Génevie Kuiper-Isaacson, Senior Associate
Génevie Kuiper-Isaacson is a tri-qualified lawyer specialising in employment law. She started her career in South Africa, where she ran her own firm, before moving to a prominent commercial firm in London. She has extensive experience advising both employees and employers in relation to a wide range of matters, including unfair dismissal, sex discrimination, pregnancy/ maternity discrimination, disability discrimination, race discrimination, TUPE, whistleblowing, grievance and disciplinary process, settlement negotiations, redundancies, enforcement and defence of restrictive covenants and corporate advisory and training.
This morning, ministers unveiled the Employment Rights Bill, a key part of the Labour government’s Make Work Pay Plan which brings forward 28 employment reforms, from “ending exploitative zero hours contracts and fire and rehire practices to establishing day one rights for paternity, parental and bereavement leave for millions of workers.” There were few surprises in the announcement, which mostly delivered on Labour’s manifesto commitments and past announcements. At the same time, today’s announcement did not answer any of the questions employment lawyers have been asking since Labour first outlined its plans nearly three months ago during the King’s Speech.
Perhaps the most eye-catching reform announced today is the introduction of day one rights for employees to bring claims for unfair dismissal. As things stand, workers must remain with their employer for two years before they can claim unfair dismissal at a tribunal. While removing this barrier may seem like a good thing for workers, it may yet have the opposite effect by stunting recruitment and further dampening Britain’s already gloomy labour market. Employers may well become skittish when it comes to hiring, knowing there is now a greater risk of being taken to an employment tribunal. It also remains to be seen how a potential influx of new claims will be accommodated within the already stretched employment tribunals system. The new rules will remain subject to a statutory probation period, which will be determined following government consultations. Hopefully, the forthcoming consultation process will allow the government to find a happy medium that works for both employers and employees.
The bill also promises to strengthen protections against unfair dismissal for pregnant women and new mothers. Currently, the law provides redundancy protections for pregnancy and maternity discrimination and for indirect sex discrimination resulting from pregnancy and maternity. Without further guidance on this, it is hard to predict the scope of these proposed changes, or what additional protections they will confer on workers.
Further changes introduced by the bill include an end to ‘exploitative’ zero-hours and low hours contracts. Under the proposed changes, workers will gain the right to a guaranteed hours contract if they regular work the hours over a defined period. The bill will also repeal certain pieces of anti-union legislation introduced by the Conservatives, including the Minimum Service Levels (Strikes) Act legislation.
Finally, the bill sets out Labour’s plan to establish a new enforcement agency – the Fair Work Agency – which will bring together existing enforcement bodies into a “a stronger, recognisable single organisation” that will both enforce rights on behalf of workers and support employers looking for guidance on how to comply with the law.
Welcomed proposals
While questions remain over many of the proposed changes, there was much to celebrate in the package of reforms. The right to request flexible working from the first day of employment will be welcomed by all parents and carers and should go some way to address the longstanding barriers that have prevented many people from entering the workforce. Large employers will also be required to create action plans setting out how they will address gender pay gaps and “support employees through the menopause.”
The bill also introduces the day-one right to paternity leave, unpaid parental leave and bereavement leave. However, parental leave will remain unpaid unless an enhanced benefit is provided by the employer, meaning some employees will be unable to access this new right. Unfortunately, these employees will typically be those with uncertain or low wages and the least access to justice.
Accompanying the legislation, the government has published a Next Steps document outlining its vision for future workplace reforms. Subject to consultation, these will include the right to “switch off” after working hours (except in exceptional circumstances), a commitment to end pay discrimination by expanding the Equality (Race and Disparity) Bill, mandatory reporting of ethnicity and disability pay gaps at large companies, and a review of the parental leave and carer’s leave system. The government will also look to move away from the existing legal distinction between employees and workers by introducing a single status legally recognised category of employment.
If you would like to know more about the Employment Rights Bill or how the proposed changes in employment law may affect you, contact Génevie Kuiper-Isaacson for an informal conversation.