Employment legislation update - Week ending 28 May
Hansard records from 25 May 2021 confirm that the Government still intends to implement the Employment Bill when parliamentary time allows despite no reference being made to it in the recent Queen’s Speech. Paul Scully MP, the Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (BEIS), stated in response to questions that:
“The Secretary of State and I believe that workers’ rights should be enhanced and protected, so we are absolutely committed to bringing forward an employment Bill that will help us to build back better and to protect vulnerable workers, delivering on our ambition to make the UK the best place in the world in which to work and grow a business. While we are waiting for the employment Bill to come forward in parliamentary time, we will continue in that way.”
Modern Slavery revised guidance
On 25 May the Home Office published revised statutory guidance on how to identify and support victims of modern slavery. The guidance is published under section 49(1) of the Modern Slavery Act 2015. This supersedes the previous guidance and should be taken into consideration when assessing relevant policies and in publishing an annual modern slavery statement.
Workers now protected from health and safety detriment
The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 came into force on 31 May 2021. A worker will not be regarded as having been subjected to a detriment in contravention of the new protection in section 44(1A) of the Employment Rights Act 1996 if the date of the relevant act or failure to act, or the last of a series of similar relevant acts or failures to act, occurred before 31 May 2021.
Status of Workers Bill
Put forward by Lord Hendy the Private Members Bill will probably not proceed to become legislation. However, it may be relevant when considering how worker status reforms may be framed in the future should the Good Work Plan from the Taylor Review in 2017 be implemented. The Government responded by accepting 51 of the 53 recommendations made in the Plan. A number of which have already been implemented including the requirement to provide a written statement of particulars on day one, extending the right to workers, abolishing the Swedish Derogation for Agency Workers and for holiday pay extending the pay reference period to 52 weeks.
It also recommended that in relation to employment status the Government should set out the status tests in legislation. There has been public consultation on these reforms but so far, no legislation which leads us to the Workers Status Bill. This provides for a new section 295 to be included in the Trade Union and Labour Relations (Consolidation) Act 1992:-
“Meaning of worker and related expressions
- (1) In this Act—
- (a) “worker” and “employee” both mean an individual who—
- (i) seeks to be engaged by another to provide labour,
- (ii) is engaged by another to provide labour, or
- (iii) where the employment has ceased, was engaged by another to provide labour,
- and is not, in the provision of that labour, genuinely operating a business on his or her own account;
- (b) an “employer” in relation to a worker or employee is—
- (i) every person or entity who engages or engaged the worker or employee, and
- (ii) every person or entity who substantially determines terms on which the worker or employee is engaged at any material time;
- (c) “employed” and “employment” mean engaged as an “employee” or as a “worker” under paragraph (a) above;
- (d) “contract of employment” means a contract, however described, whereby an individual undertakes to do or perform any labour, work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual, and any reference to the contract of an employee or a worker shall be construed accordingly.
- (2) It is for a person who is claimed to be the employer and contests that claim to show in any legal proceedings that—
- (a) he or she is not the employer, or
- (b) the person providing the labour is not an employee, a worker, employed, or in employment, as the case may be.
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