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Employment Law General Update – October 2024

  • Anne-Marie Pavitt,

  • 30th October 2024

Employment Law

Big changes are afoot this month with the introduction of the new Labour government’s Employment Rights Bill, aiming to fix problems perceived by the Labour party during their long stint in opposition, such as addressing one-sided flexibility, supporting more family friendly rights and prioritising fairness, equality and wellbeing of workers, ensuring fair pay, modernising trade union legislation and improving enforcement of employment rights. Consultation over the Bill will start now and continue in 2025, with the aim to implement the changes in 2026. We also bring you updates on sexual harassment, proposed employment rights for parents of still-born children and those born prematurely, guidance on the new Tipping Act, and a change in equality office.

  • Legislation: Government publishes Employment Rights Bill
  • Protection at Work: The Worker Protection (Amendment of Equality Act 2010) Act 2023 to comes into force on 26 October 2024 and EHRC updates its harassment guidance and publishes eight-step guide for employers on preventing sexual harassment at work
  • Parents: New private members’ bill on Still-Birth and leave for Neo-natal care
  • Pay: New Tipping Act and supplementary Code of Practice comes into force –  guidance available
  • Equality: Office for Equality and Opportunity replaces the Equality Hub

Legislation: Government publishes Employment Rights Bill

Background: In September 2021, the Labour Party first introduced its plan for working people in its ‘A new deal for working people’, launched at the Labour Party Conference. The document underwent several iterations, with the final version, Labour’s Plan to make work pay: Delivering a new deal for working people (New Deal), published just prior to the release of the manifesto in June 2024. The Labour Manifesto reiterated a number of the promises set out in the New Deal document and stated that the New Deal would be implemented in full within the first 100 days of the Labour government. The King’s Speech on 17 July 2024 confirmed that Labour’s plans would be implemented through the Employment Rights Bill 2024 (Bill) and the Equality (Race and Disability) Bill 2024. The Employment Rights Bill 2024 was published on 10 October 2024.

When will the Bill come into force? Commencement regulations will be required to bring provisions into force, with the exception of provisions on trade unions and industrial action, which will come into force two months from the day on which the Act is passed, and the repeal of the Strikes (Minimum Service Levels) Act 2023 and related provisions, which will come into force on the date the Act is passed.

What does the Bill plan to do? The Bill implements a large number of the reforms promised in the Labour Party’s New Deal document. Alongside the Bill, the government has also published a policy document entitled Next Steps to Make Work Pay (Next Steps) and a set of explanatory notes. The document sets out the government’s plan generally as well as the next steps in implementation for many of the measures.

Laid out below is a summary of the current position, the changes promised prior to the Bill and the expected reforms in relation to the measures set out in the Bill.

Zero hours and ‘low hours’ contracts: Zero-hour contracts are contracts of employment which lack a minimum number of guaranteed working hours and which do not require a minimum commitment from the employee. This means the working hours of an individual are unpredictable and may vary wildly from week to week. Although, individuals on zero-hour contracts do have a number of statutory protections, these are based solely on employment status. At present there is no definition as to what ‘low hours’ means. This will be the subject of consultation.

In order to provide more security for individuals on zero-hour contracts, the Labour Party promised to:

  • ban ‘exploitative’ zero hours contracts;
  • ensure a right to a contract reflecting the number of hours regularly worked and is likely to be based on a 12-week reference period;
  • ensure workers get reasonable notice of any shifts or working time changes, with proportionate compensation for cancelled or shortened shifts;
  • introduce anti-avoidance measures; and
  • end ‘one sided’ flexibility by ensuring all jobs provide a baseline level of security and predictability.

The Bill sets out a right to guaranteed hours where a worker regularly works more than those hours. The guaranteed hours are calculated according to a reference period, which is expected to be 12 weeks. Employers will be required to make an offer of guaranteed hours to workers at the start of employment and at the end of each reference period. Workers can also submit claims to the employment tribunal where an employer has failed to comply with their duty to offer guaranteed hours, or where that offer does not comply with the necessary requirements.

