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Legislation Tracker

Legislation Tracker

13/04/2021

This page contains information about recent and forthcoming legislative changes which impact on schools and colleges. Our focus is on the developments likely to be of most significance to the sector and is therefore not necessarily exhaustive.

Forthcoming Changes

Date TBC: Use of non-disclosure clauses in settlement agreements and contracts

  Relevance: All settings 

Legislation: TBC

In July 2019 the Government published its response to consultation on preventing the misuse of confidentiality clauses in the workplace. This was undertaken chiefly as a response to certain cases where employers had used such clauses to prevent victims of harassment or discrimination from speaking out. As a result, the Government has committed to:

  • legislating so that no provision in a confidentiality clause can prevent disclosures to the police, regulated health and care professionals and legal professionals;
  • legislating so that limitations in confidentiality clauses are clearly set out in employment contracts and settlement agreements;
  • producing guidance for solicitors and legal professionals responsible for drafting settlement agreements;
  • legislating to enhance the independent legal advice received by individuals signing confidentiality clauses;
  • enforcement measures for confidentiality clauses that do not comply with legal requirements in written statements of employment particulars and settlement agreements.

 

Legislation is expected as soon as “Parliamentary time allows”. Guidance has already been produced at the request of the government by the Equality and Human Rights Commission (October 2019) and ACAS (February 2020). We will revisit our own template contract and settlement wording once draft legislation is available to ensure compliance. We will also publish further advice closer to the implementation date once known.

Last updated: 8th April 2020

Date TBC: Extension of redundancy protection for new and expectant mothers / parents

  Relevance: All settings 

Legislation: TBC

In July 2019, the Government published its response to consultation on extending redundancy protection for women and new parents.

Women on maternity leave (as well as those on adoption and shared parental leave) already have special protection in a redundancy situation, meaning that employers have an obligation to offer suitable alternative employment where it exists, in preference to others at risk of redundancy.

The Government has now committed to extending this protection as follows:

  • Protection will apply from the point the employee informs the employer that she is pregnant (whether orally or in writing) and will extend until 6 months after the mother has returned to work;
  • For those taking adoption leave, protection will also extend until 6 months after the return to work;
  • A similar principle to adoption leave will apply for shared parental leave except that, in recognition of the differences between SPL and maternity leave, a different approach will be required (for example the period of protection will need to be proportionate to the amount of leave taken, bearing in mind that periods of SPL may be much shorter).

 

The Government has also committed to establishing a taskforce of employer and family representative groups to make recommendations on what improvements can be made to the information available to employers and families on pregnancy and maternity discrimination. It will also develop an action plan on what steps Government and other organisations can take to make it easier for pregnant women and new mothers to stay in work.

Last updated: 8th April 2020

Date TBC: Introduction of carer's leave

  Relevance: All settings 

Legislation: TBC

The government is consulting on proposals to give employees who are carers a week of unpaid leave each year for the purpose of undertaking their caring responsibilities.

The consultation (closing on 3th August 2020) is seeking views on:

  • how carers use existing employment rights
  • who should be eligible to take the leave
  • what the leave can be taken for
  • how the leave would be available to take and the process for taking the leave
  • the costs and benefits to employers and employees

 

There are no indications at present on the possible timetable for implementation.

Last updated: 23rd July 2020

Date TBC: Introduction of neonatal leave and pay

  Relevance: All settings 

Legislation: TBC

The government has confirmed its response to the consultation on neonatal leave and pay conducted last year. As a result it intends to introduce a statutory leave entitlement for parents of babies in neonatal care (and pay, subject to qualifying conditions) in the forthcoming Employment Bill.

Last updated: 23rd July 2020

Date TBC: Change to continuity of employment rule

  Relevance: All settings 

Legislation: TBC

As part of the government’s 2018 Good Work Plan, the period of time required to break an employee’s continuous service is due to increase from one week to four weeks. The aim is to make it easier for employees who work intermittently over a period of time to access statutory rights.

