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Employment Law General Update – November 2023

  • Employment,

  • 22nd November 2023

Employment Law

This month’s employment law updates cover various critical issues. The Work and Pensions Committee seeks input on statutory sick pay, while the Government has published its response to the EU employment law consultations. The Home Office updates illegal working penalty guidelines, and we have Government guidance on the handling labour unions before strikes. The TUC’s data on the disability pay gap underscores the importance of inclusivity, and a WoRC report examines systemic factors in the exploitation of migrant workers. Stay informed for compliance in this evolving employment landscape.

  • Sick Pay: Work and Pensions Committee publishes call for evidence on statutory sick pay
  • Retained EU Employment Law: Government response to consultation and new draft regulations available
  • Immigration: Home Office publishes updated code of practice on illegal working penalties
  • Trade Unions: Government publishes guidance on issuing work notices ahead of strike action
  • Disability: TUC publishes latest data on disability pay gap
  • Immigration: WoRC report looks at systemic drivers of UK migrant worker exploitation

 Sick Pay: Work and Pensions Committee publishes call for evidence on statutory sick pay

The Work and Pensions Committee has issued a call for evidence on statutory sick pay (SSP), requesting the public views and ability to submit evidence until Friday, 8 December 2023. The Work and Pensions Select Committee calls for this inquiry to assess the existing ‘effectiveness of SSP in supporting claimants and if SSP should be reformed to better enable a recipient’s recovery and return to work’.

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Retained EU Employment Law: Government response to consultation and new draft regulations available

Retained EU Employment Law consultation response

The government has officially released its response to the ‘Retained EU Employment Law’ consultation, addressing proposed reforms within the Working Time Regulations 1998 (WTR) related to annual leave, holiday pay calculations, and record-keeping requirements. Additionally, it responded to the consultation concerning the annual leave entitlement calculation for part-year and irregular hours workers in light of the Supreme Court’s Harpur Trust v Brazel 2022 ICR 1380 decision.

The government has proposed the introduction of a ‘rolled-up’ holiday pay system for irregular hours and part-year workers and allow for an annual leave accrual method of 12.07% of hours worked for these groups. This means that instead of receiving a separate payment when taking annual leave, certain workers, specifically those with irregular hours or part-year employment (which may include agency workers), will get an extra amount added to their regular pay.

However, the government has decided not to proceed with the idea of creating a single annual leave entitlement that combines the ‘basic’ and ‘additional’ annual leave entitlements into a single 5.6-week entitlement (i.e. four weeks required by EU law and the 1.6 weeks mandated by the Working Time Regulations). Instead, they want to maintain two separate “pots” of annual leave with two different pay rates. This means that workers will still receive four weeks of leave at their normal pay rate and 1.6 weeks at a basic pay rate.

Additionally, the government plans to pass laws to make it clearer what should be included in the calculation of normal remuneration for holiday pay. They are also considering more significant changes to how holiday pay rates are determined.

In response to the Harpur Trust ruling, the initial proposal suggested using a 52-week reference period to calculate annual leave entitlement. However, many people raised concerns about the extra work this would create and the challenges it posed for workers whose hours changed from year to year or for those in their first year of employment.

To keep things simpler, the government has opted for a different approach. They will use an accrual method to figure out annual leave entitlement, where workers get 12.07% of the hours they’ve worked in a specific pay period. This method was commonly used before the Harpur Trust decision and better reflects the hours a worker has actually worked in the current year. For other workers in their first year of employment, things will remain the same. They will continue to accrue annual leave by receiving 1/12th of their statutory entitlement on the first day of each month and adjusting it accordingly.

The response also mentions that the government will maintain certain EU case laws to protect workers’ rights regarding carrying over unused annual leave when they can’t take it due to maternity, family-related leave, or being sick. They will also introduce a way for irregular hours and part-year workers to accrue annual leave when they’ve had periods of maternity, family-related leave, or sickness.