The Next Steps document states that the government intends to consult on the details and to ensure the Bill’s provisions on zero hours contracts are effectively and appropriately applied to agency workers.

Fire and re-hire: Currently, employers wishing to introduce changes to the terms and conditions of an employment contract have the option of terminating the contract (with the requisite notice) and offering immediate re-engagement to the affected employee on new terms. While in government, the Conservative party introduced a statutory Code of Practice on dismissal and re-engagement with guidance on engaging in meaningful consultation and exploring alternatives. However, the Labour Party have since committed to ending ‘fire and rehire’ practices entirely in addition to reforming the existing fire and rehire Code and introducing more effective remedies against abuse.

In place of the Code of Practice, clause 22 of the Bill inserts a new section 104I into the Employment Rights Act 1996, which makes a dismissal unfair where the reason for the dismissal is that:

  • the employer sought to vary an employee’s contract and the employee did not agree, or
  • the employer sought to employ another person or re-engage the employee under a varied contract to carry out substantially the same duties.

This will not apply where the employer shows that the reason for the variation was to eliminate, prevent or significantly reduce, or significantly mitigate the effect of, any financial difficulties which at the time of the dismissal were affecting, or were likely in the immediate future to affect, the employer’s ability to carry on the business as a going concern or otherwise to carry on the activities constituting the business, and in all the circumstances the employer could not reasonably have avoided the need to make the variation.


Unfair dismissal qualifying period: Under section 108(6) of the Employment Rights Act 1996 the right not to be unfairly dismissed generally only arises where the employee has been continuously employed for a period of at least two years; however the rule is subject to a number of statutory exceptions. The Labour Party has promised to remove the two-year qualifying period for unfair dismissal claims, making it a ‘day one’ right.

The Bill will repeal s.108 of the Employment Rights Act 1996 and remove the two-year qualifying period. However, there will be a new ‘initial period of employment’ (or ‘probationary period’) during which the employer can dismiss an employee for certain reasons, subject to following a specified procedure. The length of the initial period and the details of the procedure will be subject to consultation—see Probationary periods below.

Sick pay (SSP): SSP is currently available to employees who are deemed to have been too ill to undertake any work for a period of at least four consecutive days. Employees must also earn above the lower weekly earnings limit (currently at £123) in order to qualify for SSP. The Labour Manifesto laid out the Party’s commitment to removing the qualifying period for statutory sick pay making it also a ‘day one’ right and removing the lower earnings limit. The Bill reflects both these promises in clauses 8 and 9.

The government will consult on the percentage replacement rate for those earning below the current flat rate of SSP, before bringing it into force as an amendment to the Bill. Furthermore, the Next Steps document states that the new Fair Work Agency will be given responsibility for ensuring SSP enforcement.

Parental leave: Parents of a child (whether born to the parents or adopted) are entitled to take up to 18 weeks of unpaid leave to care for that child at any time before the child’s 18th birthday. Currently parents must have worked continuously for an employer for at least one year to qualify for parental leave. The Bill will make parental leave a ‘day one’ right.

Probationary periods: As noted above, the Bill introduces the concept of an ‘initial period of employment’ (or ‘probationary period’) where dismissals for specified reasons will not be considered unfair. The government has further committed in the Next Steps document to consulting on the length of that initial statutory probation period and to consult on how it interacts with ACAS’s Code of Practice on disciplinary and grievance procedures to ensure that ‘day one’ rights will not be affected by the statutory probation period.

Flexible working: The Employment Rights Act 1996 provides employees with a statutory right to request certain specified changes to their employment contract. However. employees must have had at least 26 weeks’ of continuous service in order to qualify for the right. Earlier legislative changes were made from 6 April 2024, including making the right to request a day one right. However, the grounds upon which an employer can reject a request remain broad.

The Bill introduces a reasonableness requirement into an employer’s decision not to grant flexible working requests, and requirement for the employer to explain to the employee why they consider it reasonable to refuse the request.

Protection for new mothers: Currently, dismissal on the grounds of pregnancy or maternity will be deemed to be an automatically unfair dismissal. This means that an employee dismissed under these circumstances does not require the two years of continuous employment ordinarily needed to bring a claim in the employment tribunal. A woman who takes ordinary maternity leave is also entitled to return to the ‘same job’ at the end of that leave unless that job is no longer available.

