This week’s blog focuses on recent government consultations in areas that may impact employment law. This will give you a summary of the key propositions for change.
1. National Disability Strategy
The strategy sets out the government’s future plans to “level up” all aspects of everyday life for disabled people across all sectors. The National Disability Strategy is split into three parts. Part one talks of immediate reforms that can be made to change the everyday lives of those with disabilities. Part two focuses on including disabled people in policy making and service disability. Part three sets out all government departments’ commitment to these addressing these goals. For the purpose of the blog post, we will focus on the impact of employment law, largely found in part one.
The strategy aims to tackle the disability employment gap, which is currently at a staggering 28.6 per cent. Relevant employment related aspects of the strategy include:
- The creation of an online Advice Hub by the Department for Business, Energy and Industrial Strategy (BEIS), in conjunction with ACAS. The remit is to provide employers and employees with advice around employment rights for disabled people, including around disability discrimination in the workplace, flexible working, fairness in redundancy situations, rights and obligations around reasonable adjustments and occupational and mental health.
- Piloting an Access to Work Adjustment passports system. This is designed to ensure a smooth transition into employment and to support disabled people between jobs. It will reduce the need to repeat disability assessments. A trial scheme is currently in operation. If successful, passports will be rolled out to all disabled people entering the job market. It will give employers an indication of possible support for each employee for the particular disability they have.
- Progressing the commitment to introducing one week’s unpaid carers’ leave. This would be a statutory right for those that qualify as an employee. This would give one week’s leave for an employee who is caring for a disabled person living in the same household, or anyone else who “reasonably relies on employees for care.” A number of questions still surround this benefit including:
- Will it be solely for the purpose of caring for a disabled family member (for example hospital appointments) or can an employee take the time if they need a break?
- Does the one week have to be taken in a single block of one week or can it be fragmented?
- Consulting on introducing workforce reporting for businesses with more than 250 staff on the number of disabled people. This is designed to improve inclusive practice across large employers and to build on existing gender reporting requirements.
- Consulting on flexible working as a default. BEIS will launch a consultation by the end of 2021 regarding the possibility of making flexible working the default position, unless employers have a good reason not to permit it. Inflexible workplaces were identified as one of the key exclusionary factors for disabled people in employment.
2. Worker’s watchdog
As part of the government’s “Good Work Plan”, in late 2019 they consulted on establishing a new “Single Enforcement Body” (SEB) for areas of employment law. The idea was to merge a number of different agencies dealing with enforcement of employment rights into one body. The consultation was wide and included contributions from individual employees and employers, trade unions and associations, public bodies, charities, academics and legal representatives. The consultation wanted to establish views on the remit of the body, how it would interact with other enforcement bodies, the approach to compliance and the powers the body would need.
Overall the government has decided to proceed with its plan to introduce the SEB. It will take over the duties of HRMC’s enforcement of minimum wage and SSO dispute resolution process, Employment Agency Standards Inspectorate, certain powers by the BEIS and the Employment Agency Standards Inspectorate as well as adding some further powers. The SEB is thought to be more transparent, comprehensive and visible. This should benefit employees, allowing their rights to be enforced more quickly than in lengthy tribunal proceedings, and employers, with a single body to know whose rules to comply with as well as creating a level playing field.
The SEB will have the following overarching responsibilities:
- Tackling modern slavery
- Enforcing the minimum wage
- Protecting agency workers
These duties and their enforcement are currently "fragmented" across three separate bodies but will now be brought under one roof in the hope of improving efficiency, cohesion and ensuring that businesses which break the rules aren’t able to evade the consequences.
What powers will the SEB have?
- In addition to enforcing the current powers belonging to these three existing agencies, the new body will also be able to ensure protection for vulnerable workers, particularly to make sure that they receive the holiday and statutory sick pay to which they are entitled.
- This will benefit employees as they will not have to go through the lengthy employment tribunal process to ensure these rights are enforced.
- The body will be able to fine employers in penalties of up to £20,000 per worker if they breach any regulations, a continuation of the Naming and Shaming scheme which calls out companies who fail to pay their workers.
In addition to this the government has claimed the SEB will be more proactive in finding labour abuses by examining data for abuses. Data from multiple agencies will be checked in the enforcement process.
