EMPLOYMENT
- Flexible working
- At the end of 2021 the Government published a consultation on making the right to request flexible working available from the start of employment (currently only employees with at least six months' service have the right to request flexible working).
- The Government has published its response to the consultation, which includes
the following measures:
- the right to request flexible working will be a day one right
- employers will have a new duty to consult the employee before rejecting a flexible working request
- there will be a two-month period to make a decision on the request (reduced from the current three month period)
- employees will be allowed to make two statutory requests in any 12 month period (rather than one as is currently the case).
- Draft legislation is progressing through Parliament which will introduce the duty to consult the employee on the request, the two-month period for the decision and increasing the number of requests allowed in a 12 month period. The removal of the six months' service requirement for making a request will be introduced separately.
- The Government has not given a date for when these changes will come into effect.
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Holiday
- The Government is consulting on holiday entitlement for part-year and irregular hours workers.
- All workers are entitled to 5.6 weeks' holiday per year under the Working Time Regulations 1998. Where a worker works for only part of the year (e.g. term time only) or works irregular hours then their holiday entitlement may work out as a higher proportion of their working hours than that of a full year or full time worker (as in the Supreme Court case of Harpur Trust v Brazel).
- The Government is proposing to change the holiday calculation for part year and irregular hours workers so that their holiday entitlement is proportionate to the hours worked. The consultation closed on 9 March 2023.
- Separately the Government is planning to consult on changes to the
regulations to
- amalgamate the 4 weeks' EU holiday entitlement with the additional 1.6 weeks' UK entitlement for a single 5.6 weeks' entitlement (which may be to allow more flexibility around carry over)
- permit employers to pay rolled-up holiday pay (which is currently unlawful under ECJ case law).
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Employment status
- Following the publication of the Independent Review of
Employment Practices in the Modern Economy (known as the Taylor
Review) in 2017, the Government published the Good Work Plan setting out a number of reforms
aimed at improving the position of workers including:
- refining the employment status test and developing an online employment status tool
- making it easier for casual workers to establish continuity of employment (by increasing the gap required between contracts for breaking continuity from one week to four weeks).No date has been given for when these changes may be introduced.
- The Government also published an employment status consultation in 2018 which proposed to legislate to improve clarity around employment status tests and also align the tests for employment rights and tax purposes.
- The Government's response to the employment status consultation in July 2022 confirmed that it will not be introducing any new legislation. Instead, the Government has published new guidance on employment status and employment rights for HR and legal professionals.
- Separately, the Government consulted in 2019 on specific measures to improve protection for zero hours workers including proposals for compensation for cancelled shifts, minimum notice of working hours and the right to move onto a fixed hours contract. The Government's response to this consultation is awaited.
- There will be a new right for workers to request a more predictable work pattern, under draft legislation currently progressing through Parliament. Employers will have to follow a set process for considering the request and will be able to refuse the request on certain grounds (as with the process for flexible working requests).
- The Government has commissioned the Future of Work review to be conducted during 2022 which will build on Government commitments following the Taylor Review.
- Following the publication of the Independent Review of
Employment Practices in the Modern Economy (known as the Taylor
Review) in 2017, the Government published the Good Work Plan setting out a number of reforms
aimed at improving the position of workers including:
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Non-compete covenants
- In 2021, the Government consulted on proposed changes to non-compete covenants. There were two options under consideration: (i) requiring that the employer pays part of the employee's salary during a non-compete period or (ii) banning non-compete covenants altogether.
- The Government has not yet responded to the consultation. However, in May 2023 the Government announced that it would legislate to limit all non-compete covenants to three months maximum. There is no timeframe for when this change is likely to take place.
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Changing terms
- The Government is consulting on a draft statutory Code of Practice on the use of "fire and rehire" to change terms of employment. The code sets the steps which employers should follow when seeking to change terms, including meaningful consultation. The draft Code emphasises that dismissal and re-engagement should be a last resort. Where an employer fails to follow the Code, the Employment Tribunal will have the power to increase compensation awarded for any relevant claim by up to 25%.
- The consultation closes on 18 April 2023.
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Harassment
- In spring 2018, the Equality and Human Rights Commission (EHRC) published a report, Turning the tables: ending sexual harassment at work, which made a number of recommendations to strengthen the protection for victims of sexual harassment.
- The Government has committed to develop a statutory code of practice on sexual harassment and in 2019 consulted on further measures to address sexual harassment at work. The Government responded to the consultation in 2021.
