Family-friendly rights
More details have emerged regarding the UK government's intentions in relation to the protections against dismissal during and after pregnancy. While future regulations will set out the details, an amendment to the Employment Rights Bill ("ERB") makes clear that those regulations may include provisions about notices to be given, the evidence an employer is required to produce, and other procedures that will need to be followed by both employers and employees.
Although not a UK government proposed amendment, it has been reported that an amendment proposed by Labour MP Sarah Owen providing two weeks bereavement leave to mothers and their partners who have suffered pregnancy loss before 24 weeks is reportedly receiving UK government backing, meaning there is a high chance it will become law.
Several other amendments have been proposed but not, yet, supported by the UK government, including the introduction of domestic abuse leave, higher levels of statutory maternity pay and paternity leave, and the reintroduction of equality questionnaires. The lack of UK government support means that these proposed amendments are unlikely to become law.
Unfair dismissal - Day 1 right
A consultation on the ERB's headline right is awaited. Once published, this is likely to provide further details as to how this right will operate in practice.
Right to switch off
Many recent press reports have suggested that the right to disconnect may have been dropped by the UK government, with "sources" pointing to the lack of any amendments to the ERB as evidence of this. However, the Next Steps to Make Work Pay paper, published alongside the ERB, confirmed that the right to switch off could be introduced through a Statutory Code of Practice rather than via legislation, so its absence from the ERB shouldn't be a surprise. That said, the sheer number of reports about "government sources" reportedly saying it is "dead" is hard to ignore, so in the absence of any formal statement on this, it may just not be progressed. Time will tell.
Enforcement - The Fair Work Agency
A number of amendments have been proposed that significantly extend the powers of the Fair Work Agency ("FWA"). This includes a power to bring proceedings on behalf of a worker where a worker has the right to bring a claim, but it appears they are not going to do so, and to provide legal assistance to a person who is a party to civil proceedings relating to employment, trade union, or labour relations law. The costs of legal assistance may be reclaimed out of any award that is received by a claimant who has received assistance. The FWA will also have the power to recover costs of enforcement from employers that are breaking the law.
Additionally, the FWA will enforce any failure to keep adequate records of annual leave and pay. The ERB will require employers to keep holiday entitlement records for six years, and any failure to comply could lead to criminal penalties and may include unlimited fines. Failure to pay certain statutory payments, including holiday pay, national minimum wage and statutory sick pay will also be subject to FWA enforcement. The FWA will be able to issue notices of underpayment to employers requiring payment within 28 days, together with a penalty of 200% of the sum due, payable to the Secretary of State.
What's next?
The ERB will continue to make its way through the House of Lords, where further amendments may be made. If standard timescales are kept to, then the ERB is likely to receive Royal Assent in July. Thereafter, further consultations will take place, and draft regulations will be published, providing some much-needed detail on how many of the new rights will work in practice. Employers have a lot of changes to keep up with over the next 12 to 18 months, and the sooner there is more certainty about what to expect, the better.
For more details on other recently published consultation responses and amendments, see our other ERB update articles here.
