Key employment law updates | May 2022

Exclusivity clauses – the ban expanded to cover low paid workers

On 9 May 2022, the government announced that they plan to widen the ban on exclusivity clauses to cover contracts where a worker's guaranteed monthly income is £123 a week or less (£123 being the Lower Earnings Limit). The ban on exclusivity clauses already applies to zero-hour workers. The ban stops employers from restricting workers from working for multiple employers.

It is estimated that extending the exclusivity ban will affect 1.5 million workers, enabling them to top up their income if they choose. In the announcement, the government also suggested that extending the ban in this way will also benefit businesses who will be able to access a wider talent pool, who would have previously been stopped from applying due to exclusivity clauses.

The legislation to extend the ban is expected later this year however, in the meantime businesses may wish to review their workforces to identify workers who have a guaranteed monthly income of £123 a week or less and consult them on necessary changes to their terms and conditions. If you would like further advice on changing terms and conditions for employees, please do get in touch.

The Queen's Speech – what to expect now?

The Queen's Speech contained 38 new legislative Bills. However, the Employment Bill was noticeably absent from the list. The draft Employment Bill contained various new provisions relating to striking a fair balance between employer and employee/worker, but one particular provision, relating to workers' rights, has drawn criticism for being omitted. The provision contained details of flexible working rights, rights for staff to keep tips and protections against pregnancy discrimination, all of which are topics that arguably need reviewing. The omission of the Employment Bill from the Queen's recent Speeches has been noticeable, especially as it was initially announced by the government in 2019 but nothing of note has happened since then.  

There were two provisions that touched on employment aspects in the most recent Queen's Speech were the Bill of Rights and a Data Reform Bill. The content of both is still awaited but the Data Reform Bill is expected to contain provision that create a trusted UK framework that reduces burdens on businesses with respect to data protection whilst providing reform to the regime as a whole.

There is also the proposed Modern Slavery Bill, which will be relevant to businesses. The proposed amendments made by the government over two years ago in respect to modern slavery statements have now been reignited as part of the Queen's Speech. The new Bill is designed to strengthen the current provisions in respect to human trafficking and modern slavery, and it will also increase the accountability of companies and organisations in respect to their supply chains.

Currently, under s.54 of the Modern Slavery Act 2015 some information may be included in a slavery and human trafficking statement if the company wishes to do so, but it is not mandatory. However, the new Bill will introduce a mandatory requirement to include the following details:

• The structure and nature of the organisation
• Any internal policies in place regarding slavery and human trafficking
• Due diligence processes in place across the business and supply chains
• How risk areas in the business and supply chain(s) are identified and steps to mitigate these risks
• Effectiveness in ensuring that slavery and human trafficking is not taking place in its business or supply chains, measured against performance indicators as the organisation deems appropriate
• Training and resources available for staff in the organisation

Although it is already a requirement for statements to be published on an organisation's website with a link to the statement in a "prominent place", the requirement to publish the statement on the specified government registry is only optional. However, this will become mandatory for all (including public bodies) businesses that meet the requirements set out in s.54. There is also set to be a single enforcement body, able to impose financial penalties for non-compliance and a single reporting deadline.

Organisations should be aware that these new requirements may come into force for next year and therefore should ensure compliance with the law and consider updating their statement in line with the elements that will soon become mandatory.

New statutory code: "Fire and Rehire"

At the end of March 2022, the government announced it would introduce a new statutory code on the so-called (and hotly debated) "fire and rehire" practice, where employers dismiss a worker and re-engage them on different terms (usually less favourable).

The new statutory code on the practice will include practical steps for employers to follow. It will set out how employers should hold fair, transparent and meaningful consultations on proposed changes to terms of employment. Courts and Employment Tribunals will need to take the ACAS Code into account when reviewing cases, and as is currently the case for unfair dismissal claims, any failure to comply with the ACAS Code may result in an uplift of up to 25% of the compensation awarded to the employee.

We recommend any employer planning to change terms and conditions should seek legal advice and be attuned to the risks of such practices (e.g. legal claims, reputational damage and damage to employee relations).

Medical leave for period pain in Spain – will the UK be next?

A draft piece of Spanish legislation which seeks to introduce medical leave for those who experience severe period pain has recently been leaked to media outlets. The draft bill says that women may be granted up to three days' leave per month (paid by the state from day one) and may be extended to five days for particularly severe cases. A doctor's note is required for accessing this right and it is not expected to apply to those experiencing mild discomfort.

If introduced, this type of statutory leave would be the first of its kind in Europe. Globally, estimates state 60-90% of people who have periods suffer from severe period pain (known as dysmenorrhea)[1]. As a result of this recent development from Spain, UK charities are now calling on the UK government to consider similar leave.

[1] International Journal of Environmental Research and Public Health