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Education briefing - Government publishes further consultations on measures to address one-sided flexibility; proposals to support families and establishing a new Single Enforcement Body for employment rights

  • United Kingdom
  • Education - Briefings

19-08-2019

During July the Government published a number of consultation exercises covering various aspects of employment law. In recent briefings we have covered the consultations on workplace sexual harassment measures; the use of non-disclosure clauses in the workplace; changes to the law to support employees who are managing health conditions or returning from sickness absence and plans to extend redundancy protection for women and new parents. In this briefing we round up the remaining three consultation documents issued under the Good Work Plan.

Consultation on measures to address one-sided flexibility

One of the recommendations of the Taylor Review of Modern Working Practices (published in July 2017) was that the Government should ask the Low Pay Commission (LPC) to consider the design and impacts of introducing a higher NMW rate for hours that are not guaranteed as part of the contract. The intention being that this could address the problem of “one-sided flexibility”.

The LPC published their response in December 2018. In this it said that it had found widespread support for the idea that workers should have better notice of their working schedules, more security of income, and the confidence to assert their rights. Although the aim of the premium proposal was to address these concerns, the LPC’s view was that it would not do so effectively, as it concluded that although such a premium could solve some problems, it would create others. Instead, therefore, the LPC recommended an alternative package of measures to provide:

• a right to switch to a contract which reflects the normal hours worked

• a right to reasonable notice of work schedule

• compensation for shift cancellation or curtailment without reasonable notice

• information for workers

On 19 July 2019 the Government issued its consultation on measures to address one-sided flexibility. The consultation, which runs until 11 October 2019, looks at the second and third of the above points. The issue of switching to a contact which reflects the normal hours worked is not dealt with in this consultation, though the Government has previously signalled that it will introduce a right for all workers to request a more predictable and stable contract (in its December 2018 Good Work Plan in response to the Taylor Review). We are expecting this to be modelled on the right to request flexible working but further details are awaited. See our briefings of 18 December 2018  and 21 May 2019 for more information on the Good Work Plan.

Right to reasonable notice of work schedules

In this part of the consultation exercise, the Government asks a number of questions including:

• what notice (if any), do workers receive and does this vary by different types of work or worker?

• What would amount to ‘reasonable notice’?

• What impact (if any) would the introduction of the right to a reasonable notice of work schedules have?

• should the right to a reasonable notice of work schedules be something that is guaranteed from the start of someone’s employment, or should an individual need to work for a certain amount of time before becoming eligible?

• are there any categories of workers or types of work where reasonable notice of a work schedule would not need to be given?

• how should a reasonable notice of a work schedule would be recorded – such as printed document, email or text?

The Government says it agrees with the LPC proposal that the right to reasonable notice should be enforceable through the employment tribunal system and asks for views on what an appropriate penalty would be in the event of non-compliance. It also intends to provide guidance, including advice to employers on best practice across different settings and sectors, and asks what would be most useful for employers within statutory guidance.

Compensation for shift cancellation or curtailment without reasonable notice

The LPC report concluded that the practice of cancelling shifts at the last minute, sometimes on arrival at work or partway through a shift, was not uncommon, although it was thought unfair by both employers and workers.

Therefore, it recommended that where shifts were cancelled without reasonable notice workers should be compensated. It suggested that such compensation could be tied to the actual value of the cancelled shift; the minimum-wage value of the cancelled shift; or a simple multiple of the minimum wage rate. It suggested the Government consult on how best to make this work.

As well as consulting about which of these three options would be a ‘fair’ amount of compensation – or whether any other mechanism would be preferable – the consultation asks a number of questions to establish current practice, including:

• whether shifts or hours of work are cancelled by the employer at short notice in the respondent’s workplace, why, whether reasons are given and whether the hours are then replaced?

• how often are shifts or hours of work cancelled by the employer at short notice and what notice, if any, is provided?

• do workers receive compensation if shifts or hours of work are cancelled and, if so, what compensation is provided and does this vary by different types of work/worker?

The consultation also asks for views on what the cut-off point should be in respect of giving notice of a cancellation, after which workers would become eligible for compensation; whether workers should be eligible for compensation from the start of their employment (or only after a certain amount of time) and which workers, if any, should be exempt from receiving compensation.

Guidelines for employers

An alternative option identified by the LPC was the provision of guidelines for employers. by way of codes of practice or improved guidance as a means of tackling the problem of one-sided flexibility. Finally, therefore, the Government asks what could employers/employer representatives do to share best practice and drive change through their workforce and industry.

Consultation on proposals to support families

This consultation, issued on 19 July 2019, seeks views on the Government’s overall approach to parental leave and pay. It asks how it should prioritise and balance the different levels of support and how to ensure that parental leave and pay arrangements continue to meet the needs of parents and their employers.

Whilst the Government says that it is not ruling out providing further support for self-employed parents in the future, this consultation focusses on additional support for employed parents - as employees do not have the same level of flexibility and autonomy over the time they take off as self-employed people do.

There are three parts to the consultation as follows:

• parental leave and pay - high-level options for reforming and consideration of the benefits, costs and trade-offs (closing on 29 November 2019)

• neonatal leave and pay - proposals for new entitlements (closing on 11 October 2019)

• flexible working and family-related leave and pay – the consideration of new measures to increase transparency of the employer offer in these areas (closing on 11 October 2019)

Parental leave and pay

This section of the consultation explores the objectives of parental leave and pay; how government policy supports parents and employers; the factors which enable parents to combine work and childcare and the impact of each of these factors. It also looks at high level options for reforming parental leave and pay.

