What changes to employment law can we expect in the near future following the outcome of the general election, as we see the formation of the new Government and we wait for the ink to dry on the goatskin parchment ready for the Queen’s Speech?
European employment rights after Brexit
However the Government’s plans and priorities towards Brexit may or may not be realigned, the legislative programme for the new parliament is bound to be dominated by the so-called Great Repeal Bill, which is intended to copy across all existing European legislation into domestic law, repealing the European Communities Act 1972 and seeking to end the jurisdiction of the European Court of Justice. This process will ultimately involve overhauling all the primary and secondary legislation which implement EU legislation, for example the Working Time Regulations.
The implementation of other proposals from the Conservative manifesto will have a more immediate impact on employment law, and we may in particular see included in the Queen’s Speech those proposals which are likely to enjoy broad cross-party support.
Family leave rights
Two proposals stand out here. Firstly it is planned to introduce a statutory right to take time off, for between 3 months and 12 months, for employees whose family members require full-time care. The employee taking leave would retain their employment rights and be entitled to return to the same job. This right would expand on the current rights to take reasonable time off to deal with emergencies involving dependants. Its take-up may be limited however because the leave would be unpaid. It is also possible that this right would be limited to larger employers only, for example those with at least 250 employees. Secondly a new right to child bereavement leave would be introduced, possibly providing the right to up to two weeks’ paid leave (whether at actual pay or at a statutory pay-rate).
Leave for training
Currently only people employed by large employers, those with 250 or more employees, have the statutory right to request time off for training. It is proposed that this right would be extended to all employees.
Mental health and the Equality Act
The Conservative manifesto included a commitment to expand the scope of disability discrimination under the Equality Act so as to cover those suffering from episodic and fluctuating mental health conditions, for example depression or bipolar disorder, which may not currently satisfy the definition of a disability. How this would be achieved is not clear, but one option would be to specify certain mental health conditions as deemed disabilities, in the same way as cancer or multiple sclerosis.
Equality gap reporting
The challenge to the Government here may be that these proposals are seen as not going far enough, and so are liable to significant amendment before coming law. There was a promise in the manifesto to require large employers to publish more data on the gender pay gap, but no mention of introducing penalties for non-compliance with the reporting obligations. There was also a promise to introduce for large employers a new mandatory reporting requirement on the “race gap” in terms of pay disparity between employees from different ethnic backgrounds.
Worker voice at board level
The manifesto promise on this front would only apply to listed companies. The proposal is that listed companies would be required to adopt one of a selection of measures to improve employee representation at board level. The options would be the nomination of a board director from the workforce, creation of a formal employee advisory council or assigning specific responsibility for employee representation to a designated non-executive director.
Employment status and the gig economy
In the longer term (and here the crystal ball starts clouding over) there is a commitment to follow up the outcomes of the Taylor Review of modern employment practices with measures to ensure that the interests of those working in the gig economy, as well as those of traditional employees and the self-employed, are properly protected.
While the current state of uncertainty extends to the direction and timing of employment law reform, we can expect significant legislative changes to take shape in this area over the coming months.