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The General Election result: what next for employment law?

  • United Kingdom
  • Employment law

13-12-2019

With the Conservative Party winning a majority in the General Election, we consider the implications for employment law below.

Manifesto commitments

Low-paid work and the gig economy

The manifesto promised measures that protect those in low-paid work and the gig economy, for example by:

  • creating a single enforcement body and “cracking down” on any employer abusing employment law
  • ensuring that workers have the right to request a more predictable contract and other reasonable protections
  • increasing the National Living Wage to two thirds of average earnings (forecast to be £10.50 per hour) and widening its reach to workers over 21 by 2024

Equality and diversity

In relation to “fairness in the workplace”, the manifesto promised to:

  • encourage flexible working and consult on making this the default position unless employers have good reasons not to allow it
  • legislate to allow parents to take extended leave for neonatal care
  • look at ways to make it easier for fathers to take paternity leave
  • extend the entitlement to leave for unpaid carers to one week

Immigration

The manifesto commits the Conservatives to introducing a “firmer and fairer” Australian-style points-based immigration system and creating bespoke visa schemes for new migrants.

Labour law

The Government will require that a minimum service operates during transport strikes.

Changes already in the pipeline

IR35

It has been anticipated that responsibility for determining the tax status of workers who supply their personal services via an intermediary, such as their personal services company, will follow the public sector changes and transfer to medium or large private sector end users from April 2020. Liability for any unpaid tax will also change (read our briefing). While the manifesto was silent on IR35, Sajid Javid stated during election campaigning that the Conservatives would review the IR35 changes as part of the Party’s commitment to support the self-employed. However, the extent of any review is currently unknown and, until further information is forthcoming, organisations should continue to plan for April 2020. Next week’s new session of Parliament, including the Queen’s Speech and publication of draft finance legislation, may provide an update on the Government’s IR35 plans.

Pending legislative change

The right to receive a written statement of terms is due to be extended to all new workers from 6 April 2020 and there are some new inclusions for employees (read our briefing). In addition, a 52 week reference period for statutory holiday pay and a lower threshold for setting up information and consultation arrangements will apply. Also from 6 April next year, those engaging agency workers will need to provide a “key facts” statement and the Swedish derogation will be repealed.

Outstanding consultations

A number of consultations closed during 2019 and await a Government response or implementing legislation. These include consultations on: reforming family leave and pay; providing casual workers with a right to reasonable notice of work schedules and with compensation for shifts cancelled without reasonable notice; introducing a right for non-disabled employees to request workplace modifications; introducing mandatory ethnicity pay reporting; and, strengthening sexual harassment and equality protection. While we cannot be certain whether these consultations will be taken forward, BEIS statements under the previous Government suggest that the following changes to legislation may happen if parliamentary time allows next year:

  • extend the redundancy protection period during which an employee on maternity leave must be offered suitable alternative employment (if it exists) by commencing when she informs the employer that she is pregnant and ending six months after return to work
  • provide that a confidentiality (non-disclosure) clause cannot prevent disclosures to the police, regulated health, care and legal professionals and require that limitations imposed by confidentiality clauses are clearly set out and explained by legal advisers. Failure to comply might render clauses unenforceable
  • amend the Equality Act to: re-introduce protection from harassment by a third party; extend harassment protection to interns and volunteers; and lengthen the period within which a discrimination claim must be brought in an Employment Tribunal to six months
  • a new statutory Code of Practice on harassment at work is also expected to be published in 2020, aimed at encouraging employers to be more proactive in preventing harassment.

Comment

The above measures reflect a Government which will, according to its manifesto, be more focused on its promise to “Get Brexit Done” rather than on employment law change. Inevitably, future employment policy will be influenced by EU conditions upon a future trade deal. We will update you in the New Year on the impact of Brexit on employment law.