As the first major employment law consultation in over ten years, this has been long anticipated. But is it what was expected? Although it covers a broad spectrum of employment rights, there are some surprises as well as omissions.
We consider the four key theme areas in turn.
Terms of employment
As expected, the consultation looks to address issues relating to insecure work, such as exploring employment status, a day one right to written terms and conditions for employees and workers and a review of certain agency worker rights and regulation.
Looking at zero hours contracts, a range of proposals are put forward for consultation which aim to prevent abuse but may also impact on workplace flexibility. These include:
- limiting or restricting zero-hours contracts and introducing a right to a banded hours contract;
- introducing a right to request a more predictable contract; and
- preventing an employer’s ability to cancel work at short notice and to restrict an individual’s ability to work for other employers.
Addressing the employment status minefield – including the three-tier “employee, worker, self-employed” status model and “bogus” self-employment – will hopefully remove ambiguity and uncertainty in this area of the law. However, it would be complex and reform in this area of course has the potential to significantly impact the gig economy and digital platform working.
In terms of large scale consultation exercises, regulation and guidance in fire and rehire practices was expected and the proposed Code of Practice may provide that badly needed guidance. But a point of concern for individuals leading consultation exercises is likely to be the proposals relating to personal liability for directors, managers or officers for failing to notify the Department for the Economy of collective redundancies.
Other related proposals include increasing the holiday pay reference period from 12 weeks to 52 weeks – a reform with the potential to ease the administrative burden on employers and make pay calculations fairer to all workers – and introducing a right to disconnect.
Voice and representation
This is a key section to the consultation document, addressing good workplace relationships, trade union operations and democratic workplace structures.
The consultation calls for views on:
- access to workplaces by trade unions (with small or micro business exemptions);
- a reduction in notice to employers of ballots on industrial action from seven days to five days;
- permitting e-balloting by trade unions;
- increasing protections for union representatives and those taking part in industrial action;
changing the triggers for rights under the Information and Consultation of Employees Regulations; - transparency requirements on whistleblowing to prescribed bodies;
- reducing the threshold for unions to seek formal recognition from 21 to 10 employees;
- exploring whether collective sectoral bargaining should be introduced and in which sectors;
- considering the introduction of a collective bargaining code of practice, establishing principles and behaviours to foster more productive working relationships between employers and unions; and
- practical amendments to the TUPE provisions including information and consultation in micro businesses, the application of TUPE to all workers, and removing the concept of split contracts.
Whilst wide ranging, this suite of proposals could lead to increased requests for union recognition and significantly increased union representation among employees.
Work-life balance
This section of the consultation aims to improve work-life balance but also to improve access to employment.
A number of proposals relating to family leave are under consultation. These include:
- permitting the 2 weeks’ paternity leave to be take in two one-week blocks within 52 weeks from birth or adoption;
- the introduction of one week’s unpaid carer’s leave and paid neonatal care leave; and
- increasing the “protected period” for redundancy to include during maternity, adoption and shared parental leave to include a period after return of up to 18 months from birth or adoption
In addition, there are proposals to enhance existing flexible working rights including making this a day one right, allowing two statutory requests per year (but not permitting concurrent requests) and removing the burden on the employee to explain the impact of the proposed arrangement on the employer.
What’s missing?
Many employers will be surprised that a number of areas did not make it into the consultation. Key omissions include:
- improving the apprenticeship system and the access to levy funds;
- protection in holiday claims with no two-year backstop available;
- holiday pay in atypical working relationships;
- a day one right to unfair dismissal;
- restrictions on probationary periods.
It remains to see whether these do come up through the consultation process or indeed feature in any new Employment Bill.
With responses due by 30 September 2024, Lewis Silkin encourages all stakeholders to engage in the consultation process. If you have any questions or would like to be involved in Lewis Silkin’s consolidated response please do contact Paul Gillen.