UK Employment Law Coffee Break | Consultation on reforms published, fertility treatment and pregnancy loss and our latest GDPR for HR update

Consultation on proposed reforms to working time and TUPE

Following the government's announcement that it would be consulting on changes to the Working Time Regulations and Transfer of Undertakings (Protection of Employment) Regulations (TUPE), it has now published its consultation on these proposals, as well as setting out its position on other regulations derived from EU employment law. The consultation closes on 7 July.  

In addition to our summary last week, particular points of note include:

• As part of the proposals to merge the current four weeks and 1.6 weeks of statutory holiday entitlement into one, the government has confirmed that it is seeking to provide more clarity around calculating a worker's leave in the first year of employment and the rate at which holiday is paid. On this second point, the consultation document notes that what is considered "normal remuneration" is not clearly defined in the WTR or European and domestic case law and that it "would be significantly challenging to write into legislation". The government is therefore seeking views from employers and workers on how holiday pay is currently calculated and how they think it should be defined.
• The proposal to permit rolled-up holiday pay is a reflection of the fact that "the labour market has changed significantly" since the WTR were introduced with the consultation stating that "the number of workers who have irregular hours" has increased "to more than 4.5 million" due to an increase in atypical work and the expansion of the gig economy. This means that the legislation governing holiday pay and entitlement "does not fully align with the current realities experienced by employers and workers". The government has however stated that it is proposing to introduce rolled-up holiday pay as "an option" for all workers, that is including those who have "regular hours".
• On TUPE, the consultation document makes clear that the government is proposing two separate changes to the current requirement for businesses (which are not micro businesses) to arrange elections for employee representatives if they are not already in place and consult with these bodies. The government is proposing to permit employers to consult directly with employees (if there are no existing employee representatives in place) to: small businesses with fewer than 50 employees; and also to all businesses of any size involved in a transfer where fewer than 10 employees are transferring.

The government has taken the opportunity in the consultation document to confirm the revocation of regulations related to posted workers following the UK's exit from the EU, meaning that the concept of a "posted worker" does not apply as it did during the UK's period of membership.

Subject to the reforms proposed in the consultation on the WTR and TUPE, we are not anticipating any immediate changes to the position on part-time, fixed-term and agency workers. However, interestingly, a question has been included in the consultation on TUPE asking for experiences on the TUPE regulations beyond the changes proposed and "how if at all do you think they could be improved". Businesses should not therefore rule out the potential for additional reforms down the line.  

Supporting employees undergoing fertility treatment and pregnancy loss in the workplace

A new report, from charity Pregnant Then Screwed in partnership with campaigning organisation Women In Data, has revealed that one in four women are unfairly treated at work after telling their boss that they are undergoing fertility treatment. Almost one-third of women who have experienced pregnancy loss (29%) told their employer, and one in five (22%) of these women reported unfair treatment following sharing their loss. In contrast, just 6% of partners who told their boss about their loss faced any negative treatment.

This new report highlights the challenges faced by women with fertility difficulties and the lack of confidence many have in their employer supporting them through their experience. Almost half (42%) of women going through fertility treatment told their boss, but of those, one in four (24%) did not receive any support from their employer, and 24% said they experienced unfair treatment as a result.

With an estimated one in six people around the world experiencing infertility, there will be many employees in need of support and with diversity and inclusion still firmly in the spotlight, considering the support that can be provided to employees through miscarriage, IVF and other assisted reproduction treatments should be high on the agenda.

Proposed legislative support for those undergoing fertility treatment

Employees do not currently have a statutory right to take time off, paid or unpaid, for fertility treatment such as IVF. A woman undergoing IVF will be deemed pregnant only from the point of the point of implantation of fertilised ova; at which point the statutory entitlement to take time off for antenatal appointments will apply and an employee will be protected from any pregnancy and maternity related discrimination.

At earlier stages of the process, absent any company-specific policy, employees are left to take time off as holiday or sickness absence in order to attend fertility treatment appointments. As women, as a general rule, usually require more treatment than men for fertility, employers who take action against an employee for taking time off for fertility treatment risk an indirect sex discrimination claim if this action cannot be justified.