- As a result of this consultation, draft legislation is now progressing through
Parliament which will introduce:
- employers' liability for harassment of employees by third parties (such as clients or suppliers) where the employer failed to take reasonable steps to prevent the harassment
- a new duty on employers to take reasonable steps to prevent sexual harassment at work, with a 25% uplift in compensation where the employer has breached this duty.
- A new statutory code of practice on sexual harassment will be introduced in due course, and this will be subject to consultation before it is finalised.
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Sex discrimination and menopause
- In July 2022, the Women and Equalities Committee published its report following its 2021 inquiry into menopause and the workplace. The report recommended that the Government consult on making the menopause as a protected characteristic under discrimination law, and introducing statutory menopause leave and a model menopause policy.
- The Government responded to the consultation in January 2023 and stated that it did not intend to change the protected characteristics under the Equality Act, or introduce menopause leave or a model policy. However, it will work with employers on a communications campaign.
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Disability discrimination
- In July 2021 the Government published a National Disability Strategy aimed at improving the lives of disabled people, including plans for improving support for employers. Further proposals are expected in 2022.
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Diversity and pay reporting
- In August 2018, the Equality and Human Rights Commission (EHRC) published a report on disability and ethnicity pay gaps and progression. The EHRC plans to produce guidance for employers on collecting, using and reporting data on employee ethnicity and disability.
- The Government consulted on ethnicity pay gap reporting in 2018, but has since indicated that it does not intend to introduce mandatory reporting for the time being, and instead will publish guidance for employers on voluntary ethnicity pay gap reporting.
- In late 2021, the Government published a consultation on disability workforce reporting, seeking information on current employer practice and possible approaches to compulsory disability reporting. The consultation closed on 8 April 2022 and the Government's response is awaited.
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Settlement and confidentiality
- In 2019, the Government consulted on the use of confidentiality
provisions in settlement agreements in discrimination and
harassment cases. The Government has responded to
this consultation and stated that it will legislate to:
- ensure that settlement agreements will not prevent disclosures to the police or healthcare or legal professionals
- require confidentiality clauses in employment contracts and settlement agreements to set out their limitations clearly
- require individuals to take legal advice on the confidentiality provisions in a settlement agreement.
- No date has been given for when the legislation is likely to be introduced.
- In 2019, the Government consulted on the use of confidentiality
provisions in settlement agreements in discrimination and
harassment cases. The Government has responded to
this consultation and stated that it will legislate to:
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Redundancy and pregnancy/maternity leave
- Employees who are made redundant during maternity leave must be offered a suitable alternative vacancy if there is one.
- Following a consultation in 2019, the Government confirmed that it will extend this redundancy protection so that it begins when the employee notifies the employer of the pregnancy and ends six months after the end of the maternity leave. The equivalent redundancy protection for adoption leave will be extended until six months following the end of adoption leave, and similar extensions will apply in relation to shared parental leave.
- Draft legislation is progressing through Parliament, although no date has been given for when the changes are likely to come into effect
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Maternity/Adoption/ Shared Parental and parental
leave
- The Government has consulted on measures to support working
families including:
- how to improve paternity and shared parental leave and pay, including the possibility of dedicated "pots" of leave for each parent
- requiring employers with 250 or more employees to publish their family related leave and pay policies on their website.
- The Government's response to the consultation is awaited.
- The Government has consulted on measures to support working
families including:
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Neonatal leave and pay
- A new entitlement to up to 12 weeks' neonatal leave and pay for parents of premature babies is to be introduced under draft legislation which is currently progressing through Parliament. The new right will apply where a baby starts neonatal care (lasting at least 7 days) within 28 days of being born.
- No date has yet been given for when this new right will come into effect.
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Carers' leave
- The Government consulted in 2020 on a new form of unpaid statutory leave for employees with unpaid caring responsibilities, such as care of an elderly relative.
- The Government has published its response to the consultation which confirms that it will introduce a new right for carers to take unpaid leave of one week per year, to help manage their caring responsibilities.
- Draft legislation is progressing through Parliament although no date has been given for when the changes are likely to come into effect.
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Listed companies
- The Government has consulted on audit and corporate governance reforms for listed companies and larger private companies which include new directors' duties relating to risk management, and proposals to claw-back directors' bonuses if the company collapses or there are serious director failings within two years of the bonus payment.
- The consultation closed in July 2021 and the Government's response is awaited.
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Enforcement of employment rights
- The Government has announced that it will create a single enforcement body for employment rights which will enforce national minimum wage, labour exploitation and modern slavery, holiday pay for vulnerable workers and statutory sick pay. The timing for this change has not been specified.