Additionally, the government will proceed with changes to record-keeping requirements in the Working Time Regulations (WTR). This change clarifies that businesses do not have to keep daily records of how many hours each worker works. This clarification aims to address concerns that a previous ruling by the European Court of Justice might have required employers to track the exact daily hours worked by each employee, rather than maintaining adequate and proportionate records based on the workplace and working patterns.

Regarding TUPE (Transfer of Undertakings), the government will move forward with its proposal to simplify consultation obligations during a transfer. Small businesses (with fewer than 50 employees) will be allowed to directly consult with employees if there are no existing employee representatives, avoiding the need to organize elections for new representatives. Additionally, businesses of any size can directly consult with employees (if there are no existing representatives) when a transfer involves fewer than ten employees.Top of Form

Draft Regulations

The Department of Business and Trade has published the draft Equality Act 2010 (Amendment) Regulations 2023. The draft SI restates some protections in relation to pregnancy, maternity and breastfeeding, indirect discrimination, access to employment and occupation, equal pay and the definition of disability which would otherwise be lost from 1 January 2024 under the Retained EU Law (Revocation and Reform) Act 2023 (REUL(RR)A 2023).

These draft regulations are proposed to reproduce in domestic law certain interpretive effects of retained EU law which, under REUL(RR)A 2023, will cease to apply to the UK statute book after the end of 2023. This will mean that, in the areas covered by this instrument, the law will continue to have the same effect after the end of 2023 as it did before. They are due to come into force on 1 January 2024.

The draft Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 will amend the Working Time Regulations 1998 (in relation to record-keeping, paid holiday for irregular hours workers and part-year workers, normal pay, and the carrying forward of paid holiday) and the Transfer of Undertakings (Protection of Employment) Regulations 2006 (in relation to information and consultation obligations on small businesses for transfers on or after 1 July 2024) and revoke the European Cooperative Society (Involvement of Employees) Regulations 2006. They are due to come into force on 1 January 2024.

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Immigration: Home Office publishes updated code of practice on illegal working penalties

The Home Office has published a new draft Code of Practice on the civil penalty schemes for employers (preventing illegal working). The draft is an update to the version published in March 2022 and will be the sixth version of the code. This latest version of the code will be applied to all right to work checks from 22 January 2024 including where a follow-up check is required to maintain a statutory excuse, even if the initial check was undertaken using a previous version of the code which was current at the time.

The draft code has been amended further to the issue of draft Statutory Instruments (SIs) which will raise the starting point for penalties to £45,000 for a breach (if there are no previous breaches in the last three years) and £60,000 for repeated breaches. The draft codes will come into force at the same time as the related SIs, which are: (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2023 and the Immigration (Restrictions on Employment and Residential Accommodation) (Codes of Practice) (Amendment) Order 2023. These are each stated to come into force on 22 January 2024, or, if later, on the twenty-first day after the day on which it is made. However, the code assumes 22 January 2024 as a commencement date.

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Trade Unions: Government publishes guidance on issuing work notices ahead of strike action

The Department of Business and Trade has published guidance for employers, trade unions and workers on issuing work notices ahead of strike action. Work notices, which were introduced under the Strikes (Minimum Service Levels) Act 2023, allow employers to require a workforce to meet minimum service levels for an upcoming strike period where the trade union has given notice to the employer of the strike and the employer provides a service covered by minimum service level regulations.

The new guidance is designed to be read alongside the government’s range of guidance on industrial action which can be found here.

The guidance covers:

  • the purpose of a work notice and the steps for preparing it;
  • considerations when preparing a work notice;
  • considerations upon deciding to issue a work notice;
  • consulting with trade unions;
  • guidance on producing a work notice;
  • guidance on notifying workers of a notice;
  • duties on workers and trade unions following issue of a work notice;
  • data protection issues.

The full guidance can be found here.

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Disability: TUC publishes latest data on disability pay gap

The Trade Union Congress (TUC) has published new analysis [TUC slams “zero progr<a id=”back”></a>ess” on disability pay gap in last decade | TUC] of the pay gap between non-disabled and disabled workers. According to data from the TUC, the pay gap is currently higher than it was 10 years ago, with non-disabled workers earning approximately 14.6% more than disabled workers.