The Plan to make work pay also included a promise to strengthen these protections by making it unlawful, except in specified circumstances, to dismiss a woman who has had a baby for six months after she returns to work.

The Bill provides the Secretary of State with the power to make provision for regulations restricting dismissal of an individual during pregnancy or for a period after pregnancy.

Paternity leave: Currently an employee may take paternity leave to support a mother or adopter in taking care of a new child, subject to (among other things) having at least 26 weeks’ qualifying employment. Under the Bill, paternity leave will become a ‘day one’ right.

Bereavement leave: Employees are entitled to Parental bereavement leave (PBL) following the death of a child if they meet the requisite parental relationship conditions and comply with the notice requirements. PBL is a ‘day one’ right; however it is currently only available to employees. The Bill extends the right to take PBL to any ‘bereaved person’. PBL will no longer be limited to circumstances involving the death of a child. A bereaved person will be entitled to take leave for the death of any person as long as they meet the other relevant conditions set out in the regulations.

Equality action plans: Amendments to the Equality Act 2010 made by the Bill will require large employers (with 250 employees or more) to publish equality action plans showing the steps that the employer is taking in relation to their employees with regard to prescribed matters related to gender equality, and to publish prescribed information relating to the plan. These will need to cover addressing the gender pay gap and supporting employees going through the menopause.

Fair Work Agency: The Labour Party has committed to amalgamating the HMRC National Minimum Wage unit, the Employment Agency Standards Inspectorate and the Gangmasters Labour Abuse Authority into a single enforcement body known as the Fair Work Agency. The Bill establishes the Fair Work Agency which will be responsible for:

  • minimum wage and statutory sick pay enforcement;
  • the employment tribunal penalty scheme;
  • labour exploitation and modern slavery; and
  • enforcement of holiday pay policy (a new responsibility, which was not originally included in the New Deal document).

Fair pay agreements for social care workers: The Labour Party promised to consult on a new Fair Pay Agreement to create a New Deal for Social Care Workers. The Bill provides for the creation of an Adult Social Care Negotiating Body with a remit over remuneration, terms and conditions of employment and any matters specified by the Secretary of State, for social care workers. Agreements over remuneration which have been ratified by the Secretary of State must be paid in accordance with the agreement and any other term will have effect as a term of a worker’s contract. A consultation on how the Fair Pay Agreement should work is promised ‘soon’.

School support staff: The School Support Staff Negotiating Body, the pay body for school support staff, was abolished some time ago. The Labour Party stated that it would reinstate the Body, and task it with establishing a national terms and conditions handbook, training, career progression routes and fair pay rates for support staff to help to address the recruitment and retention crisis. The Bill re-establishes the School Support Staff Negotiating Body.

Trade unions: The Employment Rights Bill makes provision for changes to trade union law relating to:

  • a worker’s right to a statement of trade union rights;
  • a trade union’s right of access to a workplace;
  • trade union recognition;
  • members’ contributions to political funds, and public sector check-off arrangements;
  • time off rights for trade union officials, learning representatives and union equality representatives; and
  • blacklisting.

An employer will be required to give a worker a written statement that the worker has a right to join a trade union at the same time as the employer gives the worker a written statement of employment particulars. Secondary legislation will stipulate what information must be included in the statement, the form the statement must take and the manner in which the statement must be given.

The Employment Bill introduces a new framework for trade unions to request physical access to an employer’s workplace for the purposes of meeting, representing, recruiting or organising workers, and/or facilitating collecting bargaining. Access agreements are to be negotiated in the first instance between the employer and the trade union, with a referral to the Central Arbitration Committee provided for if agreement cannot be reached.

Thresholds required for a trade union to qualify for, and achieve, statutory recognition will be amended, with double thresholds removed where relevant and replaced by a simplified requirement for unions to demonstrate appropriate levels of support. In relation to individual contributions to a political fund of the trade union, the default position will be that individual members will be contributors to the political fund unless they specifically opt out (rather than the other way around, which is the current position.