Thoughts on the proposals
As raised in the consultation – the effectiveness of SEB almost exclusively depends on the extent of government funding. If under funded it is unlikely to do much beyond being a “brand change” for regulatory bodies. The government have promised adequate funding, but this is yet to be seen. Under funding of the regulatory body turns an apparently powerful regulatory body into nothing more than a “paper tiger.”
One of the most interesting elements of the report is the reference that the SEB will cover the entire supply chain of an employer. The government response specifically declared brands have a responsibility to conduct due diligence across its supply chains to maintain working conditions. This matches growing international trends in increasing mandatory ESG due diligence across supply chains, the recent EU directive being an example of this. It is yet to be seen how the government will act on this, but the door is open to mandatory human rights due diligence which would exact much more onerous conditions on employers, entailing a fundamental reverse of policy from the UK’s National Action Plan on Business and Human Rights.
Ultimately many uncertainties still remain despite the publishing of the report. The SEB will form part of the government’s new Employment Law Bill, so it is unlikely to be of drastic consequence in the immediate future. Whether in the process of legislating the SEB will be anything more substantive than a “brand change” for enforcement of employment rights is yet to be seen.
3. Menopause in the workplace
The Women and Equalities Committee have launched an inquiry around menopause in the workplace. A 2019 survey found 60 per cent of women, normally in the 45 to 55 age group, were negatively impacted due to menopausal symptoms with many leaving employment for an undefined period of time. This could mean that women are leaving businesses when at the peak of their experience, as women in that group are likely to be eligible for senior roles, and therefore their leaving reduces diversity levels.
Those suffering from menopause display a variety of symptoms. Menopausal symptoms are potentially covered by the Equality Act in certain circumstances. For example, dismissing an employee for poor performance that can be explained by menopausal symptoms has been held to be directly discriminatory (in the case of Merchant v BT plc (2012)). The purpose of the inquiry is to further the “roadmap” on gender equality on by finding out how the government can better support those experiencing menopause.
The Committee is accepting evidence until Friday 17 September 2021 from individuals and organisations on one or all of the following issues.
- What is the nature and the extent of discrimination faced by women experiencing the menopause?
- How does this impact wider society?
- What is the economic impact of menopause discrimination?
- How can businesses factor in the needs of employees going through the menopause?
- How can practices addressing workplace discrimination relating to menopause be implemented? For example, through guidance, advice, adjustments, or enforcement.
- What are examples of best or most inclusive practices?
- How should people who experience the menopause but do not identify as women be supported in relation to menopause and the workplace?
- How well does current legislation protect women from discrimination in the workplace associated with the menopause?
- Should current legislation be amended?
- What further legislation is required to enable employers to put in place a workplace menopause policy to protect people going through the menopause whilst at work?
- How effective has Government action been at addressing workplace discrimination related to the menopause, and what more can the Government do to address this issue?
- How effectively is the Government Equalities Office working across Government to embed a strategic approach to addressing the impact of menopause in the workplace?
You can submit your evidence here.
4. Information Commissioner’s Office – employment practices
The Information Commissioner’s Office (ICO) is calling for views to help shape its new data protection and employment practices guidance. The ICO is a body responsible for, amongst other things, proper implementation and enforcement of data protection rules as set out in the General Data Protection Regulation (GDPR) and the Data Protect Act 2018. Its guide for Employment Practices Codes have not been updated since 2011 and the Supplementary Guidance has not been updated since 2005. The ICO notes that much has changed since the guidance was published, and there has indeed been a significant seismic shift in data protection law over the past ten years.
The ICO is looking at giving policy guidance on updated legislation and case law and the implications for employment practices in. They aim to create practical guidance where personal data is used, that supports both employers and staff.
The deadline for submitting views is 21 October 2021. The ICO is looking for views from relevant stakeholders including employers, professional associations, those representing the interests of staff, recruitment agencies, employment dispute resolution bodies, workers, contractors, volunteers, gig and platform workers, employees and retirees on the following:
- Whether you agree with the proposed approach.
- Suggestions for areas and changes to focus on. Whether the above or any others.
- Other changes outside of data protection law that are relevant, whether legal or social.
- Personal case studies on the issues or any other matters.
You can submit your thoughts here.
With special thanks to Alex Evans, a current paralegal in the Employment team, who assisted with preparing this blog.
If you require further information about anything covered in this blog, please contact Shehnal Amin or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, August 2021