Labour’s policy document published at the beginning of the election campaign – “Labour’s Plan to Make Work Pay” –  has so much detail in it that I have already written about it in two posts. The first looked at trade union law and the second looked at individual employment rights. In this post I’m going to look at Labour’s proposals for amending the Equality Act and a series of other measures that loosely fall within the category of ‘family-friendly’ rights.

First something that it appears Labour is no longer proposing. I have previously written about two proposals Labour had made to extend the Equality Act provisions on equal pay to the protected characteristics of race and disability and to enact S.14 of the Act which deals with ‘dual discrimination’. Both proposals were, in my view, very bad ideas and it is worth noting that neither are mentioned in this new document. I hope they have now been dropped and we can all carry on like that never happened.

As for what they are proposing, I’ll deal with each topic in the order in which it appears in the Labour document.

Flexible working

Labour was responsible for the introduction of the right to request flexible working in the Employment Act 2002. It has proved to be a popular right and has been significantly extended under subsequent Conservative governments. The most recent extensions of the right – making it a ‘day one’ entitlement and reforming the procedure for making a request – came into force at the beginning of April this year. 

Labour proposes to bolster the right still further by “making flexible working the default from day one for all workers, except where it is not reasonably feasible”. That word ‘default’ is carefully chosen.  In 2019 the Conservative manifesto said 

We will encourage flexible working and consult on making it the default unless employers have good reasons not to. 

The recent changes that we have seen were clearly intended to meet that commitment – but it is very hard to argue that the minor procedural amendments that were made by the Employment Relations (Flexible Working) Act 2023 amount to making flexible working the ‘default’ option.  

The central issue with the right to request flexible working is that although the employer can only refuse the request for business reasons, the law requires the employer to be sincere rather than reasonable. As long as the reason given is genuinely the reason for refusal and as long as any facts cited by the employer are true, there is no room for arguing that the decision itself is an unreasonable one. Labour’s proposal seems much more explicit that the right will be reformed to introduce this element of reasonableness to the process, making it harder for an employer to refuse requests and easier for employees to succeed in their claim. 

Maternity discrimination

It is automatically unfair (as well as discriminatory) to dismiss an employee because she is pregnant. Labour proposes to make it “unlawful to dismiss a woman who is pregnant for six months after her return, except in specific circumstances”. Ignoring the bad writing (six months after her return, the woman will no longer be pregnant) what is this proposal getting at?

Article 10 of the EU Pregnant Workers Directive says that member states (I know we aren’t one, but bear with me) must prohibit the dismissal of workers from the beginning of their pregnancy to the end of their maternity leave “save in exceptional cases not connected with their condition”. It was sometimes argued in employment law circles that UK law did not really implement this requirement because pregnant employees had no special protection against dismissal provided they were not dismissed because of their pregnancy. There was of course a duty to offer suitable alternative work (when available) to an otherwise redundant employee on maternity leave, but no protection against redundancy per se. 

As it happens the European Court of Justice ruled in 2018 that Article 10 was concerned with dismissals for reasons connected with pregnancy and did not prohibit, for example, a redundancy that was in no way related to the employee’s condition. Nevertheless, the idea that a pregnant employee’s protection against dismissal was insufficient under the current law has taken root. Labour’s proposal is to allow the dismissal of pregnant (and newly returned) employees in ‘specific’ circumstances but does not specify what those circumstances would be and there is no suggestion that they would need to be exceptional. I suspect that what this will turn into is a requirement for employers to demonstrate the dismissal of such an employee is genuinely for a reason that is nothing to do with pregnancy or maternity. Since employers should, if they have any sense, already be incredibly careful about dismissing employees in these circumstances, I don’t think a change along these lines should cause too much difficulty.

Bereavement leave

Labour pledges that it will introduce the “right to bereavement leave for all workers”. We don’t get any more details about that. Currently there is a right to parental bereavement leave which is two weeks of unpaid leave for parents who suffer the death of a child so perhaps Labour simply intends to widen the right to cover the loss of any close relative.  The introduction of a right to unpaid bereavement leave would not have much of an impact as few people are in a position to take it – and in the context of bereavement, employees with no right to paid leave are often signed off sick for a period in any event. We will have to wait and see whether there is any paid element to the leave that Labour introduces. 

