A legal look ahead to 2020 policies

Employment law updates for HR professionals

In the midst of the Brexit chaos, it is unsurprising that many employers may have missed the various new employment laws in the pipeline. Many are still under consultation, but, if they are carried through, they will reflect some of the suggestions which have been put forward in the recent Good Work plan and strengthen workers’ rights in numerous areas.

Menopause in the Workplace

Increased employment rates of women aged 50 and above mean that more working women than ever before will experience the menopause transition during their working lives. The menopause can also affect younger employees, as well as transgender and/or binary employees who might not identify as female.

The symptoms of the menopause and peri-menopause are varied, but many will have a real and significant effect on employees who experience it both inside and outside of the workplace. However, there still remains a stigma in many workplaces, with employees feeling unable to seek the support they need, and employers not offering it as a matter of course.

If employees are harassed, victimised or treated less favourably in connection with the menopause, there is a real risk of a claim of discrimination on the grounds of age, sex and/or disability. Indeed, in the 2018 case of Davies v The Scottish Courts and Tribunal Service Ms Davies succeeded in demonstrating that she was disabled as a result of being peri-menopausal (as well as having a number of other gynaecological issues).

As well as avoiding claims, supporting employees who are peri-menopausal or going through the menopause can help improve morale, reduce absenteeism, and maximise productivity.

As a starting point it is advisable for employers to put a menopause policy into place confirming their commitment to offering a supportive and inclusive working environment, and outlining the way in which they will support employees affected by the menopause and/or peri-menopause.

The policy can outlined potential physical adjustments in the workplace such as allowing the use of electric fans and ensuring that uniforms/dress codes are suitable, as well as possible adjustments to policies and procedures. Sickness absence policies and procedures should also be flexible enough to cater for menopause-related absence. Working hours may also need to be flexible and ensure they cater – where reasonably possible - for women who may need to leave suddenly or start work late because they have been suffering from insomnia.

Parental Bereavement Leave

The Parental Bereavement (Leave and Pay) Act 2018 creates a statutory right to time off work for employed parents, with pay where certain eligibility requirements are met, following the loss of a child under the age of 18.

The Government proposes that all legal parents will be included in the definition of "bereaved parent", as well as people who had a parental relationship with the child which is not recognised in law, for example, legal guardians and individuals who have obtained court orders which give them day-to-day responsibility for caring for the child.

The regulations will provide for bereavement leave to be taken either as a single block of two weeks or as two separate blocks of one week. The window in which statutory leave and pay may be taken will be extended to 56 weeks from the date of the child's death. This will offer bereaved parents the flexibility to take the leave at the times when they most need it to support their grieving, including around the first anniversary of the death. No notice will be required to be given by employees for leave taken in the immediate aftermath of the child's death, but where leave is taken after an initial period (yet to be determined), employees will be required to give one week's notice of their intention to take leave.

The response also deals with evidence requirements. An employee who needs to take time off to grieve in the initial period will not need to provide any written declaration confirming their eligibility to bereavement leave. However, in relation to statutory bereavement pay, employees will be required to provide their employer with a written declaration confirming that they meet the eligibility requirements, regardless of whether the employer asks for this.

The Government will now prepare draft regulations setting out the detail of the new statutory right, which is expected to come into effect in 2020.

Neonatal Leave

The Government estimates around 100,000 babies a year are admitted to neonatal care and is proposing a new right to neonatal care leave and pay. This right would not just be for parents of premature babies, but for parents of any newborns requiring specialist neonatal care for two weeks or more. The Government proposes one week's leave for each week that the baby is in neonatal care. The leave would be added onto the end of the parent's maternity or paternity leave.

Unlike paternity leave, it would be a "day one" right with no qualifying period. Parents who would potentially be entitled to the new leave entitlement include the biological mother and father, the mother’s spouse, civil partner, or partner who will be living with the mother and baby in an enduring family relationship, and the intended parents in a surrogacy arrangement or adoption.

It is unclear whether the leave entitlement will accrue in respect of each child where parents have two or more babies requiring neonatal care at the same time.

It is proposed that neonatal care leave be paid at the usual statutory rate, subject to the same qualifying conditions as paternity pay (in terms of average earnings and length of service), and subject to the usual arrangements for the employer to recoup pay from HMRC.