The key findings of the analysis include:

  • the pay gap is only marginally lower than it was when the TUC launched disability Pay Gap Day in 2016/17;
  • disabled women face the biggest pay penalty with non-disabled men earning an average of 30% more;
  • the industry with the biggest pay gap is financial and industrial services which currently stands at 33.2%;
  • disabled workers are twice as likely to be unemployed than non-disabled workers;
  • one in 10 BME disabled workers are unemployed compared to nearly one in 40 white non-disabled workers;
  • disabled workers are more likely to be on zero-hours contracts than non-disabled workers.

The TUC has called for action from the government to put an end to discrimination against disabled workers in the labour market and has backed Labour’s New Deal for Working People.

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Immigration: WoRC report looks at systemic drivers of UK migrant worker exploitation

The charity Work Rights Centre (WoRC) has published a report which looks at what lies behind increasing reports of migrant worker exploitation in the UK, particularly in certain sectors such as health and care. Drawing on 40 case studies, interviews with caseworkers, and policy analysis, the report identifies the post-Brexit work sponsorship system and piecemeal/weak labour enforcement as two key systemic drivers. It makes a number of recommendations, including reforms to the work sponsorship system (replacing employer sponsorship entirely, or alternatively a range of reforms to the sponsorship system to facilitate protection of sponsored migrants against exploitation), increasing protections for all workers (including establishing a Single Enforcement Body for all labour rights, giving protection against unfair dismissal from the first day of employment and instituting secure reporting of exploitative practices), and implementing a migrant worker welfare strategy (including the creation of an independent Migrant Commissioner role).

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

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The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.

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Employment Law General Update – July 2022

  • Employment,

  • 27th July 2022

Employment Law

This month’s news covers health at work with the consideration of the introduction of a maximum limit to workplace temperatures and guidance on the new fit notes. We also have an analysis of recent gender pay gap reporting, a report on the low rates of sustainable disability initiatives at FTSE 100 companies, draft regulations for banning exclusivity clauses in contracts and new ACAS guidance about workplace discrimination.

  • Health at Work: MPs call for maximum limit to workplace temperatures
  • Health at Work: DWP publishes fit note guidance for healthcare professionals
  • Gender Pay Gap: New analysis shows more companies reporting an increase in their average gender pay gap
  • Diversity: Less than 40% of FTSE 100 companies have sustainable disability initiatives
  • Contracts: Draft regulations laid extending ban on exclusivity clauses in employment contracts to low-income workers
  • ACAS Advice: ACAS publishes new guidance on asking and answering questions about workplace discrimination

Health at Work: MPs call for maximum limit to workplace temperatures

An early day motion (EDM) which calls on the government to introduce legislation to ensure employers maintain reasonable temperatures in the workplace has been signed by 38 MPs. The EDM calls for legislation to enforce a maximum temperature of 30 degrees Celsius, or 27 degrees Celsius for workers doing strenuous work and to require employers to introduce effective control measures, such as installing ventilation or moving staff away from windows and heat sources. The issue of maximum workplace temperatures, which arises from time to time, was previously raised as an EDM in 2013.

The Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004) requires employers to ensure that temperatures in all workplaces inside buildings are reasonable. While an Approved Code of Practice sets a limit on minimum workplace temperatures of 16 degrees (or 13 degrees if the work involves severe physical effort), there is no limit on the maximum temperature. See what the Health and Safety Executive says about the law here.

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Health at Work: DWP publishes fit note guidance for healthcare professionals

On 1 July 2022, the Department for Work and Pensions (DWP) published Getting the most out of the fit note: guidance for healthcare professionals. The publication follows the expansion of the category of people who can sign fit notes for the purposes of SSP and social security claims and the earlier removal of the requirement for fit notes to be signed in ink. There will be a transitional period during which both the 2017 and 2022 versions of the fit note will be legally valid while relevant IT systems are updated and stocks of paper fit notes in hospitals are replaced.

