In the Queen’s speech in December 2019 the Government announced its intention to bring about changes to employment laws in a new Employment Bill. These changes included provisions relating to carers leave, extension of protection for employees on maternity leave, rights regarding tips and gratuities, the right to request a more predictable and stable contract and making flexible working the default position. However, no Employment Bill has yet been produced despite the fact that the Government has continued to express its intention to introduce such changes “when parliamentary time allows”. As a result, backbench MPs have taken matters into their own hands and introduced various Private Members’ Bills which cover much of the same ground as the intended Employment Bill. In general, few Private Members’ Bills become law. However, the Government has announced its support for some of the bills making their way through parliament, increasing the chances of these bills coming into force.
Employment Relations (Flexible Working) Bill
The Bill amends the right to request flexible working in part 8A (sections 80F and 80G) of the Employment Rights Act 1996. The Bill will:
- introduce a requirement for employers to consult with the employee before rejecting their flexible working request;
- allow an employee to make two statutory requests in any 12-month period (rather than the current provision which allows just one request);
- reduce the decision period within which an employer is required to administer the statutory request from three months to two months; 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.
The Bill passed its second reading on 28 October 2022 and the Government announced its support for the Bill on 7 November 2022. In addition, on 5 December the Government published its response to consultation on flexible working rights. Not all of the provisions in the response are reflected in the current draft of the Bill: One of the key elements which the Government supports, but which is not in the Bill is the right to request flexible working being a day one right. This will likely be introduced by way of secondary legislation once the Bill has been passed. It should also be noted that although the day one right is a key part of the amendments to the current regime, the Government has emphasised that remains a right to request flexible working, not a right to have.
The response has also made it clear that there will be no change to the list of eight reasons the employer has to refuse a request for flexible working.
Carer’s Leave Bill
The Bill provides powers to make regulations to create an entitlement to Carer’s Leave for employees by amending or inserting new provisions into the Employment Rights Act 1996. The Bill proposes the following:
- The carer’s leave will be available to employees for caring for a dependant with a long-term care need.
- All employees who meet the eligibility conditions will be entitled to this leave, regardless of how long they have worked for their employer, meaning that leave will be available from the first day of employment.
- The leave will be unpaid.
- The leave can be taken flexibly either as half-days or individual days, up to a week and must be taken over a 12-month period.
- Employees will not be required to provide evidence in relation to a request for Carer’s Leave.
- The Bill also provides that employees taking Carer’s Leave will have the same employment protections as associated with other forms of family related leave, including protection from dismissal or detriment as a result of having taken the leave.
On 21 October the Government announced that it was backing this Bill. The Bill’s third reading is scheduled to take place on 3 February 2023.
Employment (Allocation of Tips) Bill
The purpose of the Bill is to create a legal obligation on employers to allocate all tips, gratuities and service charges which they are paid or which they exercise control or significant influence over to workers without any deductions. The Bill also:
- Requires employers to ensure that the distribution of these qualifying tips between workers is fair.
- Aims to increase fairness for employers who already allocate all tips to workers by ensuring that all employers follow the same rules and by preventing a return to further unfair tipping practices in the future.
- Sets out that employers must comply with a statutory code of practice (“the Code”). The Code will set out the principles of fairness and transparency, reflecting (as far as reasonably possible) the multitude of ways that tips are reasonably collected by employers and received by workers.
- Requires a written policy to be made available to workers by employers. The policy must set out how tips are dealt with and include how tips are allocated between workers. Employers will also be required to share records of the qualifying tips which they have received and the amount of those tips which have been allocated to a worker.
The Bill also provides for remedies to be made available to the Employment Tribunal in cases where employers fail to comply with the Code. These include allowing tribunals to order the employer to revise the allocation of tips or to order an employer to make a payment to one or more of their workers.
The Government announced that it was backing this Bill on 15 July 2022.
Neonatal Care (Leave and Pay) Bill
The Bill provides powers to make regulations to create an entitlement to Neonatal Care Leave and Pay for eligible employees. The Bill provides for the following:
- Neonatal Care Leave – a right for employed parents to be absent from work for a prescribed period (to be set at a minimum of one week) in respect of a child who is receiving, or has received, neonatal care. All employees who meet the eligibility conditions will be entitled to this leave, regardless of how long they have worked for their employer. The leave must be taken before the end of a period of at least 68 weeks beginning with the date of the child’s birth.
- Neonatal Care Pay – a right for those eligible parents who meet minimum requirements relating to continuity of employment (at least 26 weeks with their current employer) and earnings to be paid during that leave at a prescribed rate. In line with other entitlements to paid statutory leave, the Bill allows provision to be made for employers to reclaim payments from the Government.
- Parents taking Neonatal Care Leave will have the same employment protections as those associated with other forms of family related leave including protection from dismissal or detriment as a result of having taken leave
The Government announced that it was backing this Bill on 15 July 2022.
Protection from Redundancy (Pregnancy and Family Leave) Bill
The Bill inserts provisions into the Employment Rights Act 1996 to:
- extend the protected period during which the right to be offered suitable alternative vacancies exists. The protected period would run from when a woman formally notifies her employer of her pregnancy up to 18 months after the birth; and
- introduce a new power so that equivalent legislative provision for redundancy protection can apply to those on shared parental leave or adoption leave.
On 21 October the Government announced that it was backing this Bill.
Worker Protection (Amendment of Equality Act 2010) Bill
The Bill intends to make the following changes:
- Create employers’ liability for harassment of their employees by third parties;
- Introduces a duty on employers to take all reasonable steps to prevent sexual harassment of their employees;
- Provides for a compensation uplift of up to 25% on the amount that the tribunal can award in sexual harassment cases where there has been a breach of the employer duty.
Liability for harassment of an employee by third parties in the course of employment existed before 2013. However, under the previous legislation the employer would need to know about two previous incidents before they were liable. There is no such requirement in the draft bill meaning that the bill goes beyond the previous legislation. In addition, the draft bill will now mean that there is a positive duty on all employers to prevent sexual harassment.
At the second reading, which took place on 21 October 2022, the Government advised that it was supporting this Bill.
The Private Members’ Bills still have several stages to pass through before they become law. In addition, many of them provide for the details of the changes to be included in regulations. There are also other pieces of legislation concerning workers’ rights which are by way of Private Members’ Bill and which the Government is not supporting, such as the Employment and Trade Union Rights (Dismissal and Re-engagement) Bill. However, the fact that the Government has expressed its support for certain of these Bills does increase the likelihood of the proposals coming into force.