16 November 2022
Law at Work - November 2022 – 3 of 5 Insights
Potential new protections for employees are currently being debated in Parliament this autumn. If the Bills are passed, they would provide unpaid leave for carers, widen access to request flexible working and extend rights to protection from redundancy during and after family leave and pregnancy.
After somewhat of a hiatus during the past few years, in part because of the Coronavirus pandemic, but also for political reasons, the introduction of new employment legislation has faltered. These new Bills have had their origins in government consultation but have now been introduced by individual MPs, rather than by government ministers, as Private Members' Bills. While it is common for such an approach to be unsuccessful, given the nature of these Bills it is more likely that they will see their way onto the statute book in one form or another over the coming months.
Referred to in the Conservative Party's 2019 manifesto and included in the Queen's Speech later that year was the proposal that there would be consultation on making flexible working an employer's default position unless the employer had a good reason not to allow it. Currently, employees need to have been in a job for six months before making a flexible working request.
The Employment Relations (Flexible Working) Bill, if passed, will provide employees with a day-one right to request flexible working from their employer. It will introduce a requirement for employers to consult with the employee before rejecting their flexible working request and remove the requirement that the employee must explain in the statutory request what effect the change would have on the employer and how that might be dealt with. Two statutory requests will be allowed in any 12-month period (rather than one currently). The employer will need to make their decision in two rather than the current three months.
The measures aim to focus both parties' efforts on identifying a flexible arrangement which might be possible, rather than not, and to accelerate the administrative process. Ideally though the greatest transparency would be for employers to be upfront about flexible working opportunities at the recruitment stage, negating the need for employees to make requests once in post.
Following a consultation during 2020 the government confirmed that it would introduce a statutory right to give employees who are also unpaid carers a week of unpaid leave each year to provide care. Currently employees would need to take time off in accordance with procedures required under any of time off for dependants leave, parental leave or annual leave.
If passed, the Carer's Leave Bill would most likely become law in 2024. It would provide a day one right entitling an employee to one week's unpaid leave per year (which could be in increments of half-days or individual days) where they are providing or arranging care for a dependant (broadly speaking a close relative) who would reasonably rely on the employee to provide or arrange care.
"Long term care need" is a physical or mental illness or injury which is likely to require care for more than three months, or falls under the legal definition of a disability, or care is required for a reason connected with old age. Employees will not need to provide evidence of how the leave is used or who it will be used for. This should reduce the administrative burden on employers. Their employment protections will mirror those associated with other forms of family-related leave.
Last month the government announced that it was backing the Protection from Redundancy (Pregnancy and Family Leave) Bill which is also being scrutinised by Parliament.
Currently, if an employee on maternity leave, shared parental leave or adoption leave is made redundant, their employer must offer them a suitable alternative vacancy if one exists, ahead of anyone else who is provisionally selected for redundancy in the same pool.
Research on the prevalence and nature of pregnancy discrimination and disadvantage in the workplace was commissioned by the government with the Human Rights Commission and the resultswere published in 2017. Based on a survey of over 3,000 employers and a similar number of employees, research found that 11% of mothers reported that they were either dismissed, made redundant or treated so badly they had to leave their job, where others in the workplace were not. Scaled up to the general population this would account for as many as 54,000 mothers per year.
Following Government consultation in 2019 with a view to extending redundancy protection for pregnant employees and those on family leave, the Government published a Response later that year with a view to making this happen. The 2019 Queen's Speech committed to these new rights as part of an employment bill, but progress has been slow. The Government is now supporting a Private Member's Bill but even if passed it will require regulations to set out the details before redundancy procedure changes.
The Bill, if passed, will provide protection against redundancy both during an employee's maternity, adoption or shared parental leave and for a period of six months afterwards. The same protection will apply during an employee's pregnancy, and afterwards, so a woman who has miscarried before informing her employer of her pregnancy will also benefit from the redundancy protection. Employers would be required to offer suitable alternative employment where it exists and failure to do so may provide grounds for the dismissal to be treated as unfair.
Despite an extension of redundancy protection, it would still be possible for an employer to make a pregnant employee, or one returning to work after family leave, redundant, in the same way as is currently possible for women on maternity leave who have provisionally been selected for redundancy. Either there may be no suitable alternative employment, or there are two or more individuals in the same pool who could take priority over other candidates. This situation could arise because of the longer period of protection being proposed.
With the change of Prime Minister, and the political landscape having changed significantly in the past few weeks, there is still much uncertainty about which direction employment law policy will take. Currently however it does look more likely than not that these three Private Members' Bills will become law.
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16 November 2022
16 November 2022
by Ruth Moffett
16 November 2022
by Multiple authors
by multiple authors