Is it a new dawn, a new day, and new way of life for employment? A comparison between Labour’s key proposals (in relation to some of which there is rhetoric it may be stepping back) and key steps that have already been taken or are being taken under the current Conservative government (denoted in blue)

In January 2024, Labour issued a green paper* outlining its proposals to overhaul employment law to provide enhanced rights and to reflect the modern workforce including:

Enhanced protection for ‘workers’ 

1.  The distinction between 'employee' and 'worker' will be reclassified into one category of 'worker'. This will give individuals who currently work on a self-employed basis but provide personal service to companies (the current classification of ‘worker’) equal protection with employees e.g. unfair dismissal.

Draft legislation to create one category of ‘worker’ for employees and workers is making its way through parliament. The Bill had its first reading in the House of Lords on 6 December 2023 and a second reading of the Bill in the House of Lords is yet to be scheduled.

Enhanced protection against unfair dismissal 

2.  The right to claim unfair dismissal will become a day one right for 'workers'. At present, an employee must have two years' complete service before accruing the right not to be unfairly dismissed.  In essence, employees are currently subject to a two-year probationary period, where the employer can simply dismiss on notice unless it relates to an unlawful reason that accrues from day one, such as the right not to suffer unlawful discrimination, an unlawful detriment or automatic unfair dismissal (e.g. dismissal for whistleblowing). Currently the main difference relating to a contractual probationary period is that an employee’s contractual entitlement to notice will be shorter.

Protection for remote workers 

3.  There will be a new right to 'switch off' at the end of contracted hours for remote workers, with a right not to be contacted by their employer outside of working hours, and to work autonomously. New rights will be introduced to protect workers from remote surveillance. 

Zero and Short hours contracts

4.  Zero hours contracts without a minimum number of guaranteed hours will be banned, ending 'one sided' flexibility. Anyone working regular hours for twelve weeks or more will gain the right to a regular contract to reflect those hours normally worked. 

In September 2024, new legislation is expected to come into force including giving zero hours workers (and potentially short hours workers):

• after 26 weeks of service (not necessarily consecutive) a new right to request predictability in their work pattern relating to hours worked, days and time and the length of their contract. 
• the employer must respond within one month and give effect to any changes within two weeks thereafter. 
• the employer may refuse the request on specified grounds.  
• it is expected that ACAS will produce a new Code of Practice to assist employers comply with the new legislation. 
• it is not certain whether the 25% ACAS uplift will apply to any compensation awarded upon a successful claim. 

Dismissal and re-engagement on less favourable contractual terms 

5.  The practice of employers firing employees and rehiring them on less favourable terms and conditions where an employee does not consent to the changes e.g. lower pay will be outlawed. Instead, there will be improved information and consultation procedures, and unfair dismissal and redundancy legislation will be adapted to provide compensation for loss of employment where appropriate.

In Summer 2024, a new ACAS Code of Practice relating to the practice of Fire and Rehire is expected to be brought into force. The Code:

• places a greater emphasis on meaningful consultation and steps to avoid dismissal and re-engagement. 
• requires an employer to contact ACAS for advice before it raises dismissal and re-engagement with employees.  
• makes a number of recommendations, including providing longer notice periods, in the event that an employer decides to go ahead with enforcing contractual changes by the mechanism of fire and rehire.  

Upon a successful claim for unfair dismissal in a fire and rehire situation, the employer can be subject to an uplift in any compensation awarded of up to 25% for a failure to comply with the Code.

Addressing the culture of long working hours 

6.  The UK's culture of long working hours will be addressed to improve work-life balance with families and improve physical and mental health.

Enhanced rights relating to flexible working 

7.  The right to request flexible working will accrue on day one of employment with employers required to accommodate such a request as far as is reasonable. Small and medium sized business would receive government support to increase uptake of flexible working

Since 6 April 2024:

• employees have the right to make a flexible working request from day one. 
• employees may make two requests within every 12-month period. 
• the employer must respond within two months of receiving a request and must meet with employees to discuss the reason for any rejection and to explore alternatives. 
• a revised ACAS Code of Practice on flexible working came into force.

Enhanced rights for maternity and paternity leave 

8.  Statutory maternity and paternity leave will be extended.

Since 1 April 2024, the current entitlement to two weeks’ paternity leave immediately after the childbirth or expected date of placement for adoption may be taken in two separate one-week blocks at any time within the first year after birth or adoption.

