low Pay Commission in December 2018 to tackle this problem. The main proposal is a new right for workers, possibly from ‘day one’, to be given reasonable notice of their working hours and to be compensated where their shifts are cancelled or curtailed without reasonable notice. Views are sought on what ‘reasonable’ notice should be, whether this should vary depending on the industry or the type of work done, the level of compensation, appropriate penalties for non-compliance, and the likely impact on employers. The consultation also confirms that workers will have the right to switch to a contract that reflects their normal working hours, although no timescale is given for introduction of this right. This proposal goes further than the government’s previous commitment to introduce a right only to request a more predictable and stable contract. Statutory guidance would be produced to explain the new right and provide advice to employers on best practice. This consultation closed on 11 October 2019.

The government Equalities Office has published a consultation on tackling sexual harassment in the workplace. Key proposals include a new duty on employers to prevent sexual harassment, new protections against third party harassment, and extending the three months time limit for bringing discrimination and harassment claims to six months. Further consideration will also be given to extending these protections to volunteers and interns. A statutory code of practice on sexual harassment will be produced, with technical guidance from the Equalities and Human Rights Commission (EHRC). This will include details of how employers can take ‘all reasonable steps’ to prevent harassment. It is not yet clear how the new duty to prevent harassment will be enforced. Suggested options include enforcement by the EHRC without an individual having to take action, dual enforcement by the EHRC and individuals, and possibly a financial penalty of up to 13 weeks’ wages payable irrespective of loss. There is also a proposal to increase transparency by requiring organisations to report on prevention policies publicly, with board sign-off, and to report internally on harassment complaints and the results of exit interviews. In addition, the government will look at non-legislative solutions to the issue of harassment. This consultation is backed up by a further consultation inviting evidence from the public on their personal experiences of harassment.

The government has published ‘Good Work Plan: proposals for families’ containing three consultations on possible reforms of family leave and pay, including maternity, paternity, adoption, parental and shared parental leave and pay; introducing neonatal care leave and pay; and increasing transparency around employers’ family policies. The first consultation, which lasts until 29 November 2019, asks for views on how best to reform family-related leave and pay to meet the government’s objectives of increasing paternal involvement in childcare, giving families more flexibility, preventing discrimination and supporting mothers to return to work. The second consultation proposes a new day-one right for parents of premature or newborn babies needing two weeks or more of neonatal care to receive equivalent additional leave, paid at the usual statutory rate, and added to the end of their maternity or paternity leave. Views are sought on the detail, including notice requirements and a cap on the number of weeks’ leave and pay. The third consultation sets out a proposal to require employers with more than 250 employees to publish their flexible working and parental leave and pay policies on their website and possibly a central government database, as well as a requirement to specify in job adverts whether flexible working would be considered. The second and third consultations closed on 11 October 2019. A separate evaluation of the shared parental leave system is due to be published later this year.

The government has responded to its consultation on extending redundancy protection for pregnant women and new parents returning from maternity leave, adoption leave and shared parental leave. As soon as Parliamentary time allows, legislation will be brought forward to extend the period of redundancy protection from the time a woman notifies her employer of her pregnancy, whether orally or in writing, until six months after the end of maternity leave, notwithstanding any additional leave. Redundancy protection will also be extended to six months after the end of adoption leave. There will be a further consultation on how to design a new scheme extending redundancy protection for those returning from shared parental leave, as this will be much more difficult to structure. Further proposals include setting up a taskforce of employer and family representative groups to consider how to improve the information available on pregnancy and maternity discrimination, and an action plan on steps to facilitate pregnant women and new mothers staying in work.

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