Bulletins | January 14, 2019

The Good Work Plan

It has been trailed by the Government as the most important package of employment rights for a generation. Whilst it does contain a number of actual and potential new measures, our detailed analysis below suggests that significant parts of it remain to be fleshed out. However, there are concrete changes that will come into force in April 2020.

Measures effective from 6 April 2020
Written statement of terms and conditionsA written statement of employment particulars is to be provided on the first day of work, not within 8 weeks of the start date as is currently the case.

In addition, this right will be extended to all workers, not just employees.

However, enforcement of the right will still only be possible if the individual is bringing certain other claims before an Employment Tribunal.
Continuous employmentIn order to protect those who work intermittently and who struggle to build up key employment law rights, the gap in employment required to break continuity will be extended from one week to four weeks.
Holiday payThe reference period for calculating holiday pay will increase from 12 weeks to 52 weeks, in order not to disadvantage workers with fluctuating pay.

In addition:
- a campaign will be launched to improve awareness of holiday rights; and
- new guidance with real examples and an improved holiday entitlement calculator will be introduced.
Information and consultation agreementsIn order for give workers a say in the workplace, something which is believed to increase organisational performance and boost productivity, the threshold for compelling employers to negotiate an information and consultation agreement will be reduced from 10% of workforce to 2% of the workforce, subject to a minimum of 15 employees.

Note also the separate new employment engagement requirements on large and medium-sized companies which came into force on 1 January 2019 and which are analysed here.
Agency workers – pay between assignmentsThe "Swedish derogation" (i.e. the provision in the Agency Workers Regulations that facilitates avoidance of the obligation to give agency workers pay parity with other staff) will be abolished.

Agency workers can currently exchange their right to equal pay with permanent employees in return for a contract guaranteeing pay between assignments. However, BEIS research indicates that this is being unfairly exploited and that agencies are using various methods of avoiding paying individuals between assignments.
Right to request stable working relationshipIn response to "one-sided flexibility" in some employment contracts (e.g. where an employer could cancel shifts on short notice and offer no guarantee of work), both workers and employees will have the right to request a more fixed working pattern after 26 weeks of service. For example, they could request more certainty around the days or hours on which they are asked to work.

However, there will be no obligation on employers to provide greater certainty.
Measures with no effective date yet announced
Tips and gratuitiesThe Government proposes to ban employer deductions from tips and gratuities (e.g. by way of so-called "admin charges").
Employment statusThe Government intends to put forward legislation to clarify employee and worker status and in doing so will seek to align the employment status tests that apply to employment rights and tax status, in order to reduce confusion.

New legislation in this area is a tough challenge. The current legal tests are multi-factorial and highly case-sensitive. In order to move away from them, and provide a high degree of certainty, legislation will have to take a radical and/or narrower approach.
Agency workers – key facts documentIt is proposed that a "Key Facts" document should be provided to agency workers detailing the type of contract, the minimum expected rate of pay, how they will be paid and by whom (for example, by an intermediary or umbrella company), any deductions or fees that will be taken, and an illustrative example of what this might mean for their take-home pay.
Tribunal penaltiesIt is proposed to increase the maximum penalty for an aggravated breach of employment law from £5,000 to £20,000. This can be imposed in addition to any financial compensation awarded to an employee.