What to expect during 2021 – employment law developments

Due to the pandemic, 2020 saw the postponement of expected legislation, Government consultations and outcomes, and key cases. We outline the developments anticipated for 2021.

Employment Bill

In December 2019, the Government announced that it would introduce a new Employment Bill. It is expected to be published during 2021. The likely areas of change are based on their response to the Taylor Review and the Good Work Plan, see our article here.

Neo-natal leave and pay

The Government seeks to introduce a new right for parents to take an extra week of leave for each week their baby is in neo-natal care, up to a maximum 12 weeks. The leave will be added to the end of maternity or paternity leave and all employees will be eligible. However, to receive statutory paid leave, employees must have 26 weeks’ or more service and earn above the statutory minimum threshold. The weekly rate of statutory pay is likely to the same as for other statutory family-related pay, currently £151.20 per week. Employers will be able to claim at least 92% back, with small employers able to recover 103%.

Leave for carers

We await the Government’s consultation response on proposals to introduce a new right for employees with caring responsibilities to take a week’s unpaid leave each year. It is not yet known what the eligibility and notification requirements may be.

Extending redundancy protection for pregnant employees and new parents

If the Pregnancy and Maternity (Redundancy Protection) Bill 2019-21 passes into law, it will prohibit redundancy dismissals of women during pregnancy and maternity leave and for six months after the end of maternity leave, except in specified circumstances. These circumstances would likely include where businesses are closing or ceasing work in the relevant area.

IR35 changes – Off-payroll working rules for the private sector

The changes to the IR35 rules, which will affect large to medium businesses who have individuals who provide services to them through personal service companies, were postponed until 6 April 2021. See our article here for a reminder of what rule changes mean for affected businesses.

Post-termination non-competition clauses and non-disclosure agreements (NDA’s)

The Department for Business, Energy and Industrial Strategy (BEIS) opened a consultation on the options to reform post-termination non-compete clauses (restrictive covenants) in contracts. The Government also published proposals to prevent the misuse of confidentiality clauses or non-disclosure agreements. See our article on NDA’s here and on restrictive covenants here.

Extending ban on exclusivity clauses in zero hours contracts

BEIS opened a consultation on extending the ban on exclusivity clauses in employment contracts. Currently, it is unlawful to prevent zero hours contract workers from also working for other employers, and the proposal is to extend this to those earning under the Lower Earnings Limit (currently £120 per week).

Statutory rate increases for 2021

The Government published the statutory rates for 2021 including for Statutory Sick Pay and Statutory Maternity pay. Read the new rates here.

Requesting employer support for domestic violence sufferers

The Government published a letter to employers this month, asking them to consider whether their organisation is identifying signs of domestic abuse in its employees, and to urge them to help affected employees access support. The Chartered Institute of Personnel Development and Equality and Human Rights Commission published a guide to assist employers here.

Key cases to watch for 2021:

Voluntary overtime and holiday pay

In our previous article we discussed how case law has developed regarding what employers need to include in holiday pay. On 22 June 2021, the appeal from the Court of Appeal case of Flowers and others v East of England Ambulance Trust will be heard at the Supreme Court. This will determine whether holiday pay under the Working Time Directive must include regular voluntary overtime, as was the judgment at the Court of Appeal stage.

Holiday pay and the ‘series of deductions’ point

We reported in November 2014 on the outcome in the Bear Scotland case. In that case, it was established that claims for under payments of holiday pay would generally be out of time if there had been a break of more than three months between successive under payments. However, in the Agnew case, the Northern Irish Court of Appeal held that a series of unlawful deductions from holiday pay would not be interrupted by gaps of more than three months. The Supreme Court is due to hear the Agnew appeal in June 2021. A Supreme Court ruling (binding throughout the UK) could be a significant decision for future holiday pay claims.

Holiday leave for part-year workers

In August 2019, we reported on the Harpur Trust and Brazel case and discussed how it affected the way holiday leave should be calculated for part year workers, such as term time only workers. In November 2021, the Supreme Court is due to hear the appeal.

Pay for sleep-in shift workers

We are awaiting the Supreme Court’s judgment in Royal Mencap Society v Tomlinson-Blake , a case heard in February 2020. The Court of Appeal held that workers on sleep-in shifts were only entitled to receive the National Minimum Wage for time spent during shifts when they were required to be awake to carry out their working duties, not for the entire shift. The decision is expected soon.

The latest on the Uber case – definition of ‘worker’

In December 2018 we reported on developments in the Uber case. It went to the Supreme Court in July 2020, so it could be determined whether the Court of Appeal’s finding that Uber drivers were “workers” should be upheld, and if so, what periods constituted “working time”. We have no information yet on when the judgment will be issued.