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Legislation Tracker

Legislation Tracker

01/10/2021

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: Introduction of carer's leave

  Relevance: All settings 

Legislation: TBC

The government consulted in 2020 on proposals to give employees who are carers a week of unpaid leave each year for the purpose of undertaking their caring responsibilities. The response to consultation was published on 23rd September 2021.

The right will be introduced "when Parliamentary time allows".

Eligible carers will be entitled to the right from day one of employment with eligibility depending on the carer's relationship with the individual requiring care. The scope of eligibility is very similar to that which is used to determine the right to time off for dependants. It covers:

  • A spouse / civil partner
  • A child
  • A parent
  • A person living in the same household as the employee, other than as an employee, tenant, lodger or boarder
  • Someone else who reasonably relies on the employee for care.

The person being cared for must also have a long-term care need, subject to certain exemptions. Employees will not be required to provide evidence of their eligibility or of the care needs of the individual.

It will be possible to take the leave flexibly in individual days or half days, not just in blocks, but the employee must give notice of at least twice the length of the time being requested plus one day (so the notice required to take one day's carer's leave would be three days, for example). There will be a limited right to postpone the leave in exceptional circumstances to avoid disruption to the business.

We will provide more detailed guidance when draft legislation is published.

Last updated: 30th September 2021

Date TBC: Consultation on changes to flexible working rights

  Relevance: All settings 

The government has commenced consultation on extending flexible working rights. Consultation closes on 1st December 2021.

The consultation sets out various considerations to support the objective of 'making flexible working the default'. There are a couple of specific proposals, as follows:

  • Making the right to request flexible working a 'day one' right;
  • Requiring the employer to show that they have considered alternative working arrangements when rejecting a statutory request for flexible working.

The consultation is also looking at:

  • Reviewing whether the eight business reasons for refusing a request all remain valid;
  • Considering whether employees should be able to make more than one statutory flexible working request in a year and whether the three-month deadline for responding to requests still strikes a fair balance;
  • How to encourage employees to make more use of the right to request a temporary flexible working arrangement.

In addition to the proposals above, the consultation document looks at other steps aimed at securing a general cultural shift towards more 'flexible working friendly' workplaces.

We will provide a further update in 2022 when the outcome of consultation is published.

Last updated: 1st October 2021

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).

There have been no further updates on when, or whether, these proposals will be taken forwards. We will publish further advice when more is known.

Last updated: 1st October 2021

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.

It was announced in December 2020 that these measures would be contained in the "forthcoming Employment Bill". The Employment Bill was not subsequently announced in the Queen's speech in May 2021 and therefore the future of these proposed changes currently remains uncertain.

Last updated: 1st October 2021

Date TBC: Introduction of neonatal leave and pay

  Relevance: All settings 

Legislation: TBC

The government confirmed its response in March 2020 to the consultation on neonatal leave and pay conducted in 2019. The stated intention in December 2020 was to introduce a statutory leave entitlement for parents of babies in neonatal care (and pay, subject to qualifying conditions) in "the forthcoming Employment Bill". The Employment Bill was not subsequently announced in the Queen's speech in May 2021 and therefore the future of this proposal currently remains uncertain.

Last updated: 1st October 2021

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.

We do not yet know when these proposals will be taken forwards.

Last updated: 1st October 2021

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.

We do not yet know when this proposal will be taken forwards.

Last updated: 1st October 2021

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 reporting arrangements returned 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 most recent reporting deadline was 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.