The guidance has been issued alongside the publication of non-statutory guidance on who can issue fit notes and a training package on e-learning for healthcare. The resources are intended to be used together to support eligible healthcare professionals in ensuring they have the expertise and knowledge to certify and issue fit notes. The guidance reiterates that an assessment is about whether a patient is fit for work in general and not job-specific. It also recognises that incomplete fit notes can make it difficult for employers to support a patient and cause delays to a patient’s return to work.

Information is provided on the factors that should be considered when assessing fitness for work, as well as information on how to discuss a patient’s beliefs about health and work if they are reluctant to return to work. In addition, there is information on how the free text section of the note should be completed, including the importance of giving practical advice to employers. In this section, it is noted that the only reference to a patient’s current job should be in the context of possible workplace adaptations or if the job may be affecting their health. Towards the end of the guidance, there are several case studies and an FAQ section. The FAQ section highlights that a medical professional’s advice is not binding on an employer, and it is for an employer to determine whether to accept the advice.

The guidance for employers and line managers and employees has also been updated to reflect the expanded category of people who can sign fit notes.

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Gender Pay Gap: New analysis shows more companies reporting an increase in their average gender pay gap

PwC analysis of gender pay gap data has found that of the companies that disclosed their data this year 43% reported an increase in their average gender pay gap (up from 41% the year before). A decrease was reported by 53% of companies and no change was reported by the remaining 4%. 1,826 more companies reported their gender pay gap details this year.

The analysis shows that only small changes, of no more than plus or minus 5%, have been made to most companies’ pay gaps. This suggests that “significant change may take a long time” as organisations “continue to struggle with making impactful changes to the gap“.

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Diversity: Less than 40% of FTSE 100 companies have sustainable disability initiatives

A recent study by Agility in Mind has found that only 37% of FTSE 100 companies have sustainable disability initiatives in place and just 4% have neurodiversity initiatives. This is despite 99% of FTSE 100 companies having inclusive mission statements. Of the 250 business leaders who were polled as part of the research, 16% described their neurodiversity initiatives as “highly effective” compared to 26% of those who described their race or gender equality initiatives in the same way.

Separately, a TUC-commissioned survey of approximately 1,000 HR managers across different workplaces has found that 21% of workplaces do not have specific support policies for LGBT staff and only 25% have a policy setting out support for trans and non-binary staff.

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Contracts: Draft regulations laid extending ban on exclusivity clauses in employment contracts to low-income workers

Draft regulations have been laid before Parliament which will prohibit exclusivity clauses in the employment contracts of workers whose earnings are on, or less than, the lower earnings limit (currently £123 a week). The draft regulations follow a government consultation on extending to other low earners the ban on exclusivity clauses which was introduced in 2015 to zero-hours workers’ contracts.

The draft regulations largely mirror the rights of zero-hours workers set out in section 27A of the Employment Rights Act 1996 and the Exclusivity Terms in Zero Hours Contracts (Redress) Regulations (SI 2015/2021). They will make unenforceable any contractual term which prohibits a worker from doing work or performing services under another contract or arrangement, or which prohibits a worker from doing so without their employer’s consent. Where they breach an exclusivity clause in their contract, employees will be protected from unfair dismissal and workers will be protected from detriment. The new unfair dismissal protection will have no qualifying period. Where an employment tribunal finds that a worker has suffered a detriment, it may make a declaration and award compensation it considers just and equitable up to an amount equal to the unfair dismissal basic and compensatory award.

The draft regulations will come into force 28 days after the day on which they are made and apply to England, Scotland and Wales.

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ACAS Advice: ACAS publishes new guidance on asking and answering questions about workplace discrimination

Following the repeal of the statutory questionnaire procedure in 2014, ACAS published non-statutory guidance, Asking and responding to questions of discrimination in the workplace to assist employees and employers in asking and responding to discrimination questions. That guidance was subsequently withdrawn.

