Legal timetable

HM Treasury has published their further consultation on the implementation of an exit payments cap.

Exit payments at the ending of employment, including redundancy, are used to help implement change eg through restructuring or how services are resourced. The government is concerned about the number of exit payments made to public sector workers that exceed, or come close to, £100,000 and want such payments to be proportionate and fair to the taxpayer.

The consultation document sets out the proposed draft regulations, schedule to the regulations, accompanying guidance and directions.

The LGA has published its response to the consultation but are still interested in any evidence that you might be able to provide of the impact of these regulations. SEE have produced an initial draft response and will amend this as further views from our councils are submitted to us. We encourage all councils to individually submit a response to this consultation. Councils are welcome to use our draft response as the basis for their own response to the Government.

Children not in Schools – closed 24 June

This consultation is a follow-up to the consultation and call for evidence on elective home education held by the Department for Education in 2018. It seeks views on proposed legislation to establish:

The Low Pay Commission (LPC) consults on the national minimum wage to assist it in compiling its report for the Government on future upratings of the national minimum wage. In particular, it is seeking evidence on the viability of the stated target of the national living wage of 60% of median earnings by 2020, which on the current forecast would be £8.67. It is also seeking views on the impact of increases in the national living wage since its introduction on workers, employers, the labour market and the economy, and on how the economic outlook is affected by the process of leaving the EU.

For the other minimum wage rates, for those aged under 25 and apprentices, it is seeking evidence on the impact of the national minimum wage rates on employment prospects. It is particularly interested to hear evidence on the impact of the rates on the job prospects of young workers and on how widely the rate for workers aged 21 to 24 is used.

The consultation also explores issues around compliance and enforcement, including: whether or not the national living wage has affected compliance and enforcement; the quality and accessibility of the official guidance on the national minimum wage; and what more could be done to improve compliance.

Finally, the LPC seeks views on the accommodation offset, such as the extent to which it is protecting low-paid workers and what, if any, difference increases in the rate since 2013 have made to the provision of accommodation.

Consultation on confidentiality clauses – closed 29 April 2019

Update: August 2019 – The Government has published its response to the consultation. In summary the measures for implementation are:

• Legislating so that no provision in an employment contract or settlement agreement can prevent someone from making any kind of disclosure to the police, regulated health and care or legal professionals.
• In order that workers understand the rights they keep when signing a confidentiality undertaking, the Government will legislate to require confidentiality clauses in settlement agreements to set out their limitations, for example that workers can still report matters to the police and make whistleblowing complaints. It will also legislate to require the limitations of any confidentiality clause to be included in written statements of employment particulars.
• Legislate so that the independent legal advice an individual must get when signing a settlement agreement must include specific advice on the nature and limitations of confidentiality clauses. Related to this the Government will work with relevant partners to produce guidance for solicitors and other legal professionals drafting settlement agreements.
• Introduce new enforcement measures for confidentiality clauses that do not comply with legal requirements. This will work in the same way as the existing system, under which, where an individual brings an employment tribunal claim and is successful in that claim, and it is found that the employer failed to provide a written statement, the individual is entitled to additional compensation. The new enforcement measures will not apply retrospectively.

No details are given on when the measures may be introduced.

____

The BBIES has published a consultation on proposals to regulate the use of confidentiality clauses (also known as “non-disclosure agreements”), due to concern that these clauses are being used to silence victims of unlawful harassment or discrimination. The consultation seeks views on measures to limit their misuse, including: by making it clear that victims cannot be prevented by a clause in an employment contract or settlement agreement from speaking to the police or reporting a crime; by requiring all confidentiality clauses to set out which disclosures are not prohibited by a confidentiality clause; by making confidentiality clauses in settlement agreements that do not comply with wording requirements void; and by extending the scope of independent advice that a worker must receive before signing a settlement agreement to include advice on the limits of any confidentiality clause.

Pensions protections for local government workers – closed 4 April 2019

The government has launched a consultation on reforms to ensure local government workers whose roles are compulsorily transferred to independent providers, retain the right to remain in the Local Government Pension Scheme. This New Fair Deal is long awaited and should make it much easier for non-local government employers to become employers within the LGPS to ensure employee who are or who previously transferred out of local government where the contract is being retendered.

Consultation on extending redundancy protection for pregnant women and new parents – closed 5 April 2019

Update: August 2019 – The Government has responded to the consultation.