Bereavement Leave 

9.  There will be a new right to bereavement leave.

Draft legislation is making its way through parliament to enable bereaved fathers and partners from day one of employment to take 52 weeks’ paternity leave from the death of a child’s mother (or adoptive parent) during the first year of their child’s life.

A second reading of the Bill in the House of Lords took place on 17 May 2024. During the reading the government indicated that the legislation should be brought in as quickly as possible, preferably coming into force in April 2025.

Enhanced rights relating to emergency leave 

10.  Rights of workers to respond to family emergencies with paid family and carers’ leave will be extended.

Since 1 April 2024, employees have a new right from day one of employment to apply for up to one week of unpaid carer’s leave for a dependent with a long-term care need in any 12-month period.

Enhanced protection for pregnant women  

11.  It will become unlawful to dismiss a pregnant woman for six months after her return to work, except in specific circumstances.

Since 1 April 2024, pregnant employees have priority for alternative positions in redundancy from the date they inform their employer of their pregnancy.

Maternity leave, adoption leave and shared parental leave - enhancing protection 

12.  Shared parental leave will be reviewed, with reforms to incentivise the sharing of leave.

Since 1 April 2024, pregnant women and new parents returning from maternity, adoption or shared parental leave lasting over six consecutive weeks have priority for alternative positions in redundancy for 18 months after birth of placement of a child.

Legislation is expected to come into force by 25 April 2025 to:

• provide the right to statutory neonatal care leave (expected to be capped at 12 weeks) for employees with a parental or other personal relationship with children receiving neonatal care. 
• provide pay during statutory neonatal care leave (expected to be at the statutory prescribed rate or, if lower, 90% of the employee’s average weekly earnings).

Modernising and enhancing Trade Union legislation 

13.  Trade Union legislation will be significantly updated so that it is fit for a modern society.

Recent and imminent changes include:

• from July 2024, employers with fewer than 50 employees (or any size involved in a transfer of fewer than ten employees)  will be able to consult directly with employees in relation to a TUPE transfer rather than through employee representatives. 
• as of 10 August 2023, it is unlawful for employment businesses to supply temporary workers to cover those involved in industrial action. 
• as of 20 July 2023, legislation was passed to allow the government to introduce regulations implementing minimum service requirements for key public services during strike action.

Time limits to bring tribunal claims 

14.  The time limits to bring employment tribunal claims will be extended.

Compensation for claims 

15.  Caps in compensation will be removed:

The current cap for future loss of earnings for ordinary unfair dismissal as at May 2024 is the lesser of 12 months’ pay or £115,115 and ‘a week’s pay’ for the purpose of calculating entitlement to a statutory redundancy payment is currently £700.

Protection against sexual harassment in the workplace 

16.  Employers will be required to create and maintain workplaces and working conditions free from harassment, including from third parties. Currently employers are generally not liable for third party harassment of their employees during the course of their employment.

On 26 October 2024, legislation comes into force to compel employers to take reasonable steps to prevent sexual harassment of employees during the course of their employment. The government stopped short of placing on employers a positive duty to protect employees from sexual harassment during the course of their employment by third parties. 

Other proposals

17.  Health and safety protection will be given to self-employed workers.

18.  Joint and several liability between companies across the supply chain will be introduced if slavery or criminal labour exploitation is uncovered at any stage in the production process and penalties introduced where companies act with knowledge of such practices.

19.  Health and safety legislation will be updated.

20.  Initiatives will be put in place to raise awareness of neurodiversity in the workplace and across wider society.

21.  Labour will bring forward measures to end gender, ethnicity and disability pay gaps including increased reporting requirements, the requirement for employers to eliminate pay gaps, and making publication of ethnicity pay gaps mandatory for firms with more than 250 staff to mirror gender pay gap reporting. Labour will also permit equal pay comparisons across employers where men and women carry out comparable work. Outsourced workers will be included in pay gap reporting.

22.  Labour will activate the dormant prevention of socio-economic discrimination in the Equality Act 2010 providing a new ‘protected characteristic’. 

* A green paper usually presents a range of ideas and is meant to invite interested individuals or organisations to contribute views and information. It may be followed by a white paper, an official set of proposals that is used as a vehicle for their development into law.

New-Deal-for-Working-People-Green-Paper.pdf (labour.org.uk)

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Disclaimer 

The above provides a general overview of areas in employment law and is not intended nor construed as providing specific legal advice.

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice.

12.05.24