An employer also remains at risk of discrimination claims on grounds such as sex or sexual orientation where an employee can show less favourable treatment with an appropriate comparator, for example in the way the employer responds to any requests for time off, treatment under any sickness absence policy and any request to work more flexibly.

The Fertility Treatment (Employment Rights) Bill has had its first reading in the House of Commons and seeks to give employees the legal right to have time off work for appointments related to fertility treatments. This is a private members' bill which has not received express government support, so how far it proceeds through the parliamentary process remains to be seen. However, it has thrown a spotlight on the gap in employment protection for individuals looking at IVF treatment.

Pending any legislative reform, some guidance for employers is provided in the Equality and Human Rights Commission Code of Practice (which is not legally binding but may be taken into consideration by Employment Tribunals). It states that "it is good practice for employers to treat sympathetically any request for time off for IVF or other fertility treatment, and consider adopting a procedure to cover this situation" which should include "designating a member of staff whom they can inform on a confidential basis that they are undergoing treatment".

Proposed legislative protection for those who miscarry

While stillbirth and neonatal loss attract statutory paid leave entitlements, miscarriages that take place before 24 weeks and ectopic pregnancies do not give rise to statutory maternity, paternity or parental bereavement leave. Employers who want to provide specific support to employees beyond treating an absence as a sickness absence must therefore make their own provision for how they will support employees.

The Miscarriage Leave Bill, a private members' bill seeks to make provision for paid leave for people who have experienced miscarriage. It is currently awaiting its second reading in the House of Commons but is now "not expected to be taken".

Acas guidance recommends that an employer should "consider offering time off at what can be an extremely difficult time both physically and emotionally" and reminds employers that "discussing a miscarriage can be very upsetting. Employers should treat anyone affected by miscarriage with care and in a way that acknowledges their loss. The employer should also support them in the same way they would support someone after a death".

Employers should also note that a period of sickness absence in these circumstances is likely to be considered a "pregnancy-related illness"; pregnancy and maternity is a protected characteristic under the Equality Act 2010 and an employee put at a disadvantage and treated less favourably because of a pregnancy-related illness or related time off could bring a successful discrimination claim. It may also be appropriate to consider whether any short-term adjustments should be made to an employee's working practices to provide support on their return to work.

What can employers be doing now?

The latest report from Pregnant Then Screwed highlights the ongoing issues employees may face when undergoing fertility treatment or dealing with pregnancy loss. Joeli Brearley, CEO and Founder of Pregnant Then Screwed, highlights in the latest report that "the lasting impact on… mental health can be devastating and costly to both businesses and to staff wellbeing. It's in the best interests of both employers and employees to get this right. Starting from now".  

Reflecting diverse family structures, employers are increasingly considering what support they can provide to their employees: whether through introducing a policy on fertility leave, forms of financial support for IVF and other assisted reproduction treatments through an employee benefits programme and/or offering support on a case by case basis.

Care will need to be taken that any policies adopted or benefits provided are inclusive and applied consistently to avoid inadvertent discrimination claims. In all cases, employees undergoing IVF or other assisted reproduction treatments should be treated sensitively and confidentiality maintained.  

Likewise, employers are also increasingly looking to introduce stillbirth and neonatal loss and pregnancy loss policies setting out what support is available for employees impacted and ensuring that at the time they need it, they have certainty around the help that is available to them from their employer.

Many employers are also exploring support mechanisms, such as internal staff networks, educating managers and employee assistance programmes.

Our latest GDPR for HR newsletter

Please view our latest GDPR for HR newsletter which this month looks, among other issues, at new guidance on artificial intelligence and data protection from the UK Information Commissioner's Office. If you missed our latest Eating for Compliance webinar focusing on data subject access requests (Tuesday 2 May 2023), you can still access the link to listen to the recording.

If you have any questions arising from our newsletter or webinar, please contact partner, Olivia Sinfield, who heads up our GDPR for HR team.