Summer 2022 has been a relatively busy time for Employment Law; this blog below highlights some of the areas of interest that will impact individuals and businesses going forward. The Employment Rights Bill was shelved in 2019 due to the more pressing needs of the Coronavirus Job Retention Scheme at the height of the pandemic but two bills are proceeding through parliament; the Employment (Allocation of Tips) Bill and the Neonatal Care (Leave and Pay) Bill (see below). It is worth noting that the Queen’s speech in May earlier this year was silent on whether a wider Employment Bill will be reintroduced.

Government Status Update

In an effort to make the issue of employment status more easily digestible, for both companies and individuals engaged by those companies, The Government has released three new guidance documents:

• Employment status and employment rights: guidance for HR professionals, legal professionals and other groups;
• Employment status and rights: support for individuals; and
• Employment status and rights: checklist for employers and other engagers.

The issue of employment status is often not cut and dried and continues to be a heavily litigated with many high-profile employment law cases stemming from the influx of the gig economy.

Our previous blog highlighted the issue of employment status for both employment law purposes (as above) and the government’s CEST (Check Employment Status for Tax) tool for tax status purposes. Hopefully the above guidance and specifically the employment status checklist and table of rights will provide some further clarity, albeit from a guidance perspective only as the government web pages are not legally binding.

Menopause

The EAT decision in Rooney v Leicester City Council appears to have been the springboard for the Women and Equalities Committee (Committee) to set out in detail it’s recommendations for proposed reforms to the current legal framework surrounding menopause in the workplace.

In the EAT decision in Rooney, the EAT held that the ET was wrong to find that an employee was not disabled for the purposes of the Equality Act 2010 (Eq Act) despite suffering not insignificant menopausal symptoms. Presently Menopause is not expressly referred to in the Eq Act.

Whilst the government has stated presently there is no intention to enact “menopause” as the 10^th protected characteristic in the Eq Act or dual discrimination provisions in s.14 Eq Act, whereby discrimination claims could be brought on the combination of two protected characteristics (namely age and sex for such menopause claims), the Rooney decision coupled with the Committee’s proposals indicate that reform is on the horizon and employers should take heed.

Tips in full

The Employment (Allocation of Tips) Bill proposes to make it unlawful for employers to withhold tips from staff. It is estimated that such legislation will benefit approximately 2 million workers. Under the Bill, a new statutory Code of Practice will be developed as to how tips should be fairly distributed and further workers will be afforded greater rights to request information pertaining to their employer’s tipping record which will assist in any potential Tribunal litigation where the provision of tips is disputed. Employers will need to have in place a clear written policy for how tips are shared with their workers. It would be prudent in the race for talent in the hospitality sector for those employers who aren’t already transparent about the division of tips and gratuities to grasp the nettle now rather than lose staff as a consequence of not disclosing fully how tips are distributed to their staff.

Paid leave for premature births

The Neonatal Care (Leave and Pay) Bill, proposed by MP Mr Stuart McDonald for Cumbernauld, Kilsyth and Kirkintilloch East completed its second reading in Parliament at the end of July 2022. 

Under the proposed Bill, parents would receive additional paid leave (subject to meeting certain conditions regarding continuity of service and minimum earnings) under what would be termed “Neonatal Care Leave” when a baby is born prematurely.

NHS guidance considers a baby to be premature if the baby is born before the 37th week of pregnancy and further It is possible for a baby to survive when born at about 24 weeks of pregnancy.

If these reforms become law, the legislation would allow parents to children born prematurely to spend more time providing crucial care to their child without having to take unpaid leave, existing annual leave or returning to work much sooner than required in the circumstances as is the case currently.

Under the proposed Bill parents could take up to 12 weeks of paid leave, in addition to other leave entitlements such as maternity and paternity leave, to care for their premature child.

Once ratified Neonatal Care Leave would be available as a day 1 right and would apply to parents of babies who are admitted into hospital up to the age of 28 days, and who have a continuous stay in hospital of seven full days or more.

Disclaimer 

• Please note – this guidance is not intended to be taken as legal advice – for individual situations you will need to take specific legal advice.
• The information in this guide is correct as of August 2022 and should be read alongside the government’s specific guidance.

We hope you have found this note useful and if you do have any queries please get in touch.

Marie Walsh
Director, Employment Solicitor and Mediator
Mobile 07736252681
Reception: 0113 3229222
Address: 4 Park Place, Leeds LS1 2RU

Victoria Horner
Senior Associate
Mobile: 07516 030 528

Andy Boyde
Senior Associate
Mobile: 07516 030 531

Matthew Bretherick
Solicitor
Mobile: 07719 103 928