Employment Law: Beyond the 2015 Election

In this blog we’re taking stock of the departing government’s changes to the law and inspecting the manifestos of the main political parties to see what might lie in store for the next parliament.
Where is HR law at the end of this government?

The past five years have been a period of significant change in employment law. That’s really saying something in an area which is updated every six months in a quiet year! We have seen the qualifying period for unfair dismissal rights doubled from one year to two years and disgruntled employees now face substantial fees if they want to take their employers to task in the Employment Tribunal.

We also have mandatory ACAS Early Conciliation before the parties can get as far as the Tribunal. It is free to use and in our experience it appears to be working well. Where settlement is appropriate it is a good way of forcing the parties to the negotiating table. Where a claim is misconceived, the process can help the claimant to realise this, before both sides spend time and money on the Tribunal itself. Of course, there will always be cases where the parties are so far apart that the process is just a formality before litigation commences in earnest.

The right to request flexible working is now in place for (almost) everyone, not just parents and carers, but it remains to be seen how many of the wider workforce have taken advantage of this option. Parents and employers alike are starting to get to grips with the new concept of Shared Parental Leave.

So what will we see in the next five years if the manifestos are to be believed? Below is our pick of the promises.

Before we get started, it is worth noting that nearly all the parties intend on looking at zero hour contracts. These contracts have received some bad press recently so it is not surprising that the subject appears across the manifestos and we have not commented on the different proposals in this blog.
Labour

Perhaps of most interest is what Labour have said about Tribunal fees. Shadow Business Secretary, Chuku Umunna MP, has explained that he would “scrap the Employment Tribunal fees this government introduced and reform the system so that no one is denied access to justice.” Will this means that fees are removed altogether? Perhaps not and we would expect to a see a reduction rather than the abolition of fees. The manifesto says that they will ask the TUC and CBI to consult on what reforms are needed.

They are several pledges relating to the National Minimum Wage; they include getting tougher on those who do not pay it, raising it to more than £8 by 2019, introducing incentives for employers to pay the living wage and requiring listed companies to disclose whether or not they pay the living wage.

In relation to the families at work, they will extend paternity leave from two weeks to four weeks and increasing paternity pay to more than £260.

When it comes to equality the party says it would “go further in reducing discrimination against women” by requiring large companies to publish their gender pay gap and strengthening the law against maternity discrimination.

We understand that the Labour Party would reverse the “shares for rights scheme” which introduced the new concept of Employee Shareholders in 2013. However, there is no detail as to how this will happen and it is not in their manifesto.

There is also reference to a review of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (or “TUPE”). This could be an exciting area of change, but it has to be said that successive governments have considered this and yet TUPE remains relatively unchanged.
Conservative

As explained above, the Conservative/Lib Dem coalition has just undergone a complete overhaul of employment law so it’s not perhaps surprising that there is less to discuss in this section.

The Conservatives say they will aim to transform policy, practice and public attitudes to get hundreds of thousands of disabled people into employment.

They will also require companies with more than 250 employees to publish the difference between the average pay of their male and female employees and we understand that legislation was introduced before parliament was dissolved.

The party promises a renegotiation of EU membership and then an in/out referendum by the end of 2017. This would be an interesting development as much of the UK’s employment law is derived from EU law.

A recent headline-grabber was the intention to require public sector employers and companies with more than 250 employees to give staff up to three paid days off a year to do voluntary work.

In line with the other parties, there is also a promise for an above-inflation rise in the National Minimum Wage, but no figures have been given.
Liberal Democrats

Like Labour, the party are promising to review Tribunal fees. Jo Swinson MP, Employment and Equalities Minister, has said that, if elected, the Liberal Democrats would “review the level of tribunal fees to ensure that they do not prohibit people from making bona fide claims.”

In relation to families, they would extend paternity leave to six weeks and make it a “day one” right along with shared parental, which at the moment both require roughly six months service.

There is also a separate manifesto dealing with Black, Asian and Minority Ethnic (“BAME”) issues such as representation on boards, pay gaps and caste discrimination.

Like the parties above, they will look at ways of setting a living wage and increasing the National Minimum Wage by getting tougher on those who try to get around it, for example by labelling employees as self-employed or unpaid interns.

By 2020, the party says it will extend pay transparency further by requiring employers to publish the number of people being paid less than the living wage and the ratio between top and median pay.

Looking ahead…

Rather than summarise every party’s full stated intentions in this blog, we have selected the ones that have caught our eye as being of the most relevance to most employers.

We will be watching intently once a new government is formed and the business of parliament gets underway. You can keep up to date by signing up to our newsletter and watching out for news of our biannual update webinars which are usually in March and October.

This BBC guide is also a handy tool for comparing election promises.

Are you concerned about where employment and HR law will go in the coming years?

If you want to discuss any of the above issues and how they might impact on your business, please get in touch on 020 7234 0200 or email employment@waterfront.law