Summer Surge towards Employment Law Reform.

The past week or so has been one for Government consultations seeking to address various employment issues and considering employment law reform. The Government has recently published a number of consultations seeking views on:

  • different ways in which Government and employers can take action to reduce ill health-related job loss with a view to support and encourage early action by employers for their employees with long-term health conditions, and improve access to quality, cost-effective occupational health.
  • proposals to help working parents as part of the Good Work Plan, including considering reform to current family-related leave and pay, introducing a new right to neonatal care leave and pay and increasing transparency around employers’ policies on flexible working and family-related leave and pay.
  • the proposals made as part of the Good Work Plan to address the issue of ‘one-sided flexibility’, where employers misuse flexible working arrangements, creating an unpredictability in working hours. In particular, this consultation is considering a right to reasonable notice of working hours and providing workers with compensation for shifts cancelled without reasonable notice.

The Government has also provided its response to the ‘Pregnancy and Maternity Discrimination’ consultation which considered extending redundancy protection for women and new parents. It confirmed that the period of redundancy protection will be extended to cover women who are pregnant but have not yet taken maternity leave and also those who have returned to work after maternity leave for up to six months. The protection period will also be extended for those on adoption leave. Protection for parents returning from shared parental leave will be further consulted on.

Lastly, the consultation considering measures to prevent misuse of confidentiality clauses (or non-disclosure agreements ‘NDAs’) in situations of workplace harassment or discrimination has now been concluded with the Government’s response to the proposals. The consultation followed the Women and Equalities Select Committee’s (WESC) report on sexual harassment in the workplace published last year, which considered the use of confidentiality provisions in settlement agreements upon termination of an employee’s employment, amongst other issues.

The Government has rejected the WESC’s recommendations for standard wording for confidentially clauses and implementing any reporting duties but has confirmed that it will introduce new legislation to clarify that confidentiality clauses cannot prohibit employees from making disclosures to the police, regulated health and care professionals or legal professionals where appropriate. These permitted disclosures must be made clear in the wording of any confidentiality clause in settlement agreements or employment contracts and any such clause that does not comply with the new requirements will be void and therefore exposing the employer to the risk that the employee is then free to publicise the circumstances around the termination of employment as well as the terms of the settlement agreement itself. It will also be mandatory that when an employee takes independent legal advice on a settlement agreement, the legal advice must include the limitations of any confidentiality clause.

Transparent drafting will therefore be key and it may be prudent for employers to incorporate the specific legal advice requirement into the wording of the adviser’s certificate, so that the employee’s adviser must confirm in writing that specific advice on confidentiality has been provided.

The contents of this update are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this update.

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