Change is on the horizon for employment rights

Following the Government’s response to the recommendations of the Taylor Review in early 2018, steps have now been taken to start implementation of the recommended changes.

The Government has recently published its Good Work Plan - a summary of those changes and how they will continue to strengthen workers’ rights in the UK (whether or not the UK leaves the EU). It has also laid before Parliament three sets of proposed legislation that will implement many of these changes with effect from 6 April 2020.

What does the Plan confirm will change for employment law by 2020?

• the reference period for calculating holiday pay, where an individual has variable remuneration, is increased from 12 weeks to 52 weeks. If the individual has not yet worked for 52 weeks, the reference period is the number of weeks worked;
• all workers, rather than just employees, will be entitled to a contract (or written statement of particulars of employment) setting out their employment rights;
• this must be provided on appointment rather than within the existing period of two months from appointment. (The employer can choose to provide particulars in instalments over a two month period, provided that the majority are given when the individual begins work);
• the maximum penalty for an employer aggravated breach of employment rights will increase from £5,000 to £20,000;
• the percentage required for a valid employee request for the employer to negotiate an agreement on informing and consulting its employees will lower from 10% to 2%; and
• the Swedish Derogation will be repealed. (Agency Workers can currently exchange their right to be paid equally to their permanent counterparts in return for a contract guaranteeing pay between assignments, known as Swedish Derogation).

What else can we expect to see?

While there has been no published draft legislation at present and therefore no specific timeframes for implementation, the Plan also confirms that the following changes are now likely to be made:

• there will be more clarity on employment status, with a new test to reflect the “reality of modern working relationships”. It will focus more on the element of control and not on the individual’s right to provide a substitute;
• there will be a ban on deductions from staff tips, all of which will now have to be given to staff;
• casual workers (whether zero hour or other variable pattern) will be able to request a more fixed pattern of work, when having worked for 26 weeks continuously; and
• the gap in employment with the same employer that will break continuity of service will increase from one week to four weeks.