Equal pay

Of all the proposals Labour is making, this is potentially one of the most significant:

Labour will put in measures to ensure that outsourcing of services can no longer be used by employers to avoid paying equal pay

What does that mean? Older readers may remember the equal pay crisis that swept local government in the noughties, the ramifications of which are still being felt today (ask anyone in Birmingham). Those cases would typically involve employees in female dominated occupations such as school catering assistants or office cleaners claiming equal pay with male dominated occupations such as maintenance workers. One issue that determined the extent to which an individual council was ‘hit’ by such claims as the extent to which it had contracted out its services to the private sector. This is because to claim equal pay you must be in the ‘same employment’ as your comparator – or at the very least there must be an employer who is the ‘single source’ of the difference in pay and in a position to eliminate it. 

So if a council had outsourced its school catering assistants or cleaners to a firm like Rentokil or Compass, those employees would not be able to bring claims because their pay was determined by their employer rather than the council. On the other hand, councils that ran their own services remained vulnerable. As a result we were more likely to see large scale equal pay claims in Labour run councils that had resisted contracting out rather than Conservative councils that revelled in it. Is Labour going to change the Equality Act so that an employee in a contracted-out service can claim equal pay with workers directly employed by her employer’s client? That is how I read their proposal and if that is right, it is a very big deal.  

Public-sector duties

The reason the Equality Act is called the Equality Act is that one of the key measures it was intended to introduce was a duty on public bodies to have regard to the desirability of exercising their functions “in a way that is designed to reduce the inequalities of outcome that result from socio-economic disadvantage’. However, the Act was only passed in the wash-up before the 2010 General Election and the new coalition Government, not being a fan of this measure, did not bring it into force. While the duty does now apply in Scotland and Wales – it is not yet in force in England. Labour proposes to bring it in.

I’m not terribly excited about that – I’m not a big fan of the public sector equality duties. They strike me as something of a tick box exercise. They may be useful in seeking the judicial review of decisions you don’t like, but I’m not convinced that they really do that much to eliminate discrimination or promote equality.

Nevertheless Labour reaffirms its commitment to the existing public sector equality duty – a duty on public authorities to have ‘due regard’ to the need to eliminate unlawful discrimination. Given that, there is one thing not mentioned in Labour’s document that I think will be worth watching. Under the Equality Act the Secretary of State has the power to impose specific duties on public bodies to help them further their general duty to promote equality. Again this fell to be implemented by the new Government in 2010 and the specific duties imposed by the then minister for Women and Equality Theresa May were, to say the least, modest. But a Government that actually believed in the duties would be able to put this power to much more extensive use. Could we see specific equality targets being set for the public sector?

Pay gap reporting

I have often said that my nightmare for employment law is that it eventually turns into a series of rights to request things and duties to report things. I’ve also been sceptical in the past about the duty on large employers to report their gender pay gap. Labour proposes to add a duty on employers to publish ‘action plans’ on how they will close their gender pay gaps – which is odd, because having a gender pay gap isn’t illegal so there is no duty to actually seek to close it. 

Labour also proposes to introduce new duties for large companies to report their ethnicity and disability pay gaps. This will cause all sorts of problems. The issue of ethnicity pay gap reporting was consulted on under Theresa May’s administration and the consultation document very fairly set out the many reasons why this is a more difficult duty to implement than gender pay gap reporting. Let’s see how a Labour Government (if there is one – should I keep saying that?) gets to grips with the issues.

Menopause

How employers support employees going through the menopause is increasingly talked about in HR and employment law circles (I wrote about the issue of disability and the menopause here). Labour would introduce a duty on employers with more than 250 employees to produce menopause action plans “setting out how they will support employees through the menopause, much like gender pay gap action plans”.  Another duty to produce a report on something – I’m not a fan. 

Time limits

One proposed reform that will apply to all Tribunal claims – but which feels particularly relevant in the case of discrimination – is to increase the time limit for bringing an employment tribunal claim from three months to six months. This should be welcomed. A three-month time limit is absurdly short. A six-month time limit still gives employees little opportunity to resolve matters internally or gather evidence that might indicate that they have a claim before committing themselves, but it would undoubtedly be an improvement

…still not finished. 

This is my third post and I still haven’t covered everything Labour is proposing for employment law. I think one more ‘mop up’ post should do it. I can’t stress enough that the sheer volume of what Labour is means that implementing it all in one go is just not an option. In fact, I would be really surprised if they managed to legislate for everything they have promised to do in employment law within a first term. A key question for the next two to three years is what issues will Labour prioritise? I hear that the manifesto is due on 13 June – perhaps that will give us a clue?