Barring an unforeseen disaster, Boris Johnson’s Conservative government is free to set the agenda for at least the next five years. So what is this likely to mean for employment law in the UK? Will there be an exciting domestic agenda of new rights for employees? Or will there be a gradual loosening of obligations including those derived from EU law?
Employment law in the UK is a mix of rights and obligations which either are purely domestic, or which come from EU law. Domestic rights include the long-standing protection from unfair dismissal, the rights of whistleblowers at work and the National Minimum Wage.
On the other hand, EU derived rights include protections from discrimination and harassment at work, pregnancy related rights, working time rights and the Transfer of Undertaking (Protection of Employment), otherwise known as TUPE. Many of these EU derived rights are now seen as fundamental, but could they now be at risk?
EU derived employment rights
Although we have jumped the first Brexit hurdle, we are now in a transition period to 31st December 2020. During this period, the UK is still bound to implement EU directives and respect the decision making of the European Court. EU law is to be automatically subsumed into UK law at the end of the transition period, so the existing protections will continue to apply.
However, clauses in the Withdrawal Act which were designed to safeguard and enshrine those protections for the future were removed at the last minute, leaving open the prospect of a future law changes.
As things stand, Ministers are now free to declare which EU rights and protections for workers may be overruled by UK Courts and Tribunals after the transition period ends. There has been promise of an Employment Bill to clarify this further, but on past form do not expect anything anytime soon.
It is no secret that certain EU derived rights are unlikely to sit well with a reform-minded Conservative government, including working time regulation, holiday pay rights, TUPE and duties to inform and consult. These may come under the spotlight in the future, and how far will the UK diverge away from EU law is not yet clear. Some commentators have predicated a gradual weakening of protections for workers as a result of the demise of certain EU-derived legal rights.
So, should we expect to see a watering down of the duty to inform and consult on a TUPE transfer? Questions also surround whether there will be a new approach to working time and holiday pay, and whether the prohibition of changing terms and conditions after a transfer will start to look shaky. The future makeup of these laws can’t yet be pinned down with any great certainty, but what we do know is that a number of the current EU-derived rights, such as the widespread protection from discrimination, are seen by many as sensible and fair, and it would be a bold government who might seek to interfere with these.
Closer to home
Top of the agenda for many sectors during the transition period will be the ending of free movement of EU workers and the consequent effect on filling posts, and this issue is expected to pose major challenges. The recently announced points-based immigration system has been criticised as not doing enough to ensure that the rug isn’t pulled from underneath migrant-reliant sectors, like construction, hospitality, retail, health and social care.
Whatever the system ends up looking like it is clear that many businesses will have to radically rethink their recruitment strategies and even potentially their business offerings.
A manifesto for change?
In its election manifesto, the Conservative party acknowledged that people cannot fulfil their potential if they do not have jobs that treat them with dignity and respect, backed up by a promise that they would always prioritise the principle of fairness in the workplace. Moving beyond the soundbite, however, there was very little specific detail on how this would play out and as yet, no further proposals.
It is fair to say that increased protection for workers may not be at the heart of the new government’s agenda, and it is difficult to see how the new administration might see the big HR issues of the time, namely skills, wellbeing at work, mental health and equality and diversity.
Having said this, there have been some promised changes, particularly around the protection of vulnerable workers and the lower paid. There are existing plans to continue to raise the National Minimum Wage, which is predicted to rise to £10.50 per hour for workers over 21 by 2024. The much feared, yet suspended, ‘naming and shaming’ list has now been restored to action, along with a more focussed policy statement.
There is also a notable focus on ways in which to support working families within the manifesto. Jack’s Law was introduced in February, which provides grieving parents with the right to paid leave, so it wouldn’t be surprising to see more family-friendly policy enacted.
Flexible working is another area where we could see the tide change, with the government announcing a consultation on making flexible working the default pattern unless employers have good reasons not to. This would be an extension on the current position which still rests on an employee making an application, which can be relatively easily refused by their employer. If this motion did come into effect, it could mark a transformational change in the working patterns of employees across the UK and would be a major leap forward.
One area which has proved challenging is enacting protection for workers in the gig economy who are all too often still classed as self employed with no employment protection. Despite focus from the Taylor Review and Good Work plan, little progress has been made in this area, although wider rights for proper information about employment terms for workers generally will come into force as planned on 6th April.
IR35 reform
In more concrete developments, the proposed changes to IR35 rules will be enforced going forward. With these changes set to force medium and large business who use contractors to consider carefully their possible employment and tax status, many will have been hoping for an extension to better enable them to prepare.
However, the changes address a long-standing concern of HMRC over perceived tax avoidance and are expected to generate significant tax revenue, making them an immediate priority.
A new enforcement body?
On enforcement generally, there is likely to be an increased focus on a stronger level of state power, particularly around perceived exploitative employers and vulnerable workers. To that end, the Conservative manifesto promised the creation of a new enforcement body to bring together the patchwork of existing state enforcement (such as HMRC and the National Minimum Wage) with a widened remit.
Activity ramping up
With the government’s attention focused elsewhere, it has been fairly quiet in respect to new employment legislation in recent years. However, that is clearly changing. The regulatory changes related to Brexit are unprecedented, so expect a surge in employment-related headlines over the next 12 months.