The Government will extend the period during which this protection applies. It will apply from the point that a woman notifies her employer whether orally or in writing that she is pregnant and will last until the end of six months from the end of her maternity leave.

The Government also intends to provide those who take adoption leave with a six-month period of protection once they have returned to work. Those taking shared parental leave will also benefit from protection, but the Government recognises the right will need to be adapted due to the more flexible nature of shared parental leave. The right will not be extended to those who take paternity leave.

The Government also intends to establish a taskforce of employer and family representative groups to make recommendations on improving information and advice for employers and pregnant women on discrimination issues. It will also develop an action plan setting out the steps the Government and other organisations can take to make it easier for women to stay in work.

The majority of those who responded to the consultation sought an extension of tribunal time limits from three months to six months in cases of discrimination, harassment and victimisation. This issue is the subject of a separate consultation.

____

The DBIES consults on extending the period of protection against redundancy to pregnant women and new parents returning to work after having children, with the aim of tackling discrimination in the workplace due to childbirth. The government seeks views on whether or not the right to be offered any suitable alternative vacancy afforded during the maternity leave period should be extended for a certain period on return to work and, if so, whether or not six months is an appropriate period. It is also considering extending the protection to pregnant mothers for a period before maternity leave. In addition, the consultation invites views on whether or not the same protection should be extended to other types of leave, such as adoption leave, shared parental leave and longer periods of parental leave.

Consultation on salaried workers and salary-sacrifice schemes – closed 1 March 2019

The government consults on proposed changes to the national minimum wage rules regarding salaried workers and on the operation of salary-sacrifice schemes. Certain conditions must be met for work to qualify as salaried hours work under the National Minimum Wage Regulations 2015 (SI 2015/621). The government explores how effective these rules are in preventing worker exploitation. It seeks views on proposed amendments to the regulations to include additional payment cycles and fixing the definition of the calculation year for employers. The consultation also explores the practical operation of salary-sacrifice schemes and their effect on workers on the minimum wage.

Consultation on strategy for supporting veterans – closed 21 February 2019

The government consults on its long-term strategy for supporting veterans, including steps that can be taken to improve their employability after military life. One of the consultation’s key themes is employment, education and skills, which explores how veterans navigate recruitment processes and translate their experiences for non-military employers. In particular, the consultation asks employers about the skills and support veterans need to prepare them for civilian employment and what potential barriers there are to veterans sustaining employment.

Consultation on ethnicity pay reporting – Closed 11 January 2019

The Government consults on the possibility of introducing mandatory ethnicity pay reporting for large employers. The consultation explores: which employers could be covered by the obligation; what ethnicity pay data could be reported; and what supporting information (for example a narrative or action plan) employers would have to provide. The consultation also looks at the challenges around collecting, analysing and reporting ethnicity pay information in a meaningful way, including the absence of legal obligations for individuals to disclose their ethnic group or for employers to collect ethnicity information.

Consultation on labour market enforcement strategy for 2019/20 – closed 28 September 2018

The Government consults on the issues on which the director of labour market enforcement would like to receive evidence to inform his strategy for 2019/20, which is due for publication in 2019. In particular, the consultation is seeking views on the enforcement of labour market regulations within the hotel, restaurants and food services, and warehousing sectors.

Consultation on corporate governance principles for large private companies – closed 7 September 2018

The Financial Reporting Council consults on new corporate governance principles: The Wates corporate governance principles for large private companies. The proposed principles are intended to align with the introduction of new reporting requirements, due to come into force from 1 January 2019, that require large companies to disclose in a statement as part of their director’s report, and publish on their website, information on the corporate governance code or arrangements they applied in the relevant financial year. There are six draft principles of corporate good practice, such as undertaking effective engagement, including with the workforce, and promoting executive remuneration structures aligned to sustainable long-term success of the company, taking into account pay and conditions elsewhere in the company.

Consultation on changes to intermediaries legislation (IR35) for the private sector – closed 10 August 2018

HMRC & HM Treasury consult on reform to the intermediaries legislation, commonly known as IR35, with the aim of tackling the avoidance of payment of employment taxes by individuals in the private sector who work through intermediaries, primarily their own personal service company. It seeks views on the existing challenges faced in complying with the off-payroll working rules and sets out the options to improve compliance, including extending the reforms to the rules introduced in the public sector from 6 April 2017 to the private sector.

