327: What’s coming up in employment?

New organisation for employment rights?

The Department for Business, Energy and Industrial Strategy (BEIS) has confirmed its intention to establish a single enforcement body for employment rights, a proposal which originated in the government’s 2018 ‘Good Work Plan’ and was the subject of consultation in July 2019. In its recent response to this consultation, the government indicated that as and when Parliamentary time allows, legislation will be introduced to create the new body, bringing together the Employment Agency Standards Inspectorate, HMRC’s National Minimum Wage Enforcement, and the Gangmasters and Labour Abuse Authority. The new organisation will have a wide remit to protect vulnerable workers, with a particular focus on national minimum wage, exploitation and modern slavery, holiday pay and statutory sick pay. It will also have strengthened powers to tackle non-compliance, and improved data analysis capabilities to enable the pooling of intelligence for more targeted enforcement activity.

Mandatory ethnicity pay gap reporting?

In a joint letter sent to the government on 25 June 2021, the CBI, TUC and EHRC have called for a clear timetable for the introduction of mandatory ethnicity pay gap reporting. The letter highlights the potential of mandatory pay reporting to transform understanding of race inequalities and to help ethnic minority workers reach their full potential in the workplace. In response, the government indicated that it is still considering the report of the Commission on Race and Ethnic Disparities on racial and ethnic disparities in the UK, together with feedback to its consultation on this issue, and that a response will be issued in due course. The Commission’s report did not recommend a mandatory approach to ethnicity pay gap reporting.

Online tool for Shared Parental Leave

The government has launched an online tool to help expectant parents check their eligibility and pay entitlement under the shared parental leave and pay scheme. The tool also enables expectant parents to download all the documents they need to arrange leave with their employer. Shared parental leave allows working parents to share 50 weeks of leave and up to 37 weeks of pay in the first year of their child’s life. However, the scheme is complex, and uptake has been low. This new online tool aims to resolve the current confusion around eligibility and entitlement but is unlikely to reduce the calls for fundamental reform of the parental leave system.

Holiday pay and regular overtime

The Supreme Court has removed East of England Ambulance Trust v Flowers and others from its hearings list, following communications from the parties. This appeal, which was due to be heard on 22 June 2021, concerned the question of whether holiday pay under the Working Time Directive should include regular voluntary overtime. It is thought that the case has been settled in light of an NHS-wide deal, effective in England only, which confirms that NHS employers should include regularly worked overtime hours in the calculation of holiday pay. Under the deal, existing legal claims will be resolved through local settlement discussions. The Court of Appeal had previously ruled in this case that voluntary overtime must be factored into the calculation of holiday pay if it is sufficiently regular and settled to amount to ‘normal’ remuneration.

Long Covid and disability

Following publication of an in-depth report on workers’ experiences of long Covid, the TUC has called for it to be recognised as a disability under the Equality Act 2010 and for COVID-19 to be classified as an occupational disease, a move that would provide legislative protection and access to compensation. More than 3,500 workers responded to an online TUC survey on the impact of long Covid on their daily working lives. This revealed that nearly 29% have had symptoms lasting longer than one year; 95% have been left with ongoing symptoms; and over half had experienced some form of discrimination or disadvantage due to their condition. 5% of respondents said they had lost their jobs as a result of the impact of long Covid. Over three quarters of respondents were key workers, with the majority working in education, health or social care, and more than two-thirds were women.

Criticism of ‘fire and rehire’ practices

ACAS has published a report on the use of ‘fire-and-rehire’. This refers to the practice of dismissal followed by re-employment on changed terms and conditions. BEIS commissioned the report in October 2020 to gather evidence on the use and prevalence of fire-and-rehire but did not ask ACAS to make any recommendations. The report reveals that the practice may have increased in recent years, particularly as a tactical step at an early stage of negotiations; it is used in a range of circumstances, including redundancy, harmonisation, and to impose greater contractual flexibility; and it is prevalent across all sectors and types of employer. There was a divergence of views on the reasonableness of fire-and-rehire, and on whether the current legal framework provides sufficient protection for workers. Some participants felt that fire-and-rehire is never reasonable and should be prohibited; others felt it was reasonable if used as a genuine and unavoidable last resort. Participants also suggested a range of interventions, including greater scrutiny of employers’ rationale for change by employment tribunals; strengthened consultation obligations; and legislating to make dismissals for the purpose of re-engaging employees on less favourable terms and conditions automatically unfair. The government has confirmed that it will continue to work with ACAS on this issue and that, although no legislative change is proposed, nothing is off the table.