Last week the Government published three consultation documents concerning proposed employment law reforms: a new consultation on changes to flexible work requests, and two consultation responses confirming the introduction of carer’s unpaid leave and rules on tips, both to be introduced “when parliamentary time allows”. Employers should be aware that these changes are on the horizon and will in due course require HR policies to be drafted or amended, but they are unlikely to come into force any earlier than mid to late 2022; the impact assessment for the flexible work consultation suggests April 2023 as the earliest implementation date. The documents also suggest that the Government may announce its decision on possible changes to shared parental leave at the end of this year, and on the proposal to require publication of family-related leave and pay policies and a review of gender pay gap reporting in 2022.
Parliament also debated the online petition on ethnicity pay gap reporting this month, but again no deadline was given for the Government to confirm its proposals.
Further details below:
1) Flexible work requests
The Government has launched a consultation until 1 December 2021 on proposed changes to the right to request flexible working. The key proposal is to make the existing right available from day one of employment (currently employees must have 26 weeks’ service).
The intention is to retain employers’ ability to refuse requests for specified business reasons, but the Government is seeking views as to whether the current permitted reasons remain valid (these are: the burden of additional costs; detrimental impact on quality, performance or ability to meet customer demand; inability to reorganise work among existing staff or recruit additional staff; insufficiency of work during the periods the employee proposes to work; or planned structural changes). The consultation asks whether employers who reject a request should also be required to show that they have considered, and have reasons to reject, alternative working arrangements (for example, a time-limited change or a different working pattern to that requested).
Views are sought as to whether employees should be permitted to make more than one statutory request per 12 months, and whether the 3 month deadline for employers to respond to a request remains appropriate.
There is no suggestion of strengthening the limited forms of redress available for an employer’s breach of the statutory procedure (eight weeks’ pay subject to the statutory limit on weekly pay, currently £544). In any event, the potential for discrimination claims following a refused request (whether made within the statutory framework or not) will continue to be of more concern for employers depending on the facts.
The Government has decided not to proceed with an earlier proposal to require job adverts to specify whether a job is open to flexible working (although it hopes this will become the norm anyway, if it becomes a day one right). It has also dropped the proposal to require large employers to publish their flexible working policies; it notes that the proposal to require publication of family-related leave and pay policies will be considered as part of the Government’s review of the impact of the Gender Pay Gap Reporting Regulations in 2022.
Finally, the consultation document notes the Government’s plans to launch a call for evidence looking at the sorts of “ad hoc” and informal flexibility people may need and how this can best be supported, and also asks what would encourage awareness and use of the option to request time-limited changes to working patterns.
The proposed changes are more limited than may have been expected and indicate that making flexible working “the default” is an aspirational rather than legislative aim – the Government has concluded that prescriptive legislation would be impractical given the multitude of different roles and individual and business needs. Instead, the Government hopes that providing a more effective “enabling framework” for open discussions between employers and employees will be enough to achieve a cultural change, particularly following on from experiences during the pandemic.
2) Carer’s unpaid leave
The Government has also published its response to an earlier consultation on introducing carer’s leave. This confirms that the right will be available from day one of employment and will be to one week’s (pro-rated) leave per year,to be taken either in one block or as single individual or half days. Employees will be able to self-certify eligibility and will not be required to provide evidence; the fact that leave will be unpaid is thought to reduce the risk of abuse.
The right will be available where an employee provides care for a dependant (broadly following the definition of dependant in the right to time off for dependants, which includes “a person who reasonably relies on the employee for care”) who has a long-term care need (ie, a long-term illness or injury, disability, or issues related to old age, with additional coverage for specific cases such as terminal illness).
The leave will be available for providing care or making arrangement for the provision of care (and may also include providing care for someone who reasonably depends on the employee for care while their primary unpaid carer is taking respite). This may cover personal and practical support (including accompanying to medical and other appointments), helping with official or financial matters, and providing personal or medical care.
Employees will be required to give notice of taking leave of twice the duration as the time being requested plus one day. Employers will be able to give a counter-notice to postpone (but cannot deny) the request where the employer considers that the operation of their business would be unduly disrupted.
Everyday childcare will not be in scope (unless the child has a disability or other long-term need), but the consultation response notes that the Government consulted on high-level options for reforming parental leave and pay in 2019 and is conducting a formal evaluation of the Shared Parental Leave and Pay scheme; it intends to publish the outcomes later this year.
The Government has reaffirmed its intention to ensure workers are given tips, gratuities and service charges in full without deductions. Employers will be required to have written policies on tips and keep a record of how they are handled and respond to workers’ requests for information from tipping records within four weeks. A statutory Code of Practice on Tipping will also be introduced and rights will be enforceable through the employment tribunal.
4) Pay gap reporting
Finally, the House of Commons has debated an online petition requesting the introduction of mandatory ethnicity pay gap reporting. The Government confirmed that it is still considering matters highlighted by its 2018 consultation on this issue (including how to categorise data, barriers to collecting ethnicity data and issues arising from small data groups) and will respond “in due course”. The Chartered Institute of Personnel and Development has called on the Government to require ethnicity pay gap reporting by large employers from April 2023.
The postponed deadline for employers reporting their 2020/2021 gender pay gap (using the snapshot date of 5 April 2020) is 5 October 2021. The Chartered Management Institute and the Equality and Human Rights Commission have recently published a toolkit providing guidance on tackling the gender pay gap, urging firms to anonymise CVs, promote shared parental leave, and advertise jobs at all levels as open to flexible working.