Changes to the check-off arrangements for public sector workers introduced by s.15 of the Trade Union Act 2016 on 9 May 2024 are to be repealed.

Where an employer permits an employee or a learning representative to take time off for carrying out their duties under the Trade Union and Labour Relations (Consolidation) Act 1992 (ss.168 and 168A), it will also be expected, if requested, to provide reasonable accommodation and other facilities for carrying out those duties.

A new right for reasonable time off for union equality representatives is introduced to support duties related to promoting equality in the workplace.

Secondary legislation will be introduced to extend blacklisting protections; it will be unlawful not only to compile lists of trade union members etc, but also to use such lists for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers, and/or to sell or supply such lists for those purposes.

Industrial action: Changes are proposed in relation to:

  • balloting and notification requirements for lawful industrial action
  • lawful picketing;
  • detriment and dismissal for participating in lawful industrial action; and
  • restrictions on those working in regulated services from participating in industrial action.

Ballot participation thresholds will be done away with and support thresholds for industrial action will be the majority of those voting in the ballot. Additional balloting thresholds for those engaged in public services will also be done away with. Information that must be included on the voting paper in a ballot is to be significantly reduced and simplified. Provision is made for electronic balloting to be introduced.

The period of notice to be given to an employer to notify it of industrial action is to be reduced from 14 days to seven days.

Lawful picketing will no longer be dependent on the union supervision requirements contained in s.220A of the Trade Union and Labour Relations (Consolidation) Act 1992, which is to be done away with.

A new right for workers to be protected from detriment for participating in protected industrial action, or to deter them from doing so, is to be introduced, and protection against dismissal for participating in protected industrial action is to be extended.

The Strikes (Minimum Service Levels) Act 2023 is to be repealed, and industrial action restrictions on workers working in services that have been designated ‘relevant’ services under the Act are accordingly lifted.

Further reform: In addition to the anticipated reforms announced in the Labour Party’s New Deal and Manifesto, the Bill includes some measures which had not previously been anticipated. Clauses 16–18 of the Bill contain new provisions on sexual harassment, expanding the duty to prevent sexual harassment set to come into force on 26 October 2024 under the Worker Protection (Amendment Of Equality Act 2010) Act 2023. The new sections introduce:

  • liability for harassment by third parties;
  • provision for disclosures about sexual harassment qualifying as a protected disclosure under S.43B of the Employment Rights Act 1996; and
  • the addition of specified steps that an employer must take to demonstrate that they have taken reasonable steps in the prevention of sexual harassment for the purposes of the legislation.

The government will also consult on lifting the cap of the protective award if an employer is found to not have properly followed the statutory collective redundancy processes and on the role interim relief could play in protecting workers in these situations.

As stated above, the Next Steps document provides a general timeline on the implementation of the measures and reforms set out in the Bill. The majority of the measures in the Bill are set to be brought in through commencement legislation, and a number will go through a consultation process before their eventual implementation. According to the Next Steps document, the government expects to start consulting in 2025, although the government is ahead of itself in this regard and launched four consultations on 21 October 2024. The four consultations, which run until early December 2024, seek views of the Bill’s measures relating to a new right to guaranteed hours for zero or low hours workers, collective redundancy consultation and ‘fire and rehire’ practices, trade union legislation and statutory sick pay.  This means that any substantive reforms are unlikely to take effect much before 2026. This also means the Bill is likely to see some amendment before all the measures fully come into force.

The Next Steps document also refers to a number of reforms not included in the Bill which the government is nevertheless committed to introducing. These are:

  • a full review of the parental leave system;
  • a review of the implementation of carer’s leave and an examination of the benefits of introducing paid carer’s leave;
  • a consultation on workplace surveillance technologies;
  • consultations on the creation and implementation of a single ‘worker’ status;
  • a call for evidence on TUPE 2006 regulations and processes;
  • a review of health and safety in the workplace aimed at modernising guidance and regulations;
  • a joint consultation with ACAS on collective grievances;
  • the introduction of a new National Procurement Policy Statement aimed at reforming the public procurement ahead of the commencement of the Procurement Act 2023 in February 2025; and
  • an extension of the Freedom of Information Act 2000 to private companies that hold public contracts and publicly funded employers.

