Employment and Immigration Law Update - Quick fire August 2019

22 August 2019

Criminal records, workplace rights after Brexit, the Acas Annual Report and new consultation papers from the Government are all covered in this month's Quick fire.

New consultation: proposals for families

The Government has published a new consultation paper, covering three separate consultations on proposals to help working families.

The first consultation seeks views on potential reforms to parental leave and pay entitlements. It includes a suggestion that the amount of paternity leave and/or pay should be increased, as well as looking at whether the current systems of shared parental leave and unpaid parental leave should be reformed. It also seeks views on whether the entire system of current family leave should be given a radical overhaul, potentially moving to a single, family set of entitlements. This part of the consultation closes on 29 November 2019.

The second consultation relates to proposals for the introduction of a new right to additional leave for parents of babies who need a period of neonatal care of two or more weeks. The proposal is for an additional week of leave for each week that the baby is in neonatal care, to be tacked onto the end of the period of maternity or paternity leave and paid at the usual statutory rate (subject to meeting the qualifying conditions). 

The third consultation seeks views on whether large employers (with over 250 employees) should be required to publish their family-related leave and/or flexible working policies on their websites. In addition, it asks whether employers should have to report key information from their policies on a publically-accessible database. It also seeks views on whether employers should be required to specify in job adverts whether flexible working would be considered.

Both the second and third parts of the consultation close on 11 October 2019.  

Workplace rights after Brexit

The Government has published guidance on what will happen to workplace rights in the event of a no-deal Brexit.

The (very short) guidance states that in most cases, there will be no change to workplace rights. The only changes it identifies is in relation to employer insolvency and European Works Councils (EWCs).
In the event of a UK employee working in an EU country for a UK employer, the individual may not be protected in the event of the employer’s insolvency unless protection in that country is extended to non-EU employers and employees.

Requests for new European Works Councils to be established will no longer be accepted following Brexit. Whether existing EWC representatives can continue to be involved in the EWC will be a matter to be decided by the company concerned. The guidance states that it “would encourage businesses to continue to allow UK workers to be represented on EWCs on a voluntary basis”.

Criminal records

The Government has announced proposals to amend the existing criminal records legislation, making reforms to the information that must be disclosed to employers.

The changes will mean that:

  • less serious offences of more than four years will not have to be disclosed to employers once the rehabilitation period has ended
  • the period for which sentences of four years or less and community sentences have to be disclosed will be reduced.

It is hoped that the proposed changes will remove some of the barriers currently faced by ex-offenders when seeking employment. It will mean that adults who committed non-violent offences in childhood will no longer be criminalised for life. The reforms will not apply to those working with children or vulnerable adults, in national security roles or positions of public trust. 

Further details of the reforms will be published following further consultation with stakeholders.

Confidentiality clauses: Government response

The Government has published its response to the recent consultation on proposals to prevent the misuse of confidentiality clauses (sometimes referred to as ‘non-disclosure agreements’ or NDAs).

The response confirms that the Government will seek to introduce new legislation to clarify that individuals cannot be prevented from making a disclosure to the police, regulated health and care professionals or legal professionals. Confidentiality clauses will be required to clearly set out their limitations. The current requirement for individuals to take independent legal advice on the terms and effect of a settlement agreement will be extended to include advice on the limitations of any confidentiality clause.

The Government is not planning to introduce any standard wording for confidentiality clauses, but proposes new guidance to clarify the law and good practice. Confidentiality clauses that do not comply with the new requirements will be void (although the remainder of the settlement agreement will be valid).

These reforms go some way to implement recommendations of the Women and Equalities Select Committee, following their 2018 report on the issue of harassment in the workplace and their further report on the use of confidentiality clauses published earlier this year. The proposals will be regarded by some as not going far enough.

There is currently no proposed timescale for the implementation of these changes. New legislation will be brought forward “when Parliamentary time allows”.

Redundancy protection: Government response

The Government has published a response to its recent consultation on extending redundancy protection for pregnant women and new parents returning from maternity, adoption and shared parental leave.

Currently, women on maternity leave must be offered any suitable alternative employment that is available if their role is redundant, in preference to other employees. A similar right applies to those on adoption leave. The government proposes to extend this protection so that it begins at the point a woman notifies her employer of her pregnancy, and will last until six months after the end of her maternity leave. This additional period of protection will also apply to those taking adoption leave. A similar protection will be extended to those taking shared parental leave, although the government will work with stakeholders to develop how this extended protection will work in practice.

There is currently no proposed timescale for the implementation of these changes. New legislation will be brought forward “when Parliamentary time allows”. It seems likely that a combined package of legislative reforms will be introduced once the outcome to the ongoing consultation on sexual harassment and the possible extension of the time limit for all claims of discrimination, which we covered in last month’s issue, is published.

This article is from the August 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. Law covered as at August 2019.

The content of this article is for general information only. For further information please contact Liz Stevens or another member of Birketts' Employment Law Team.