Call for evidence on improving business productivity – closed 6 July 2018

The Department for Business, Energy and Industrial Strategy has launched a call for evidence seeking views on how best to improve output in businesses with low productivity, with the focus on small and medium-sized enterprises (SMEs). Raising productivity is one of the Government’s key priorities and core to its industrial strategy. The call for evidence seeks to gather information on the decisions taken at individual business level that may impact on productivity and growth.

Consultation on draft guidance in relation to the tax exemption for workplace electric charging facilities – closed 5 July 2018

Her Majesty’s Revenue and Customs consults on draft guidance in relation to the tax exemption for employer-provided electric charging facilities for electric and hybrid vehicles. The draft guidance provides that the exemption from tax applies where there are dedicated electric vehicle charging points at the employer’s premises and they are provided to employees generally.

Consultation on enforcing data protection legislation – closed 28 June 2018

The Information Commissioner’s Office (ICO) consults on a draft policy to help organisations understand how it will enforce breaches of data protection legislation. The draft policy explains how the ICO will use its powers, including by issuing enforcement and penalty notices, and how it will set the amount of any financial penalties. Organisations that fail to comply with data protection rules may be subject to a fine of up to £17 million or 4% of global turnover, whichever is higher, in cases of the most serious data breaches.

Consultation on taxation of self-funded work-related training – closed 8 June 2018

HM Treasury consults on changes to the rules on tax relief for employers that reimburse employees who have paid for work training themselves. The Government is exploring amendments to the rules to: focus on supporting good quality training for those who want to retrain for a change of career; simplify the process for getting tax relief; and minimise the risk of misuse of the tax relief on recreational activities or for other personal purposes.

Consultation on parental bereavement leave and pay – closed 8 June 2018

The Government consults on proposals to inform its Parental Bereavement (Leave and Pay) Bill, which provides two weeks’ paid leave for bereaved parents. It seeks views on, among other things, who should be entitled to statutory bereavement leave, how and when the leave should be taken and what kind of notice and evidence of entitlement should be required.

Consultation on employment status in the modern labour market – closed 1 June 2018

HMRC, HM Treasury and the Department for Business, Energy and Industrial Strategy consult on the options proposed in the Taylor review of modern working practices for providing employers with more clarity when determining employment status, bearing in mind the realities of the modern labour market. Options discussed include the codification of the current case law and updating of employment status tests to reflect modern working relationships.

Consultation on national minimum wage rates for April 2019 – closed 1 June 2018

The Low Pay Commission consults on the effects of recent increases in the national minimum wage, to inform its recommendations for the April 2019 rates. The consultation also explores a number of wider issues, including the potential impact of a “premium” minimum wage for hours that are not “guaranteed” (as recommended by the Taylor review of modern working practices) and the structure of the minimum wage age bands.

Consultation on increasing transparency in the labour market – closed 23 May 2018

The Department for Business, Energy and Industrial Strategy consults on the recommendations in the Taylor review of modern working practices for achieving greater transparency and clarity between workers and employers in the labour market. Recommendations discussed include extending the right to a written statement of terms and conditions to workers as well as employees and increasing the holiday pay reference period from 12 weeks to 52 weeks.

Consultation on enforcement of employment rights – closed 16 May 2018

The Department for Business, Energy and Industrial Strategy consults on the recommendations in the Taylor review of modern working practices on the enforcement of employment rights. The consultation discusses: plans to simplify the enforcement process for employment tribunal awards; a “naming and shaming” scheme for employers that do not pay tribunal awards within a reasonable time; and aggravated breach penalties and cost orders for employers that have already lost an employment status case on broadly comparable facts.

Consultation on increasing protection for agency workers – closed 9 May 2018

The Department for Business, Energy and Industrial Strategy consults on the recommendations in the Taylor review of modern working practices regarding agency workers. The consultation discusses increasing the transparency of contractual arrangements for agency workers and how the remit of the Employment Agency Standards Inspectorate could be extended to monitor umbrella companies or other third-party intermediaries.

