Improved employee rights reflect our changing values

As the firm celebrates its 25th anniversary, Phoebe Gogarty from our employment team reflects on the changes to employment law within that period.

Employment law in England and Wales has seen significant progression in the last 25 years, particularly, the rights of employees have greatly improved. The changes are very much reflective of how the law has been adapted over time in response to societal shifts, technological advances and economic challenges.

In comparison to 1998 when Industrial Tribunals were rebranded as Employment Tribunals, the modern-day employee now benefits from an array of enhanced protections. Back then, basic rights such as the minimum wage and paid holiday entitlements were only just beginning to take shape.

Employees are now able to enjoy much-improved working conditions by way of increases to the National Minimum Wage, provisions for statutory sick pay, maternity and paternity leave, and enhanced protection against unfair dismissal.

Family-friendly rights

Family-friendly rights have vastly improved from the position we were in 25 years ago. At that time, the Maternity and Parental Leave Regulations 1999 provided for an increase in the period of ordinary maternity leave from 14 to 18 weeks, and 29 weeks of additional maternity leave if the employee had at least a year’s service. However, only the period of ordinary leave was paid.

As for Paternity Leave, this was not introduced until April 2003 under the Paternity and Adoption Leave was introduced and set at a modest £3.60 Regulations 2002. Prior to this, employees had no statutory right to take paid paternity leave which, by contemporary standards, seems outrageous! Even more so when considering that many parents now opt to exercise their right to Shared Parental Leave (SPL) since its introduction in April 2015. SPL provides greater flexibility for families to share their entitlement to paid leave as opposed to the traditional structure of maternity and paternity leave.

Working hours and flexibility

Additionally, working families can also benefit from the status quo of working more flexibly, widely labelled as the ‘new-normal’ since the pandemic – (COVID-19 had to get a mention!)

Before the pandemic, working hours were more rigid as most employees had fixed working patterns and the concept of remote work or flexible hours was relatively rare. Nowadays, many more employees make use of their right to request flexible working arrangements, subject to meeting certain qualifying criteria.

Since its introduction in 2003, when it applied only to parents and carers, it was expanded in 2014 to all employees upon reaching 26 weeks’ service.

Hybrid-working was under 2% in the 90s, compared to 62% in 2022. This year, the Employee Relations (Flexible Working) Act 2023 received Royal Assent which will, upon its introduction in 2024, allow up to 2 requests per 12 months, instead of the current allowance of 1. Employees will no longer be required to suggest how to mitigate the impact of their request. This will fall to the employer to consider, who must provide their decision to the employee within 2 months, not the current 3.

Flexible working requests are expected to become a ‘day-one’ right, although the above act will not reduce the 26-week eligibility criteria; secondary legislation will be required to implement this change.

The pandemic accelerated the adoption of remote and flexible working arrangements. What was once a necessity has become a preferred choice for many. In order to meet the demands of the modern workforce, it has become commonplace for employers to offer roles which allow for some form of flexibility whether by way of hybrid working or flexi-time.

During the last 25 years, we have seen a rise in the use of zero-hours contracts. Those working under such contracts in the late 90s were not afforded much protection due to the lack of regulations, allowing employers considerable flexibility in how they managed their workforce.

It wasn’t acknowledged until the early 2010s that the resultant vulnerability caused by this power imbalance of limited rights needed to be scrutinised. What followed ensured robust change to the rights afforded to workers under zero-hours contracts.

The tighter regulations included a ban on exclusivity clauses in 2015, allowing workers the freedom to undertake other work. Furthermore, the introduction of the Good Work Plan in 2020 aimed to improve rights further by providing the right to a written statement of terms from day one of employment and the right to receive a payslip itemising hours worked.

Discrimination and diversity

25 years ago, employees had limited protections under legislation such as the Disability Discrimination Act 1995, the Sex Discrimination Act 1975 and the Race Relations (Amendment) Act 1976. There were many additions throughout the2000s, including the introduction of the Sexual Orientation Regulations 2003, the Gender Recognition Act 2004 and the Employment Equality (Age) Regulations 2006. Despite these further introductions, they were not often enforced as rigorously as they are today.

The introduction of the Equality Act 2010 consolidated those existing laws, and enhanced the protections against discrimination on the grounds of age, race, disability, gender reassignment, sex, sexual orientation, maternity, marriage or civil partnership and religion; collectively known as ‘protected characteristics’.

Gig economy and worker status

What is known as the ‘gig economy’ was in its infancy 25 years ago, and the classification of workers was often ambiguous. Traditional employment relationships were more common, and the concept of gig work or self-employment was not as prevalent.

Over the last two decades, the number of gig economy workers has accelerated, in part as a result of digital apps bringing us the convenience of instantly connecting with services at the press of a button.

With this shift in how we engage such services came the challenge for employers of how to properly classify the employment status of those individuals.

KEY CASE LAW…

Uber Drivers are classed as Workers, but Deliveroo Riders are Self-Employed we have seen some high-profile legal cases in this area, particularly in 2021 concerning Uber and Deliveroo, in which the courts clarified the complexities in each case and the resultant judgements were instrumental for thousands of people. Helpfully, the factors relied on for those judgements has set clearer direction for employers to avoid the same pitfalls.

Conclusion

The transformation of employment law over the past 25 years reflects our changing values and commitment to ensuring a fair and inclusive workplace. While many of these changes have bolstered employee rights and protections, they have also placed increased responsibilities on employers. The evolving legal landscape aims to create a more equitable and secure work environment for all and will continue to adapt to the ever-changing nature of work.

If you would like to discuss any of the issues raised in this article, please contact Phoebe Gogarty (pgg@swinburnemaddison.co.uk), or call 0191 384 2441. 

This article was first published in our client magazine Prism, which for general information only and can be found online by clicking here.  They do not, and are not intended to, constitute legal or professional advice. The law may have changed since this magazine was published and we would always recommend that you seek specific advice on any particular legal issue. I

Written by Swinburne Maddison

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