Government activity - consultation papers and draft legislation of note

As Whitehall reverberates with new party leaders and the prospect of an autumn Brexit, there are some consultation papers and draft legislation worth noting;

Extending redundancy protection for women and new parents

Under Regulation 10 of the Maternity and Parental Leave Regulations 1999, if a woman’s role is made redundant whilst on maternity leave, she is entitled to be offered a suitable alternative role with her employer or an associated employer. She will be given precedence over any other employee applying for that role who is not on maternity leave.

In January 2019, the Government consulted on a proposal to extend this period of “redundancy protection” from the date when an employee notifies her employer of her pregnancy, through to six months after her return to work. The Women and Equalities Select Committee have supported this proposal and strongly agree that this protection should be extended to those on shared parental leave and adoption leave. We await the draft regulations implementing this extended protection.

National Insurance contributions and termination payments

Following on from changes made last April, whereby a proportion of a non-contractual termination payment became taxable, the Government have drafted a bill whereby employers will now have to pay National Insurance contributions for termination payments over £30,000, as well as income tax. For the charge to apply, the termination payment must be made in connection with the termination of the earner’s employment.

The Government’s thoughts behind such a change are to stop employers categorising other payments as termination payments to benefit from the existing exemptions from National Insurance contributions. We await the progress of this bill into law.  

Women and Equalities Select Committee (WESC) calls for change on the use of non-disclosure agreements (NDAs)

Following the public revelations that rocked, but maybe not shocked, the worlds of entertainment and certain major charities, coupled with the force of the #metoo movement, the Government has been prompted to address workplace cultures.

One practice that has come under fire for facilitating such toxic cultures is the use of NDAs. These agreements have been used historically to protect employers against employees disclosing confidential information about their employer, either during employment or after. More recently, NDAs have been used to “silence” employees from reporting sexual harassment suffered while in employment.

The WESC launched an enquiry into the use of NDAs back in November 2018 and has just recently published its report. It asks that the Government “reset the parameters” around the use of NDAs and goes further to request that the Government also address the perceived failings of the tribunal system, to ensure all employees who have experienced discrimination or harassment have a meaningful route for redressing their treatment. The report condemns the use of NDAs to circumnavigate investigations into allegations of discrimination and/or harassment, and highlights the pressure employees often feel to sign NDAs regardless of the legality and fairness of its contents.

The report recommends that the Government legislate so that NDAs cannot prevent legitimate discussions of allegations of unlawful discrimination and harassment and that plain English always be used. Other recommendations that have fallen on deaf Government ears previously include; imposing a mandatory duty on employers to protect employees from harassment and victimisation, and improving remedies at a tribunal, plus improving the costs systems for these type of claims to remove barriers to justice.

We await the Government’s response and whether they have the headspace, with all that is going on currently, to address this issue in any great detail or with any meaningful sense of purpose.  

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