Consultation on revised UK corporate governance code – closed 28 February 2018

The Financial Reporting Council consults on a revised UK corporate governance code. The proposed revised code is shorter and focuses on long-term success and sustainability, increased public trust in listed companies and the attractiveness of UK capital markets to global investment during the Brexit negotiations and thereafter. It sets out good practice so that boards can: align a company’s purpose, strategy and values with its business culture; undertake effective engagement with wider stakeholders, to improve trust and achieve mutual benefit, and to have regard to wider society; gather the views of the workforce; ensure appointments to boards and succession plans are based on merit and objective criteria; take steps when they encounter shareholder opposition to any resolution, including in relation to executive pay policies and awards; and strengthen the role of remuneration committees.

Consultation on draft ICO guidance in relation to processing data on children – closed 28 February 2018

The Information Commissioner’s Office (ICO) consults on draft guidance intended to help data controllers understand their responsibilities under the General Data Protection Regulation (2016/679 EU) (GDPR) when processing personal data relating to children. The draft guidance sits alongside the ICO’s Overview of the GDPR and provides more detailed, practical guidance on collecting and processing personal data on children. The GDPR comes into effect on 25 May 2018.

Consultation on enforcing gender pay gap reporting – closed 2 February 2018

The Equality and Human Rights Commission (EHRC) consults on a draft policy to enforce gender pay gap reporting requirements for public-, private- and voluntary-sector employers. The policy explains how the EHRC will use its powers, including by investigating suspected breaches and issuing compliance notices. Employers that refuse to comply may be subject to a summary conviction and an unlimited fine.

Consultation on promoting professionalism and reforming regulation in the healthcare sector – closed 23 January 2018

The Department of Health and Social Care consults on reforms to the regulation of healthcare professionals. The aim is to produce a flexible model of professional regulation that promotes public trust, fosters professionalism and improves clinical practice, while also being adaptable to future developments in healthcare. Areas on which the consultation seeks views include: the advantages and disadvantages of having fewer regulatory bodies; whether or not the Professional Standards Authority for Health and Social Care should take on an advisory role in relation to which groups of healthcare professionals should be regulated; and whether or not to give regulatory bodies the power to handle fitness to practise rules in a more proportionate way.

Technical amendments to employment law to ensure smooth Brexit take effect – To Be Confirmed

The Government introduces legislation to ensure that employment laws continue to operate effectively on the day the UK leaves the EU. The legislation makes minor technical changes, including amending and removing inappropriate language and references.

More flexibility in national minimum wage rules for salaried hours work – 6 April 2020

New rules increase flexibility for employers in how they calculate pay for salaried hours work, which permits an employer to operate a pay-averaging model over a year. The draft National Minimum Wage (Amendment) (No.2) Regulations 2020 amend the National Minimum Wage Regulations 2015 (SI 2015/621) so that employers are able to:

• pay salaried hours workers in payment periods other than monthly or weekly, such as fortnightly or four-weekly;
• choose the calculation year for salaried hours workers; and
• make premium payments to salaried hours workers in respect of basic hours, which will not be taken into account in national minimum wage calculations.

Change to tax treatment of termination payments above £30,000 introduced – 6 April 2019 – postponed until April 2020

Employers will be liable to pay Class 1A national insurance contributions on termination payments above £30,000 that are subject to income tax by the employee. The new measure will be introduced in the National Insurance Contributions Bill.

Increase in holiday reference period from 12 weeks to 52 weeks – 6 April 2020

The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 (SI 2018/1378) increase the reference period used for determining a week’s pay when calculating holiday pay for workers with irregular hours from 12 weeks to 52 weeks. The Government’s Good work plan states that the changes will allow greater flexibility for workers in choosing when to take holiday, particularly for those in seasonal or atypical roles that limit some workers from benefiting from their full holiday pay entitlement.

Abolition of the Swedish derogation relating to pay for agency workers – 6 April 2020

The draft Agency Workers (Amendment) Regulations 2019 abolish the Swedish derogation, which gives employers the ability to pay agency workers less than their own workers in certain circumstances. Under the derogation, agency workers can exchange their right to be paid the same as directly recruited employees for a contract guaranteeing pay between assignments. The Government’s Good work plan, published on 17 December 2018, highlights the misuse of the derogation by some employers. The legislation banning this type of contract is intended to prevent agency workers losing out on their equal pay rights.

Reduction to threshold for a request to set up Information and Consultation Arrangements – 6 April 2020

The draft Employment Rights (Miscellaneous Amendments) Regulations 2019 decrease the threshold required for a valid request to set up information and consultation arrangements under the Information and Consultation of Employees Regulations 2004 (SI 2004/3426)  from 10% to 2% of employees. The requirement for the request to be made by a minimum of 15 employees remains in place.