Last updated: 23rd July 2020

Date TBC: Right to request a more stable contract

  Relevance: All settings 

Legislation: TBC

As part of the Good Work Plan, workers who undertake irregular hours who would like more certainty will be able to request a more fixed working pattern from their employer after 26 weeks of service.

Last updated: 23rd July 2020

Date Reminders for 2021

30th March / 4th April REMINDER: Gender pay gap reporting deadline

  Relevance: Employers with at least 250 staff on the snapshot date 

Public sector organisations within scope of gender pay gap reporting must publish their report by 30th March each year (for the private and voluntary sectors the report deadline is 4th April).

For more on gender pay gap reporting, see our Equality Law > Guidance and Information page.

Enforcement of gender pay gap reporting was suspended in 2020 (which would have reported 2019 data) due to the Covid-19 pandemic. The suspension was expected to be a one off, however the EHRC announced in February 2021 that enforcement on organisations that fail to report their data will be suspended until 5th October 2021. Whilst 2020 data will therefore still need to be submitted in 2021, this effectively means that schools and colleges in scope have up to a six months grace period to get their data reported.

31st July REMINDER: Trade union facility time reporting deadline (public sector)

  Relevance: All public sector bodies with more than 49 FTE employees 

Reports on facility time usage must be submitted by 31st July each year, covering the year from April to March.

In 2020 the Cabinet Office extended the reporting deadine to 30th September due to the coronavirus pandemic but we anticipate this to be a one-off arrangement with reporting arrangements returning to normal in 2021.

 

Quick Summary of Reporting Requirement:

The local authority is responsible for reporting in respect of its community and voluntary controlled schools and PRUs (but schools may have to provide information to the LA about local union representatives).

Subject to the minimum size requirement*, other public sector bodies in the education sector also have to report, including the governing bodies of voluntary aided and foundation schools, academy trusts, FE and HE institutions.

* Size requirement: employer must have had more than 49 FTE employees in at least 7 of the 12 months included in the reporting period (April to March) and at least one trade union representative during that time.

More detail on facility time reporting is available within the Trade Union Facility Time Reporting pages.

30th September REMINDER: Apprenticeship targets reporting deadline (public sector)

  Relevance: Public bodies with 250 or more staff (FE colleges and universities are out of scope) 

The next reporting deadline is 30th September 2021, covering the period from April 2020 to March 2021.

All bodies in scope are required to publish certain information annually on their progress towards meeting the public sector apprenticeship target (for a minimum of 2.3% apprenticeship starts per year).

Community and voluntary controlled schools are included in their local authority's target.

More information on the public sector targets and reporting requirement is available.

Reminder of Recent Changes

6th April 2021: Extension of IR35 to private sector plus some changes affecting all (delayed from April 2020)

  Relevance: All settings 

Legislation: The Finance Act 2020 (received royal assent on 22nd July 2020)

Changes to IR35 legislation (implemented in April 2017 in the public sector) were extended to medium and large organisations in other sectors from 6th April 2021 and have effect for contracts entered into on or after the implementation date or payments made in respect of services provided on or after the implementation date. There were also some minor adjustments to the rules that also affect public sector employers.

Private Sector Changes

The rules are intended to ensure that an individual who works like an employee, but through their own limited company, pays broadly the same Income Tax and National Insurance contributions as other employees. The change to the rules shifts responsibility for operating IR35 from the individual’s personal service company to the organisation that the person is supplying their services to.

In the private sector there is an exemption for small companies which can continue to apply the previous IR35 rules. The legislation lays out how this exemption is expected to operate but the definition of small company is in line with the existing statutory definition within the Companies Act 2006. Small companies will satisfy at least two of the following conditions:

  • Annual turnover not more than £10.2m;
  • Balance sheet total not more than £5.1m; and/or
  • Number of employees not more than 50.

Undertakings which are unincorporated are treated as ‘small’ if their turnover in the relevant financial year was not more than £10.2m. There are also rules around connected and associated companies.

