Following Labour’s election success last week, Toby Pochron outlines the EDI legislation the party has said it intends to introduce 

Protection in pregnancy

Labour plans to extend the period of protection from pregnancy discrimination, making it unlawful to dismiss a pregnant individual for up to six months from when they return from maternity leave, except in specific circumstances. We don't know what those specific circumstances are but this means there are likely to be some exclusions.

Menopause plans

Larger employers – we assume those with 250 employees or more – will be required to have a documented menopause plan in place.

Ethnicity and disability pay gap reporting

It will be mandatory for employers with more than 250 employees to monitor and report on ethnicity and disability pay. This will mirror the current gender pay gap reporting rules. Employers will need to publish an action plan outlining how they will close any pay gap.

Extending time limits in employment tribunal claims

Currently, there are strict time limits for making a claim to an employment tribunal. In most cases, an employee has three months minus one day from the date the problem at work occurred. Labour said it would look at extending the time to six months, based on the view that three months is too short a period for discrimination complaints, such as harassment. 

This could mean that businesses go from a three-month limitation period, plus any extension of time through Acas early conciliation, to a six-month limitation period plus any extension of time through Acas early conciliation. 

Socioeconomic disadvantage duty

The Equality Act already includes a socioeconomic duty on the public sector requiring public bodies to adopt transparent and effective measures to address the inequalities that result from differences in occupation, education, place of residence or social class. This hasn’t been enacted in England and Wales: Labour said it would do so. 

Non-disclosure agreements

Time seems to be up for very broad, very blanket, very onerous non-disclosure agreement (NDA) terms – there are probably going to be some changes to such agreements. Following recent legislation, NDAs are prohibited in higher education and, after a consultation in July 2019, the last government committed to legislate when parliamentary time allowed.

There is already guidance that solicitors should be following to exclude conditions in an employment contract, or in a settlement agreement, that could prevent an employee from making a disclosure to the police, to regulated health and care professionals or to legal professionals. The intention is to introduce legislation to back that up. 

It is anticipated that there will be a new right for an employee to bring a claim for compensation in the employment tribunal where a confidentiality clause in a written statement does not meet the new drafting requirements. Confidentiality clauses in settlement agreements that don't follow the legislative requirements will be void in their entirety. This won't apply retrospectively but, if you get the drafting wrong in a settlement agreement, the confidentiality won't be binding, although other terms will remain. 

Although Labour set these out as intentions, we don’t know which of these laws will make it through the legislative process. Time will tell.

by Toby Pochron