Extension of the right to a written statement to all workers as a day one right – 6 April 2020

The Employment Rights (Miscellaneous Amendments) Regulations 2019 (SI 2019/731) extend the right to a written statement of employment particulars to all workers (including employees).

The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 (SI 2018/1378) provide that access to a written statement will be a day one right for all workers (including employees). Employers will also have to provide additional information as mandatory content for a written statement.

Parental bereavement leave rights take effect – expected April 2020

The Parental Bereavement (Leave and Pay) Bill provides at least two weeks’ leave for employees following the loss of a child under the age of 18. Employees with 26 weeks’ continuous service will be entitled to paid leave at the statutory rate and other employees will be entitled to unpaid leave.

New legislation to allow organisations to monitor use of IT systems for legitimate business reasons – to be confirmed

The Investigatory Powers (Interception by Businesses etc for Monitoring and Record-keeping Purposes) Regulations 2018 (SI 2018/356) provide that organisations and public bodies may lawfully intercept communications being sent via their telecommunications systems for certain legitimate business activities. These activities include establishing whether or not staff using the organisation’s telecommunications system are achieving the standards required by the company in the course of their duties. The Regulations are designed to replace (and largely mirror) the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699).

Increase to the length of time required for continuity of employment to be broken – to be confirmed

The time required to break a period of continuous service extends from one week to four weeks. Employees can have a gap of up to four weeks in their service with an employer without it affecting their entitlement to statutory employment rights. The Government’s Good work plan states that the extension of time will make it easier for employees who work intermittently over a period of time for the same employer to access their rights.

New pensions dashboard service introduced – to be confirmed

The Pension Schemes Bill, introduced in the Queen’s speech on 14 October 2019, allows individuals, or persons appointed by them, access to online information about their pension, including state, personal and occupational pensions, via a pensions dashboard service, to help them plan for retirement.

New right for workers to request a more stable contract – to be confirmed

All workers will have the right to request a more predictable and stable contractual working pattern after 26 weeks’ continuous service. The new right was announced in the Government’s Good work plan on 17 December 2018. It is intended to benefit workers who have irregular hours, for example under a zero hours contract, but who would like more certainty on the number of hours they work and/or the days on which they work.

Whistleblowers protected when applying for jobs in children’s social care sector – to be confirmed

The Children and Social Work Act 2017 includes a provision that enables regulations to be made to provide protection for applicants when applying for a role that relates to the children’s social care functions of a local authority. The purpose of this provision is to ensure that applicants are not discriminated against because they have previously made a protected disclosure. A local authority (or other relevant employer) discriminates against an applicant if the applicant is refused a job or he or she is treated less favourably in some other way in relation to the application because of having made a protected disclosure.

Income tax personal allowance linked to national minimum wage – to be confirmed

Any increase in the income tax personal allowance will take into account national minimum wage increases to ensure that workers on the national minimum wage working up to 30 hours per week do not pay income tax.

New check-off arrangements take effect – to be confirmed

The draft Trade Union (Deduction of Union Subscriptions from Wages in the Public Sector) Regulations 2017 implement new arrangements for check-off for public-sector employers. Where a contract of employment or collective agreement contains arrangements for check-off, the arrangement can continue only where the trade union meets the administrative cost in respect of making the deductions and workers have the option to pay their trade union subscriptions by other means.

The finalised Regulations, which were due to come into effect on 10 March 2018, are yet to be published.

Public-sector exit payments become repayable – to be confirmed

Section 154 of the Small Business, Enterprise and Employment Act 2015 provides for regulations to be made to require the repayment of exit payments made to public sector workers. The draft Repayment of Public Sector Exit Payments Regulations 2016 provide that employees in the public sector with annual earnings of £80,000 or more must repay exit payments where they return to work in the public sector within one year of leaving.

Public-sector exit payments capped – to be confirmed

The draft Public Sector Exit Payment Regulations 2016 provide that exit payments to public-sector workers are capped at £95,000. Many payments made in connection with loss of office are covered.

Caste discrimination prohibited – to be confirmed

The Enterprise and Regulatory Reform Act 2013 prescribes that the Government must add “caste” to the definition of “race” under the Equality Act 2010. The Government has yet to introduce legislation to prohibit caste discrimination under s.9(5) of the Equality Act 2010.