The Government says that it could potentially review and reform the following policies:

• Paternity Leave and Pay for eligible fathers and partners

• Shared Parental Leave and Pay for eligible couples

• Maternity Leave and Pay/Allowance for pregnant women and new mothers

• Parental Leave for parents of older children

The consultation asks 26 questions across these areas including:

• what emphasis should be placed on enhancing Statutory Paternity Pay versus the length of Paternity Leave available?

• how should the costs of providing Paternity Leave and Pay be apportioned between the Government, employers and parents?

• how should the Government balance giving fathers/partners flexibility and choice (e.g. to take Paternity Leave in blocks) with the needs of employers and co-workers for certainty around when the father/partner is likely to be off work on Paternity Leave?

• what aspects of the current Shared Parental Leave and Pay scheme are most successful, and which are most in need of reform?

• should there be an element of pay enhancement in the Shared Parental Leave and Pay scheme - if so, how should this be apportioned between the Government, employers and parents?

• what are there implications for reform of Paternity Leave or Shared Parental Leave for maternity arrangements including the length of leave; the level and extent of Statutory Maternity Pay enhancements and the current inflexibility as to when Maternity Leave can be taken?

• what aspects of the current arrangements for parental leave are most successful, and which are most in need of reform?

• how should the Government balance the length of leave for parents of older children with the level of pay in order to incentivise take up?

• should the Government prioritise reform of parental leave policies over other government policies which support parents to combine work with family life?

Neonatal leave and pay

This section of the consultation explores the design of potential new statutory rights to neonatal Leave and Pay, the associated practical considerations and the implications for employers and employees.

It is estimated that 100,000 babies are admitted to neonatal care every year in the UK following their birth.

Currently, parents of a baby in neonatal care have to rely on other statutory leave entitlements to enable them to be off work whilst the baby is in hospital. The consultation points out that this means that for mothers, a proportion of their 52 weeks of Maternity Leave is spent with the baby in hospital, whereas for fathers and partners, this typically uses their whole two weeks of Paternity Leave.

The proposal is to introduce a new right of Neonatal Leave and Pay, enabling the parents to be absent from work to care for the baby, in addition to their other statutory rights to leave and pay.

The Government is consulting on how this new right will work in practice and in particular on the following proposals:

• parents should receive one week of Neonatal Leave and Pay for every week that their baby is in neonatal care, up to a maximum number of weeks – the consultation give the options of two, four, six or twelve weeks (or ‘other’)

• access to leave and pay should be restricted to parents whose baby or babies have been in neonatal care for two weeks or more.

• entitlement should be restricted to the individuals who would have had the main responsibility for caring for the child following birth, had it not been admitted to neonatal care

• entitlement to leave should be a day-one right so employed parents could qualify for it even if they do not qualify for Paternity Leave

• pay should mirror existing family-related statutory payments, such as Statutory Paternity Pay and Statutory Shared Parental Pay – so parents must have average earnings over a prescribed reference period above the Lower Earnings Limit and have at least 26 weeks’ continuous service with their employer at the 15th week before the baby is due

The Government’s suggestion is that Neonatal Leave and Pay is taken at the end of existing entitlements to family-related leave and pay – in other words, at the end of Maternity Leave or Paternity Leave – in a continuous block, and is considering how this would interact with Shared Parental Leave and Pay. The consultation asks respondents for views on this and also what the notice and evidence requirements should be and what employment protections would apply.

Transparency on flexible working and family-related leave and pay policies

This section of the consultation looks specifically at measures to enable job applicants and existing employees to make more informed decisions about job opportunities and access the flexibilities they may need to stay in the labour market.

in October 2018, the Government said it would consider creating a duty for all employers to assess whether a job can be done flexibly and make that clear when advertising; and to consult on requiring employers with more than 250 employees to publish their parental leave and pay policies to align with the overarching approach to gender pay gap reporting.

This consultation therefore asks whether respondents agree that:

• employers with 250+ employees should publish their family-related leave and pay policies on their website

• employers with 250+ employees should publish their flexible working policies on their website

• it would be helpful if certain information – such as whether flexible working may be available from the start of employment, the employer’s approach to informal flexible working and enhancements to different types of family-related leave and pay - was held (and viewable) on a central database

The document also asks whether publication of information should be mandatory or voluntary and, if the Government were to introduce a requirement to say in a job advert whether flexible working was available, what amount of information should be provided and what should be the means of enforcement.

Establishing a new Single Enforcement Body for employment rights

This consultation, which runs from 16 July to 6 October 2019, concerns the potential creation of a single organisation responsible for enforcing employment rights. The proposal is that this body would cover a number of areas (see below) which are currently enforced by another body, or not enforced at all, as well as taking on the strategy and information hub functions currently within the Office of the Director of Labour Market Enforcement.

Area of the law Currently enforced by
National Minimum Wage and National Living Wage HM Revenue and Custom
Domestic regulations relating to employment agencies Employment Agency Standard Inspectorate
Umbrella companies Not currently enforced but government has committed to legislate                              
Licenses to supply temporary labour in high risk sectors in agriculture and the fresh food supply chain

Gangmasters and Labour Abuse Authority

Labour exploitation and modern slavery related to worker exploitation Gangmasters and Labour Abuse Authority
Holiday pay for vulnerable workers Not currently enforced but government has committed to legislate

As well as asking whether a single enforcement body would be more effective than the current system, and what would be the benefits and risks (if any) of a single enforcement body, the consultation also invites views on whether such a body should have a role in the enforcement of statutory sick pay; in relation to discrimination and harassment in the workplace; the enforcement of employment tribunal awards; and in any other areas.

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