27 August 2019 by Paul McFarlane
Ahead of the summer recess the government published a raft of consultation papers with proposals in employment law
Currently, before making a woman on maternity leave redundant, an employer must offer her a suitable alternative vacancy, where one is available, with the employer or an associated employer. Similar protection exists for those on adoption leave.
The government published its response to a consultation on the issue and has stated it intends to bring forward legislation ‘when Parliamentary time allows’ to expand this protection.
The period of redundancy protection will begin at the point a woman notifies her employer of her pregnancy, whether orally or in writing, and will last until six months after the end of the maternity leave (notwithstanding any additional leave the woman may add onto the end of the maternity leave). For those on adoption leave, the period will be extended to six months after the end of adoption leave.
A further consultation will take place on how to structure a period of extended redundancy protection for those returning from shared parental leave.
The government will also establish a taskforce of employer and family representative groups to make recommendations on what improvements can be made to the information available to employers and families on pregnancy and maternity discrimination.
It will also develop an action plan on what steps can be taken to facilitate pregnant women and new mothers staying in work.
The government has published a paper containing three separate consultations on proposals to help working parents.
The first consultation focuses on family-related leave and pay, including maternity, paternity, adoption, parental and shared parental leave.
It contains no detailed proposals, but seeks views on how best to reform the system to meet the government’s policy objectives, which include increasing paternal involvement in childcare, giving families more flexibility, and supporting mothers to return to work and stay in work.
The second consultation concerns plans to introduce a new right to neonatal care leave and pay. The government proposes that parents of premature babies who need at least two weeks or more of neonatal care will receive equivalent additional leave, paid at the usual statutory rate, to be taken at the end of their maternity or paternity leave.
Views are sought on the detail, including notice requirements and a cap on the number of weeks’ leave and pay.
The third consultation covers how to increase transparency around employers’ policies on flexible working and family-related leave and pay. This includes a proposal to require employers with more than 250 employees to publish these policies on their website, and possibly also on a government database like the gender pay gap portal.
The first consultation closes on 29 November and the second and third consultations close on 11 October 2019.
The government seeks views on proposals to introduce new rights for workers to be given reasonable notice of their working hours and to be compensated where their shifts are cancelled or curtailed without reasonable notice.
The consultation asks for views on whether the new rights should be ‘day-one’ rights, what ‘reasonable notice’ should be in respect of both rights, and whether this should vary depending on the type of work done or the industry in which the worker is employed.
The consultation states that the government will adopt the Low Pay Commission’s recommendation for workers to have a right to switch to a contract that reflects their normal working hours, going further than its previous commitment in the Good Work Plan to introduce a right to request such a contract. However, no timescale is given for when this right will be introduced.
The government published a response to its consultation on proposals to prevent the misuse of confidentiality clauses (sometimes known as NDAs) in situations of workplace harassment or discrimination.
The government accepted that confidentiality clauses can serve a legitimate purpose in both employment contracts and settlement agreements. However, using such clauses to prevent victims from speaking out, or to intimidate them, must be prohibited.
The government has committed to introducing new legislation to ensure that confidentiality clauses cannot prevent individuals making a disclosure to the police, regulated health and care professionals or legal professionals. There will be new requirements for the limitations of a confidentiality clause to be clear to those signing them, and for the mandatory independent legal advice on a settlement agreement to include the limitations of any confidentiality clause.
Importantly the government has requested for new guidance to be produced by the EHRC, SRA and ACAS to clarify the law and good practice in this area. Confidentiality clauses that do not comply with the new legal requirements will be void.
In relation to employment contracts, the limitationsof any confidentiality clause will be added to the list of written employment particulars that must be given to all employees, and a failure to comply with this will be enforceable in the usual way. The new legislation will be brought forward ‘when Parliamentary time allows’.
The government has decided against the proposal that standard confidentiality wording should be introduced. The government also decided against any reporting duty relating to the use of confidentiality clauses.
The government is also consulting on a range of measures to reduce ill
health-related job loss, seeking views on how employers can best support disabled people and people with long-term health conditions to stay, and thrive, in work.
It sets out proposals to encourage all employers to take positive action to support employees who are managing health conditions in work and to manage sickness absence more effectively.
The deadline for submissions is 7 October.
In Phoenix House Ltd v Stockman, the Employment Appeal Tribunal (EAT), dismissed an appeal held by an employer, that the covert recording of a meeting by an employee necessarily undermined the relationship of mutual trust and confidence.
The EAT held such recordings could take place for a variety of reasons: to keep a record, to protect the employee from a risk of misrepresentation, or to enable the employee to obtain legal advice.
However, it would be good practice for parties to communicate an intention to record a meeting; it would generally amount to misconduct not to do so.
Employers who are concerned that employees may seek to record meetings should ensure that employees are informed at the outset of the meeting that they should not make a recording
of it – this will make it easier for the employer subsequently to treat this as an act of misconduct.
Similarly, employers may wish to consider expressly including the covert recording of meetings as an example of misconduct or gross misconduct in a disciplinary policy in order to better protect their position.