Employment Law: Anticipated Future Changes

Non-disclosure agreements

The use of non-disclosure agreements and the proposal to prevent the misuse of confidentiality clauses in non-disclosure agreements (NDAs) are expected to soon become common practice, especially in the settlement of workplace harassment or discrimination disputes.

The new requirements will limit confidentiality and require independent legal advice on the limitations of any confidentiality clause. Typically, in settlement agreements you would find non-disclosure clauses that limit the use of any information that could damage the reputation of the employer. In short, the proposal will be designed to stop employers hiding when they have not acted appropriately in dealing with harassment and/or discrimination.

The new requirements will therefore stop the “sweeping under the rug” culture that seems to have become the norm with the use of settlement agreement and non-disclosure agreements.

Neonatal leave and pay

The Good Work Plan contained a commitment to introduce extra statutory leave and pay for all parents of premature babies needing specialist care in neonatal units.

In March 2020, the government confirmed its intention to introduce 12 weeks’ paid leave for parents of premature babies to avoid them having to choose between returning to work and taking care of their child. Announcements prior to the Budget indicated the premature baby leave would be in addition to existing maternity and paternity pay provisions. Although details on how it will work are yet to be released, the leave is expected to be taken after any maternity or paternity leave, in blocks of one or more weeks, and paid at the statutory rate for those employees with 26 weeks’ service or more.

There was also a Budget 2020 commitment to consult on a new ‘in-work entitlement’ for employees with unpaid caring responsibilities, such as for a family member or a dependant, but nothing has yet been confirmed.

Extending Pregnancy Protection

The government is expected to make proposals to protect those at risk of redundancy while on maternity, adoption, or shared parental leave. These employees will have the right to be offered any suitable alternative vacancy that is available.

The government is proposing to extend this protection to:

• pregnant employees, once they have told their employer of their pregnancy
• employees returning from maternity or adoption leave within the previous six months
• parents returning from shared parental leave (the limits on this have yet to be confirmed)

The proposals are in response to a consultation earlier in the year on pregnancy and maternity discrimination. Prevalent issues arose that a disproportionate number of employees who announced pregnancies were having their employment terminated as a faux redundancy, and employees returning from maternity leave found they had effectively been replaced.

The return of gender pay gap reporting

The compulsory production of gender pay gap reports was paused due to the COVID-19 pandemic. This is expected to return soon.

Organisations with at least 250 employees by the relevant snapshot date are eligible to produce a report. For public sector companies, this was 30 March 2020, for private sector companies this was 5 April 2020. If staff were furloughed on these dates, and therefore earning 80% of their wages, they will not need to be included in the report. This means that the figures companies end up publishing may not be fully representative of the actual situation, so they should ensure this is clearly outlined in accompanied narrative.

Find out more

If you’d like to find out anything more about this article, we’ll be happy to help. Harinder Sangha is a Senior Solicitor in Eric Robinson’s Employment Department. Harinder can be contacted by email: harinder.sangha@ericrobinson.co.uk