· Features

It's reel-to-reel red tape ahead

On 23 November 2011, business secretary Vince Cable announced plans to overhaul employment law. Where existing laws were perceived as a ‘barrier’ to business, he declared, he was “knocking down that barrier today”.

In the months that have followed, we have heard a series of similar declarations.

The Government's mantra has always been that it is cutting red tape and promoting economic growth. But do any of these measures really add up? We definitely have our doubts.

For example, maternity and paternity leave as we know it is set to be replaced in 2015 by shared parental leave. Under the new regime, 50 of the existing 52 possible weeks of maternity leave can be passed from the mother to the father. Either parent will be able to take leave in blocks of one week, interspersed with periods of work, and both parents will also be able to take leave at the same time. This is all laudable, but it is bound to mean more red tape, not less. Employers will have to verify how much leave their employee's partner (who is likely to be working for another organisation) has taken to determine how much leave their employee is entitled to. They will also have to manage cover for staff on parental leave who may return to work and go off on leave again repeatedly.

Similarly, the existing system for requesting flexible leave arrangements is also to be replaced in 2014 with a more general - and nebulous - duty on employers to be 'reasonable' when responding to such requests. This change is likely to lead to less certainty and therefore increased litigation against employers who are accused of being unreasonable.

The Government is also consulting on repealing the 'service provision change' test, which was introduced with the 2006 TUPE Regulations. This test was brought in with the aim of making it easier for employers to assess whether TUPE applies in outsourcing situations. The Government views the 2006 TUPE Regulations as having had the effect of 'gold plating' European law. However, removing the service provision change test now is likely to take us back to the pre-2006 position, where confusion prevailed.

While the suggestion of cutting red tape and promoting economic growth makes for good headlines, the reality is somewhat different. Few employers believe that UK employment regulation is a barrier to growth, while the Government is prevented by the EU from making some of the changes that employers might really like to see.

Moves that merely tinker round the edges present employers with time and cost burdens that will have no real positive impact for business. Perhaps it would be better for the Government to let sleeping dogs lie?

Virginia Allen is senior associate at technology and digital media law firm Kemp Little