The Government’s Proposed Changes to Employment Law Legislation

Year Published: 2019

In November 2016, the government launched a review of employment practices. The main purpose was to consider the implications of new models of working, including those used in the GIG economy, on the rights and responsibilities of workers, as well as on employer freedoms and obligations. For this, an independent review was undertaken and published what is known as the ‘Taylor Review’ which ultimately suggests to the government proposed changes to employment law legislation.

Warren Moores, Associate Employment Law & HR Solicitor at SAS Daniels

Warren Moores, Associate Employment Law & HR Solicitor

After further enquiries and consultations, the government produced ‘The Good Work Plan’ and opened a number of further consultations. We now have some of the government proposals for legislation which are set out below.

Coming into force on 18 December 2019:

  • There will be a naming and shaming scheme for employers who do not pay tribunal awards within a reasonable timeframe. Successful claimants can trigger the scheme by filling in and returning a penalty enforcement notice.

Coming into force on 6 April 2019:

  • Payslips will need to be given to all workers (not just employees) for pay periods beginning on or after 6 April 2019.

Coming into force on 6 April 2020:

  • All employees are currently entitled to a written statement of particulars within two months of starting employment. This is normally given in the form of a contract of employment and must contain certain information. From the above date, workers will also be entitled to receive written particulars, however, the particulars will need to be provided no later than the worker’s first day and will also need to cover detail on the expected days of work, whether this may be varied and how.
  • Holiday pay should be calculated on the basis of average pay over 52 weeks instead of 12 weeks. The government will also launch a campaign to boost awareness of holidays and holiday pay rights among employers and employees.
  • Regulation 10 of the Agency Worker Regulations 2010 will be abolished. The regulation currently excludes agency workers from being entitled to the same pay and rights as directly employed workers if they have a permanent contract of employment with the agency which pays a minimum amount between assignments and satisfies a number of other conditions. This is known as ‘Swedish Derogation’ and has been much criticised by the government as agencies are simply using these contracts to reduce the pay bill.

Other changes to employment law legislation: 

There are a number of further proposals which have been agreed, but with an implementation date to be determined. These are:

  • A right for all workers to request a more predictable and stable contract after 26 weeks’ service. It will be interesting to see the detail of this provision since the very nature of workers is the ad hoc flexible nature employers normally require them for. Very often employers take workers on for ad hoc work, however, over time control creeps in and the worker starts to do the same hours on the same days. If left unchecked there is often a risk for employers that the worker could now be deemed an employee because the nature of the relationship has changed. Therefore, this change could be beneficial to employers and they could use this period to reassess their current relationship with the worker.
  • The period of no work that breaks continuity of service will be extended from one week to one month. This is because casual employees sometimes find it difficult to accrue certain rights which only come with time, like the right to claim unfair dismissal requires two years’ service. Some employers have in the past ended employee arrangements for a week to break that continuity of service only to again restart the relationship. This can often be done because employers can manage with not having the casual employee for one week, but increasing this period to a month would give some better protection to casual employees.
  • Legislation to stop employers deducting money from staff tips such as an administration fee.

Unfortunately the government have failed to grasp how to deal with a number of topical issues such as employment status. Therefore most significant developments in this area are likely to come from case law over the next few years, such as the Court of Appeal’s decision in Uber BV and ors v Aslam which is likely to be appealed to the Supreme Court next year.  There are also different tests for the definition of ‘employment’ in tax law compared to employment law and one recommendation is they should effectively both use the same test. The government has said it plans to keep the difference to ‘an absolute minimum’ but unhelpfully does not say how it intends to do this.

Although on initial appearance there seems to be a number of changes, this is mostly a collection of small changes. In my view they will make little difference to the average worker. We still do not have full information on most of the proposals, but ultimately a lot of discretion will still remain with the employer and these changes are unlikely to hand much power to workers.

For advice on the government’s proposed changes to employment law legislation, please contact Warren Moores in our Employment Law & HR team on 0161 475 1225.

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