IMMIGRATION
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Immigration sponsored work visa reforms
Ongoing - phased programme 2021 to 2024
- The Government set out its plan to make changes to the sponsorship system in its sponsorship roadmap policy paper with reforms to the sponsorship system introduced gradually since 2021 and expected to continue into 2024.
- The changes include improving the processing time for sponsor licence applications and enhancing immigration sponsorship compliance systems. An updated sponsorship management system (SMS) portal is expected to be introduced as well as improvements to the visa application process for applicants during 2023 and into early 2024.
- Changes to the SMS will allow sponsor employers to carry out post licence updates and comply with reporting obligations more easily as well as allowing automated data checks for licence applications.
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Expansion of Youth Mobility Scheme visa
route
February to June 2023
- The Youth Mobility Scheme visa route allows 18- to 30-year-olds to come to the UK to work in any role for a two-year duration.
- On 1 January 2022, the route was extended to eligible applicants from Iceland, in addition to Australia, Canada, Monaco, New Zealand, San Marino, Hong Kong, Japan, South Korea and Taiwan. Certain British overseas passport holders may also apply.
- In February 2023, the scheme was extended to applicants from India via a ballot scheme with applicants required to hold a degree level qualification.
- From 29 June 2023, the age range for New Zealand nationals will be expanded from 18-30 to 18-35 and the length of permission will increase from two to three years.
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Increase to work sponsored salary
thresholds
12 April 2023 onwards
- From 12 April 2023, the minimum salary required for a Skilled Worker visa will increase from £25,600 to £26,200 per year.
- From 12 April 2023, the minimum salary required for a Global Business Mobility visa (Senior or Specialist worker) will also increase from £42,400 to £45,800
- Employers sponsoring an employee under either route must pay at least this minimum salary or the "going rate" for the particular role, whichever is higher. The "going rate" for a particular role can be found on the list maintained by the Home Office according to the occupation code for the role. These "going rates" will also increase from 12 April 2023.
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Introduction of new Innovator Founder visa
route
13 April 2023 onwards
- The new Innovator Founder Route will replace the old Innovator route from 13 April 2023 and the Start-up route will close.
- The new route will abolish the previous requirement to hold minimum funds of £50,000. It will also permit visa holders to take up secondary employment, as long as this meets the minimum skill level of RQF level 3.
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Biometric residence permits being phased out and digital
immigration system
Early 2024 onwards
- Most UK visa applicants currently submit physical passports for endorsement as part of their visa application process. If granted visas for longer than six months, applicants are issued biometric residence permits (BRP) cards to cover the full duration of their visas.
- All BRP cards being issued currently will have an expiry date of 31 December 2024, irrespective of the length of visa granted to the applicant. The Government is expected to announce details of the replacement for BRP cards in early 2024.
- EU applicants granted status under the EU settlement scheme, or who apply for employer sponsored work visas are issued digital status, rather than a physical passport endorsement or a BRP.
- Digital status is also now issued to in-country applicants issued visas under the sponsored work visa routes, which is linked to their biometric residence permits. Certain nationals are also no longer issued new BRPs when granted extended or updated sponsored work visa status in the UK.
- Such applicants access their UK immigration status via an online portal and are able to share information on their status online with prospective employers or landlords to evidence of their right to remain in the UK.
- This change is part of the streamlining and digitisation of the UK's visa system, with a move towards a digital immigration system.
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Electronic travel authorisations
Ongoing - Phased programme to 2025
- The Government will be introducing a universal ‘permission to travel' requirement which will require everyone wishing to travel to the UK (except British and Irish citizens) to seek permission in advance. The Electronic Travel Authorisation (ETA) will be similar to the ESTA system in the United States. Eventually any non-British or Irish national coming to the UK for tourism or short business trips will need either an ETA or a visa.
- It will launch for Qatari nationals from 25 October 2023 and then, from 1 February 2024, it will apply to nationals of Bahrain, Jordan, Kuwait, Oman, United Arab Emirates and Saudi Arabia. The full scheme will then be in place by the end of 2024, by which time, any non-British or Irish national coming to the UK for any purpose will need either an ETA or a visa.
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Introduction of European Travel Information and
Authorisation System (ETIAS)
2024 onwards
- The European Travel Information and Authorisation System (ETIAS) is set to be introduced during 2024 and will require visitors to the participating countries to apply or electronic authorisation (similar to the US ESTA) before they travel.
- British citizens do not require visas to visit the EU or Schengen countries, but post-Brexit, they must qualify for entry under the visitor rules, with activities subject to strict limits, including a prohibition against undertaking productive work. Our interactive map shows the rules which apply in different European countries.
Originally published by 11 May, 2023
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