Zero Hours Protection

The Low Pay Commission (LPC) has recommended that every individual should have a right to reasonable and recordable notice of their work schedules. They believe this would discourage poor scheduling practice by employers, reduce unpredictability for workers and aid income security. In practice, this policy would require an employer to provide a “reasonable” period of notice (where “reasonable” is to be defined, balancing both worker and employer needs) to a worker, prior to their shift starting.

Such a policy should provide workers with notice of when their allocated shifts are, but also not prevent individuals taking work when it is offered. Where shifts are offered with less than reasonable notice (such as due to staff illness or overtime), workers should not experience any detriment from employers for turning down those shifts.

The LPC note that what is a “reasonable” notice period may vary across employers, and that this could create some difficulty in setting a single fixed period of notice across all industries and forms of work.

Indeed, the LPC has suggested that Government sets a “minimum standards” for notice. This baseline level could then allow employers to go beyond the minimum and provide workers with even further notice, appropriate to their individual circumstances. Conversely, there may be circumstances where the nature of the work limits “reasonable” notice being provided (such as in emergency services) and that a degree of flexibility may be needed.

The LPC also propose that this right is subject to penalty where “reasonable” notice has not been provided or where the worker has experienced detriment for turning down a shift offered with less than “reasonable” notice. The LPC have asked Government to consult on what these penalties should be.

Holiday Pay Calculations

From April 2020, changes to the holiday pay reference period will be introduced and will apply when calculating an average week’s pay where a worker has variable remuneration.

For workers that have been with their employer for at least 52 weeks, the reference period will be increased from 12 weeks to 52 weeks. For workers who have been with their employer for less than 52 weeks, the reference period will be the number of weeks for which they have been employed.

Section 1 Statements

From April 2020, workers (rather than just employees) will have the right to a written statement of particulars of employment (a section 1 statement) and the right to bring a claim in the Employment Tribunal if their employer fails to provide them with a section 1 statement.

Employers will be required to provide additional information in the statement, including:

  • Length of time a job is expected to last;
  • Notice period;
  • Eligibility for sick leave and pay;
  • Other rights to leave;
  • Probationary period (if any);
  • Pay and benefits; and
  • Working days and hours.

This right will apply from the day the worker starts working (a day one right). Currently it is required to be provided within two months of the individual’s start date.

The change will enable all workers to have the same clarity as employees in terms of their role.

Sexual Harassment Protections

The Government Equalities Office has launched a consultation on how best to tackle workplace sexual harassment. Significant proposals include introducing a duty to prevent harassment in the workplace, introducing protection against third-party harassment, and extending the three-month time limit for bringing discrimination and harassment claims to six months. Consideration will also be given to extending protection for volunteers and interns, as well as looking at non-legislative solutions to tackle the issue of harassment.

The Government also believes that the introduction of a statutory code of practice, together with an information campaign for employers, will be most effective to increase employers' prevention efforts. It notes that work on a statutory code of practice on sexual harassment is already underway, and that the EHRC will produce technical guidance on the topic later this year (which should form the basis of the code). The code will clarify how any duty to take "all reasonable steps" to prevent harassment would be discharged. The government is currently conducting research on effective workplace interventions to prevent sexual harassment.

In so far as a new duty to prevent harassment is concerned, the government considers it would be simplest to mirror current concepts in the Equality Act 2010, namely the well-established concept of the employer's defence, showing that it has taken "all reasonable steps" to prevent the harassment taking place.

Non-disclosure Agreements (NDAs) in Discrimination and Harassment Cases

New legislation is to be introduced prohibiting NDAs being used to prevent individuals from disclosing information to the police, health workers, doctors, lawyers or social workers.

Individuals signing an NDA will be entitled to receive independent legal advice on its implications.

NDAs will still be allowed for legitimate reasons, such as protecting trade secrets and confidential information.

CONTACT CHRIS & KEELY

If you would like more information or advice relating to this article or an Employment law matter, please do not hesitate to contact Chris Cook or Keely Rushmore on 01727 798089.

© SA LAW 2020

Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them alone. You are recommended to obtain specific advice in respect of individual cases.

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