In December 2018, the government published its Good Work Plan, which is designed to implement the proposals made in the 2017 Taylor Review. The reforms under the Good Work Plan are due to come into effect in April 2020, with the primary purpose of ensuring that individuals have better access to, and a better understanding of, their employment relationships.
There will be an increase to the administrative burden on employers with a new requirement to provide a more comprehensive statement of written particulars. Employers will also have to provide such statements to workers; previously, only employees were entitled to a statement of terms. In addition, not only will the new statement cover more terms and be applied to a wider scope of individual, it has now become a day-one right rather than the previous two-month buffer period.
The plan has also made a commitment to further align the tribunal assessment of employment status with HMRC’s. Currently there are three categories of employment status in the tribunal forum: employee, worker and self-employed, while as far as HMRC is currently concerned there are only two as it does not recognise ‘worker’ status. This often causes confusion for both the company and the individual and therefore any further alignment should be welcomed by both parties.
Interestingly, there will be an introduction of sanctions levied onto employers who have lost a second tribunal case on similar grounds to a previous claim. For example, if a company loses a claim for a failure to make reasonable adjustments and then proceeds to act unlawfully in the same way again, a tribunal will have the power to impose a financial sanction on the company. This could be an area that is rife for litigation itself in the future as:
- How do you measure whether the two cases are on ‘broadly comparable facts’?
- Does the decision-maker need to have an awareness of the first tribunal defeat when they repeat the unlawful conduct again?
- What period of time has to elapse before the first claim is disregarded?
In addition, it seems to have a disproportionate impact on larger companies who will now need to ensure they have good channels of communication in relation to tribunal claims.
Employers will also no longer be able to rely on a one-week gap to break continuity of service as the required time to break will be increased to four weeks. This is to reduce employers abusing the system by dismissing employees and then almost immediately re-engaging them to reset the clock on their employment rights such as unfair dismissal.
There will also be a new right available to workers and employees that after 26 weeks of service, they are able to request a fixed working pattern if they are dissatisfied with their current ad hoc arrangement. What is noteworthy about this notion is that it seems to run against the growing trend of promoting a dynamic and flexible workforce. However, it may be that the government’s belief is that an individual should not be forced to be flexible, just as an employer can no longer prevent an employee working flexibly without a strong business reason for doing so.
There is also an update on how employers should calculate holiday pay, with the reference period for the calculation to be increased from 12 to 52 weeks. This is aimed at ensuring seasonal workers, who have peaks and troughs in active service, receive a more reflective level of holiday pay throughout the year.
As 51 of the 53 Taylor Review proposals are to be implemented, it was impossible to cover them all in one article – but as you will see, the aim is that we will see a recalibration between worker and company.
Harry Abrams is a solicitor in the employment team at Seddons