General election: employment watch – what might be on the cards if the Conservatives stay in power?

In light of the UK’s next general election taking place on 4 July 2024, we’re taking a look at some of the key promises relating to employment law made by the leading political parties.

Although most political parties have not yet released their manifestos, some parties have made recent announcements which give us an indication of their plans for employment law. Manifestos are likely to be published over the next week or so and once we have these, we will provide more detailed comments/analysis on some of the proposals and how these could impact employers.

Last week, we looked at Labour’s plan to extend equal pay protection to include disability and ethnicity. Although the Conservatives have not yet unveiled their detailed plans, recent action taken and subsequent announcements regarding proposed changes include various matters which could impact employers, such as:

Changing the Equality Act to define the protected characteristic of sex as ‘biological sex’.

The Equality Act protects against discrimination on grounds of ‘sex’. ‘Sex’ is not defined and in some aspects of the relevant pieces of legislation, ‘sex’ and ‘gender’ are used interchangeably. The Conservatives want to amend the definition to make it clear that ‘sex’ refers to ‘biological sex’. This could impact trans people, particularly those who have obtained a Gender Recognition Certificate.

In 2023, Kemi Badenoch MP (Secretary of State for Business, Energy and Industrial Strategy and Minister for Women and Equalities) asked the Equality and Human Rights Commission (‘EHRC’) for its advice on amending the definition of sex. The advice found that if sex was defined as ‘biological sex’ in the Equality Act, it would bring greater legal clarity in certain areas (such as pregnancy and maternity, ‘positive action’ taken by employers, and ‘occupational requirements’ imposed for certain jobs), however it would be more ambiguous/potentially disadvantageous in other areas (e.g. indirect and direct sex discrimination and equal pay protection).

The Liberal Democrats have criticised this announcement as stoking ‘phony culture war’.

Issuing a call for evidence on reforming Fit Notes.

The call for evidence is open until 8 July 2024. The consultation looks at reforming the Fit Note process so that ‘work and health professionals’ (rather than GPs) would assess in more detail whether an individual is able to do their job and refer them to further support to help them manage their condition and get back to work.

Consulting on changes to TUPE and EWCs

Further to its May 2023 paper which proposed a number of reforms on issues such as holiday pay, TUPE and non-compete clauses, the government is undertaking a further consultation on clarifications to TUPE and abolishing the legal framework for European Works Councils.

As part of its current consultation, the government proposes making changes to TUPE to clarify that:

• TUPE does not apply to workers; and
• An employment contract may only be transferred to one employer and may not be split between multiple employers.

With regards to ‘split contracts’, the consultation proposes amending TUPE to clarify that an employment contract can only transfer to one employer and can’t be split. Instead, the employers taking over the transferring service/business must agree which one of them is responsible for each employee’s contract. It is not clear how this will work if agreement cannot be reached.

Although the changes to TUPE will clarify employers’ obligations, in practice, split transfers and arguments over the transfer of limb (b) workers are not overly common. It will be interesting to see how the government intends to force incoming employers to agree which of them will take which employee, and how any disputes will be resolved.

Should you wish to discuss any of the issues raised in this article, please contact Robert Forsyth.