ACAS has now published new information on its website on asking and answering questions about discrimination at work. The guidance sets out suggested steps for an employee who believes that they may have been discriminated against in the workplace, guidance on the information they should provide in writing to their employer and the types of questions they could ask their employer in order to help establish whether discrimination has taken place. The guidance also explains how employers should consider and respond to employees’ questions concerning workplace discrimination, and what might or might not amount to unlawful discrimination. An example statement and questions concerning potential discrimination to an employer and an example employer’s response are also provided.

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

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The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.

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Employment News – April 2022

  • Employment,

  • 27th April 2022

Key personal Employment Law

This month the news is full of diversity and equality – calls to support and engage on a wide range of matters such as neurodiversity, LGBTQ+ and race and ethnicity.  There is also a focus on health – with updates on fit notes to calls for action on mental health and menopause.

  • Diversity: Neurodiversity in Business forum launched to support neurodiverse employees
  • Diversity & Equality: Government’s LGBT+ Business Champion issues call to engage
  • Equality: Government publishes response to Commission on Race and Ethnic Disparities report
  • Health: Fit notes may be issued digitally without a wet-ink signature from 6 April 2022
  • Mental Health: DHSC publishes discussion paper and call for evidence  
  • Menopause: Workplace pledge signed by over 600 employers

Diversity: Neurodiversity in Business forum launched to support neurodiverse employees

On 21 March 2022, Neurodiversity in Business (NiB) was launched at the Houses of Parliament to support neurodiverse employees in the workplace. Between 15% and 20% of the population are estimated to be neurodivergent. Dan Harris, Chief executive of NiB, states that although employers increasingly recognise the benefits of a neurodiverse workforce, neurodivergent employees need improved support. NiB and founding members, such as Accenture, AstraZeneca, Bank of England, Capita, Network Rail, Sky and Unilever, recognise that reasonable modifications can enable more neurodiversity in the workplace and also benefit sustainability. The new forum will work with organisations that support neurodiversity including Auticon, Ambitious about Autism, the ADHD Foundation, the British Dyslexia Association, Diversity and Ability and the National Autistic Society.

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Diversity & Equality: Government’s LGBT+ Business Champion issues call to engage

On 18 March 2022, the government’s LGBT+ Business Champion, Iain Anderson, issued a call to engage to employers, staff networks, trade unions and civil society organisations with practical experience of creating LGBT+ inclusive workplaces, supporting LGBT+ inclusion and improving outcomes and experiences for LGBT+ people. He is looking for practical examples that work of what businesses are doing to improve LGBT+ outcomes and experiences in the workplace. The call to engage is not for personal experiences or views.

The questions ask for information on the following issues:

  • The collection of LGBT+ diversity and inclusion data and how effective this has been.
  • How organisations have been able to improve the outcomes and experiences of LGBT+ employees in the workplace and how effective this has been. Where possible, respondents are asked to disaggregate measures taken in support of lesbian, gay, bisexual and trans employees.
  • In countries where LGBT+ people routinely experience discrimination, what organisations are doing to support the safety and advocacy of LGBT+ staff.
  • How organisations can have a positive social and economic impact on LGBT+ equality, including in countries where LGBT+ people routinely experience discrimination. In particular, comments are welcomed on impacts outside the organisation, for example, having a positive influence through supply chains, distributors and customers.

The consultation closes on 28 April 2022.

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Equality: Government publishes response to Commission on Race and Ethnic Disparities report

On 17 March, the government has published its response to the report of the Commission on Race and Ethnic Disparities made a number of recommendations to address ethnic and racial disparities across society. The response confirms that mandatory ethnicity pay gap reporting will not be introduced. However, organisations who choose to publish their figures will be required to publish a “diagnosis and action plan“, setting out reasons why disparities exist and what will be done to address them. Guidance on voluntary ethnicity pay gap reporting, to be published in summer 2022, will be designed to help employers address some of the challenges around ethnicity pay gap reporting. It will include case studies drawn from organisations which have already chosen to report on their ethnicity pay, setting a benchmark for what a good action plan might cover.