Changes Affecting All Sectors

  • Organisations are required to provide a Status Determination Statement which confirms the IR35 decision and the reasons for it. The organisation will be liable for Income Tax, NICs and apprenticeship levy until it provides a valid Statement to the individual.
  • If the individual believes the IR35 decision to be incorrect, he/she may make representations to the organisation which then has 45 days to review the case and confirm the decision reached, issuing a new Statement if the decision is changed.
  • HMRC has the power to transfer Income Tax and NIC liability to another entity in the supply chain if it considers that the other person should have paid those liabilities.

Guidance and letter templates for the revised IR35 rules can be found in our dedicated IR35 area.

Last updated: 13th April 2021

4th/6th April 2021: Statutory rate increases

  Relevance: All settings 

From 4th April 2021, the flat weekly rate of statutory maternity, paternity, adoption, shared parental and parental bereavement pay increased from £151.20 to £151.97.

From 6th April 2021, the weekly rate for statutory sick pay increased from £95.85 to £96.35.

From 6th April 2021, the maximum amount of a week's pay for the purposes of calculating statutory redundancy pay increased from £538 to £544.

1st April 2021: National minimum wage rises

  Relevance: All settings 

The hourly rates of the national living wage and national minimum wage increased on 1st April 2021. The current and previous rates are as follows:

  Hourly rate until 31st March 2021 Current hourly rate (from 1st April 2021)
Workers aged 23+ yrs (25+ yrs until 01/04/21) £8.72 £8.91
Workers aged 21-22 yrs (21-24 yrs until 01/04/21) £8.20 £8.36
Workers aged 18-20 yrs £6.45 £6.56
Workers under 18 but over compulsory school age £4.55 £4.62
Apprentices under 19 years or 19+ but in the first year of apprenticeship £4.15 £4.30

As shown above, please note that the threshold for the national living wage was reduced from 1st April 2021. From that date it extends to workers aged 23 years and over (instead of 25 years and over).

1st January 2021: End of free movement and new immigration system operational

  Relevance: All settings 

Free movement for EU nationals ended on 31st December 2020 and, as of 1st January 2021, new immigration rules put EU/EEA workers and Swiss citizens on an equal footing with non-EU workers. Irish citizens are not affected and can continue to enter, live and work in the UK without obtaining permission.

As part of the end of free movement, a revised points-based immigration system for all foreign nationals has been introduced.

In December we published a briefing note on the implications of the Brexit transition period ending.

28th November 2020: New DBS filtering rules remove minor criminal convictions from records

  Relevance: All settings 

The filtering rules for Standard and Enhanced DBS checks changed on 28th November 2020, resulting from the Supreme Court judgment in the widely reported case of P and Others v SSHD & SSJ. Legislation has now been altered to reflect this ruling and, from 28th November, disclosure of criminal records was moved into line with the revised rules.

The legislation has amended the disclosure (filtering) rules that mandate which convictions and cautions must be disclosed for certain sensitive roles by removing disclosure for those roles of:

  • youth reprimands, warnings and cautions; and
  • all convictions where a person has more than one conviction.

Convictions which are for offences specified on a list of serious offences, which received a custodial sentence, or unspent convictions, will continue to be disclosed.

This means that job applicants and employees no longer have to declare the above and they will not show on DBS checks.

Last updated: 18th December 2020

4th November 2020: Public sector exit payments cap *DISAPPLIED FROM 12/02/2021*

  Relevance: Publicly-funded schools (inc. 16-19 academies) and NMSS, but not FE/sixth form college corporations 

Legislation: The Restriction of Public Sector Exit Payments Regulations 2020

The Small Business, Enterprise and Employment Act 2015 (as amended by the Enterprise Act 2016) provides the power for HM Treasury to make regulations implementing a £95,000 cap on exit payments in the public sector. Regulations came into force on 4th November 2020 but were subsequently disapplied from 12th February 2021, pending revocation. New proposals will be brought forward in due course.

Last updated: 16th February 2021