What's happening in employment law in 2021?

Key employment law developments in 2020
Expected employment law developments in 2021

Although the COVID-19 pandemic still dominates the agenda, the employment law landscape continues to evolve. This article reviews the significant developments in 2020 (eg, the establishment of the furlough scheme and various other emergency measures) and looks ahead to what is on the horizon for employment law in 2021 (eg, the IR35 reform, the possible introduction of the new Employment Bill and the impact of the Brexit trade deal).

Key employment law developments in 2020

Many of the employment law changes seen in 2020 were introduced in response to the COVID-19 pandemic. The most significant was the establishment of the furlough scheme. There have also been various other emergency measures – ranging from the changes to sick pay entitlement to the new right to carry forward holiday that could not be taken due to the pandemic.(1)

The pandemic understandably delayed the progress of most other non-COVID-19 legislative developments. Nonetheless, several changes to employment law took place during early 2020 because the legislation to bring those changes into effect was already in place before the pandemic took hold. For example:

• employers became obliged to provide a more detailed written statement of employment particulars to all staff (including workers) by day one of employment;
• working parents gained a specific entitlement to two weeks' paid bereavement leave in the event of losing a child under the age of 18 (for further details please see "Introduction of paid parental bereavement leave confirmed");
• the reference period for calculating statutory holiday pay increased from 12 weeks to 52 weeks;
• the so-called 'Swedish Derogation' (exempting certain agency workers from the principle of equal treatment) was abolished (for further details please see "Good Work Plan – first steps down the path");
• the threshold for demanding information and consultation arrangements was reduced from 10% to 2% of employees; and
• employers became liable to pay employers' national insurance contributions at 13.8% on termination payments exceeding £30,000.

The Equality and Human Rights Commission (EHRC) also issued significant new guidance on harassment (for further details please see "Significant new guidance on harassment from EHRC").

The courts were also affected by COVID-19, but nonetheless managed to publish some important decisions – most notably, the welcome decision in Morrisons (in which the Supreme Court concluded that an employer was not vicariously liable for misuse of personal data by a rogue employee) (for further details please see "Employer not liable for misuse of personal data by rogue employee").

The UK employment tribunals have rapidly implemented new technology for hearings in order to deal with the growing backlog of claims, alongside new rules of procedure designed to make hearings more efficient and flexible (for further details please see "Employment tribunals – will Winter 2020 see a flurry of claims?").

Finally, at the end of 2020, the government finally struck a trade deal with the European Union – just before the Brexit transition period ended – with some interesting potential immediate and longer-term implications for UK employment law (for further details please see "What does the Brexit trade deal mean for employment law?").

Expected employment law developments in 2021

COVID-19 will continue to dominate government and parliamentary time in the weeks and months ahead, so there may be little room for new legislation or policymaking.

However, the government recently launched two consultations:

• one on the reform of non-compete clauses, which explores whether non-competes should be paid or banned altogether (for further details please see "Government consultation on reform of non-compete clauses underway"); and
• one on whether exclusivity clauses should be banned in contracts with low-paid employees.

The legislative change with the biggest impact on the immediate horizon is undoubtedly the IR35 reform. At present, the changes are set to take place in April 2021. The new rules require medium and large-sized businesses in the private sector to assess the employment status of contractors who provide their labour through their own intermediary and, if appropriate, operate pay-as-you-earn and national insurance contributions (employers should not leave planning to the last minute). These changes were originally intended to take effect in April 2020 but were delayed due to the pandemic. There will be calls for further delay but, at the time of writing, the changes are still expected to take effect in April 2021.

Tthe new Employment Bill, which was originally promised in the Queen's speech in December 2019 but was also delayed due to COVID-19, may be published in 2021. The bill is likely to introduce or pave the way for various new employment laws, including laws which:

• make flexible working the default. As set out in the Conservative Party's election manifesto, the government intends to make flexible working the default position unless employers have a good reason not to (for further details please see "Election manifestos – what are the main parties pledging on employment issues?"). A full consultation is expected, but the Employment Bill is likely to include provision for new rights;
• introduce leave for neonatal care. A new right to 12 weeks' paid leave for parents whose babies spend time in special hospital neonatal care units is likely to be included in the Employment Bill and eventually come into force in 2023;
• introduce one week's leave for carers. The Employment Bill is also likely to introduce a new right for working carers to take up to five extra days' leave per year to help them to carry out their caring responsibilities;
• extend redundancy protection to pregnant employees and maternity returners. At present, employees have priority for alternative employment if they are made redundant during their maternity leave. The government plans to extend this period of redundancy protection to cover the period from when employees notify their employer of their pregnancy (whether orally or in writing) until six months after the end of their maternity leave. Similar protections will apply to parents returning from adoption or shared parental leave;
• introduce the right to request a more predictable and stable contract. The Employment Bill is also likely to introduce a new right for all workers with variable hours to request a more stable and predictable contract after 26 weeks' service. The bill may go further and introduce new rights for workers to be given reasonable notice of their working hours and to be compensated where their shifts are cancelled or curtailed without reasonable notice; and
• create a single labour market enforcement agency. The government intends to establish a single body with responsibility for state enforcement of employment law for more vulnerable workers. Its remit would encompass matters such as gangmaster licensing. It would also take over minimum wage enforcement from Her Majesty's Revenue and Customs and have a new role in enforcing holiday pay for vulnerable workers. The Employment Bill is expected to make provision for the establishment of the new agency, but it will likely be many years before it is up and running.

The government committed some time ago to legislating on non-disclosure agreements to make them void unless they meet certain requirements and employees have received specific legal advice thereon. Legislation on this may emerge during 2021, either in the Employment Bill or separately. The EHRC may start consulting on a new Code of Practice on Harassment, building on the major guidance that it published in 2020 (for further details please see "Significant new guidance on harassment from EHRC"). There may also be some progress on ethnicity pay reporting.

More immediately, two significant Supreme Court decisions are expected – in the case concerning whether Uber drivers have worker status and the Royal Mencap Society case (about whether sleep-in workers are entitled to national minimum wage only when they are awake and working).

Elsewhere in the courts, decisions about COVID-19-related issues (eg, disputes about health and safety at work or furlough) are likely.

Perhaps the most interesting issue to watch is whether the UK government seeks to change any aspect of EU-derived employment law. Changes to employment rights that affect trade or investment would breach the government's non-regression promise in the Brexit trade deal, but more minor changes are allowed, and it remains to be seen whether the government will act early to exercise its new freedoms or whether it is unwilling to rock the boat with the European Union (for further details please see "What does the Brexit trade deal mean for employment law?"). Meanwhile, the Supreme Court will consider three cases on holiday pay in 2021, which could potentially provide some indication of its approach to settled European Court of Justice case law in the new post-Brexit world.

For further information on this topic please contact Richard Moore or Gemma Taylor at Lewis Silkin by telephone (+44 20 7074 8000​) or email (richard.moore@lewissilkin.com or gemma.taylor@lewissilkin.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.

Endnotes

(1) Further information on COVID-19 and employment law is available here.