The report also tackles the use of artificial intelligence in recruitment processes and automated decision-making. A white paper, to be published later in the year, will deal with how to address potential racial bias in algorithmic decision-making. To ensure technological advances do not have a disproportionate impact on ethnic minority groups, the EHRC will advise on the safeguards needed and issue guidance that explains how to apply the Equality Act 2010 to algorithmic decision-making.

The government has accepted the Commission’s recommendation that the acronym BAME (Black, Asian and minority ethnic) is unhelpful, and it has stopped using the term in its own communications. It is more productive to consider the disparities and outcomes of specific ethnic, rather than homogenous, groups. Where it is absolutely necessary to draw a binary distinction between the ethnic majority and ethnic minorities, the government will use the term “people from ethnic minority backgrounds“. The response also states that terms such as “white privilege” can be seen as stigmatising and potentially divisive, as they have the unintended consequence of pitting groups against each other.

The response includes a package of other measures designed to improve diversity and inclusion, including additional funding for the EHRC, an “Inclusion at Work Panel” which will disseminate diversity resources to employers, and updated guidance for employers on positive action, to be published by the end of the year. 

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Health: Fit notes may be issued digitally without a wet-ink signature from 6 April 2022

In its July 2021 response to the 2019 consultation document “Health is everyone’s business: proposals to reduce ill health-related job loss“, the government committed to removing the statutory obstacles to the digital issuing of fit notes. Currently, fit notes must be signed in ink by the issuing doctor, although given the significant shift to virtual GP consultations since the outbreak of the COVID-19 pandemic, there has been increasing demand for fit notes to be provided digitally.

The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2022 (SI 2022/298) were made on 14 March 2022 and come into force on 6 April 2022. They amend the Social Security (Medical Evidence) Regulations 1976 (SI 1976/615) and the Statutory Sick Pay (Medical Evidence) Regulations 1985 (SI 1985/1604). The new Regulations prescribe a new form of fit note, which will be used in parallel with the existing version of the form. The Regulations remove the requirement for the fit note to be signed in ink and the new form of fit note no longer contains a signature box.

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Mental Health: DHSC publishes discussion paper and call for evidence  

The Department for Health and Social Care has published a discussion paper and call for evidence on improving mental health and wellbeing, which includes the development of a ten-year plan to reduce the prevalence, incidence and recurrence of mental ill-health.

The discussion paper suggests compassionate employers are needed, who will protect and promote positive mental wellbeing by understanding and meeting physical and mental needs in the workplace. Two key challenges that were identified through the Thriving at Work are reiterated in the document:

  1. the need for a clear role for employers to prevent the onset of mental health conditions and mental ill-health, and
  2. wider implementation of workplace interventions to support mental health.

The role for employers to support mental wellbeing is further highlighted in the discussion around early intervention. Employers are identified as an important source of support for employees who may not need “clinical” early interventions. This section also highlights that in those instances, employers may need support and information to provide support for a distressed employee.

The consultation is open to all, and responses will be collected through an online survey until 11.45 pm on 5 July 2022.

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Menopause: Workplace pledge signed by over 600 employers

More than 600 employers have signed the Menopause Workplace Pledge, which is part of a campaign by Wellbeing of Women. In signing the pledge, employers recognise that the menopause can be a workplace issue for which employees need support. Signatories commit to open, positive and respectful workplace dialogue about the menopause and to taking active steps to support employees affected by the menopause and informing them of the support offered. Active measures have already been undertaken by some signatories: the Royal Mail has run an internal campaign to normalise conversations about the menopause, Tesco plans to incorporate a breathable fabric into its uniform to help with hot flushes, and News UK has said it will cover the cost of NHS HRT prescriptions and provide desk fans.

Last week, a survey of 1,000 HR professionals, (conducted by YouGov on behalf of Irwin Mitchell) revealed almost three-quarters of employers (72%) do not have a menopause policy and that only 16% of employers train line-managers on the menopause. The CIPD has reminded employers that positive action, such as engaging with this pledge and having a policy that outlines available support, must be “underpinned by a culture where people are actively encouraged to have open and supportive conversations“. It has its own Guidance for employers on how to better manage those affected by menopause at work, which can be accessed here.

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

Back

The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.

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