Employment Law Update: five issues to watch in 2019

If the last 12 months are anything to go by, 2019 promises to be eventful and packed with employment law change.

If the last 12 months are anything to go by, 2019 promises to be eventful and packed with employment law change. Here is our pick of the key employment law and HR issues to watch in the coming year.

1. Business Immigration: A new regime for a post-Brexit world?

Brexit will of course be firmly and unavoidably at the top of everyone’s agenda in the coming year, and a key concern for UK employers will be the shape and structure of any amended immigration regime post Brexit. Organisations that currently employ large numbers of EU nationals will be watching closely whether the September 2018 suggestions of the Migration Advisory Committee (MAC) will be carried through into law. The MAC currently advocates that the post-Brexit immigration regime should retain a focus on attracting higher skilled workers and that no preferential treatment should be given to EU workers.

For more details see our website.

2. Parental Bereavement Leave

The introduction of statutory paid leave for parents who have lost a child has been on the cards for some time. Following the Government’s publication in November of its consultation response on the issue, there are now some further details available. The key points are as follows:

  • Bereaved parents who lose a child under the age of 18 will be entitled to two weeks leave as a ‘day one’ right (i.e. there will be no period of qualifying service). Eligible employees will also be entitled to two weeks statutory pay (currently £145.18 per week or 90% of earnings, whichever is lower).
  • A broad definition of ‘bereaved parent’ will be adopted in Regulations to include all ‘primary carers’ for children (including for example step-parents, adoptive and foster parents, legal guardians and ‘kinship carers’).
  • A bereaved parent will be able to take leave either in one block (of one or two weeks) or as two separate blocks of one week. This is to ensure a balance between flexibility for employees and certainty for employers, but also to ensure that the leave is paid (as statutory payments are only available for periods of one week or more).
  • Regulations will specify that leave can be taken within 56 weeks/13 months of a child’s death. The Act stipulated a minimum window of 56 days/8 weeks. Many respondents to the consultation suggested a period of 52 weeks/1 year would be more appropriate. However, an even longer period of 56 weeks has been settled on, to make sure that parents are able to use leave at particularly difficult times, such as the first anniversary of the child’s death.
  • It is open to employers to offer a more generous entitlement to leave or pay, or to allow an employee to take leave in a different pattern (e.g. discontinuous days)

Regulations incorporating the detail of the new statutory right are expected to take shape over 2019, ready for the new regime to come into force in 2020.

3. Shared Parental Leave and pay: policy transparency

In October 2018, the Government announced plans to consult on new law to compel employers with more than 250 employees to publish details of their “parental leave and pay” policies. While the details will be ironed out during the consultation process, it appears that this will include policies on maternity leave, paternity leave, adoption leave, shared parental leave, unpaid parental leave and perhaps even flexible working.

It is hoped that this move towards transparency will reduce the risks of discrimination occurring at recruitment stage by removing the need for an applicant to ask about an organisation’s family friendly offering at interview. The proposals have already been acted on by a number of early adopters including major accountancy firms, law firms and banks. The government has also promised to publish the family leave and pay policies of all government departments.

In anticipation of legislation, early 2019 might be a good time to review your family friendly policies and make sure that they stand up to scrutiny, and to consider how your offering compares to other organisations in your sector.

4. Ethnicity Pay Gap Reporting

In autumn 2018, the government published a consultation paper on introducing mandatory ethnicity pay gap reporting. Following on from the perceived success of gender pay gap reporting in highlighting pay disparity and prompting employers to come up with innovative ways to address inequality, the government proposes to introduce a similar obligation on employers to publish pay data broken down by race. However, there are a number of genuinely difficult questions to grapple with, not least which categories of ethnicity should be used. The broader the categories, the less the data will tell the employer. However, using a large number of narrow categories may make it possible to identify individuals or make data outputs difficult to interpret.

The consultation runs until 11 January 2019 so, even allowing for a relatively long period of post-consultation analysis, we should find out in the coming year whether these proposals will be taken forward (but we think that it is very probable that they will) and what the new reporting regime will look like.

For more details see our website.

5. The return of Employment Tribunal fees?

When the Employment Tribunal fee regime was scrapped back in July 2017 the government made comments to suggest that they might not be gone for good. However, many in the employment law and HR community suspected that the current administration might lack the parliamentary time and political will to put together a new charging regime. Speculation that fees may be introduced imminently has been revived by answers given by Richard Heaton, Permanent Secretary at the Ministry of Justice, to questions posed by the House of Commons Justice Committee in November. He reiterated that the Supreme Court Judgment which struck down the ‘old’ fee structure did not completely outlaw the concept of fees and stated that the Ministry of Justice could come up with a “proportionate and progressive” new fee scale.

Importantly, no concrete proposals have yet been published. UNISON, which represented the claimants in the previous long running litigation, has already expressed its clear opposition to any reintroduction of ET fees. Any change is therefore very likely to be subject to another legal challenge.

Louise Singh, louise.singh@weightmans.com, is a Professional Support Lawyer supporting the national Employment, Pensions and Immigration Team and is based in Liverpool. If you have any questions, please do not hesitate to contact Louise or speak to your usual Weightmans advisor.

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