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Protection at work: The Worker Protection (Amendment of Equality Act 2010) Act 2023 to comes into force on 26 October 2024 and EHRC updates its harassment guidance and publishes eight-step guide for employers on preventing sexual harassment at work

The Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force on 26 October 2024. The Act will:

  • Introduce a duty on employers to take reasonable steps to prevent sexual harassment of their employees.
  • Give employment tribunals the power to uplift discrimination compensation by up to 25% where an employer is found to have breached the duty to prevent sexual harassment.

At present it’s only a duty to take ‘reasonable steps’, the new Employment Rights Bill already includes a change to ‘all reasonable steps’ which no doubt will come into force in due course.  The Employment Rights Bill will also re-introduce employer liability for third party harassment in relation to all relevant protected characteristics under the Equality Act (sex, sexual orientation, age, disability, etc.)

Sexual harassment occurs where both:

  • A engages in unwanted conduct of a sexual nature.
  • The conduct has the purpose or effect of either violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

The EHRC has published an updated technical guidance for employers on the steps they can take to prevent sexual harassment in the workplace. The EHRC has also published an eight-step practical guide to assist with this preventative duty, including developing an effective anti-harassment policy, using a reporting system that allows workers to raise an issue either anonymously or in name, and regularly monitoring and evaluating the effectiveness of an employer’s actions.

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Parents: New private members’ bill on Still-Birth and leave for Neo-natal care

The Still-Birth (Definition) Bill (a Private Members’ Bill sponsored by Liberal Democrat peer, Baroness Benjamin) received its first reading in the House of Lords on 14 October 2024. The Bill would amend the definition of still-birth to apply from 20 weeks into a pregnancy, rather than from 24 weeks as currently is the case, including for the purposes of entitlement to maternity allowance under section 35 of the Social Security Contributions and Benefits Act 1992.

Currently under the Neonatal Care (Leave and Pay) Act 2023 (which received Royal Assent on 24 May 2023) employees with responsibility for children receiving neonatal care will be entitled to receive up to 12 weeks of paid leave per year. Regulations bringing into force its main provisions are awaited.

The latest edition of HMRC’s Employer Bulletin confirms that from 6 April 2025 HMRC will begin to administer statutory neonatal care pay (SNCP). The Bulletin informs employers that SNCP:

  • is claimable in the first 28 days following the birth of a child after they have spent seven consecutive days in neonatal care
  • can be paid for a maximum period of 12 weeks but will allow some flexibility dependent upon individual parental circumstances and other statutory payments to which they may be entitled.

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Pay: New Tipping Act and supplementary Code of Practice comes into force –  guidance available

On 1 October 2024, the Employment (Allocation of Tips) Act 2023 and statutory Code of Practice on fair and transparent distribution of tips came into force. Under the Act, employers must distribute tips in a ‘fair and transparent’ manner, passing all tips, gratuities, and service charges on to workers, without deductions. Failure to do so could result in employment tribunal claims by workers seeking to enforce their rights.

The Advisory, Conciliation and Arbitration Service (ACAS) has published guidance on tips and service charges in relation to the Act and supplementary Code of Practice which are both now in force. The guidance explains what the new law says, sharing tips fairly, and the obligation to have a written policy and to keep records. The guidance also covers which tips the law applies to, when tips must be paid, tronc systems and what happens if tips are not being paid correctly.

The DBT has also published non-statutory guidance for employers for employers on distributing tips fairly. The guidance is aimed at helping employers apply the statutory code of practice on fair and transparent distribution of tips, and applies to all sectors and businesses where tips are received. The guidance is not part of the statutory Code of Practice, legal advice or an exhaustive account of what is acceptable under either the Employment Rights Act 1996 or the statutory Code of Practice.

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Equality: Office for Equality and Opportunity replaces the Equality Hub

The Equality Hub has been replaced by the Office for Equality and Opportunity. The Office for Equality and Opportunity will cover the overall framework of equality legislation in the UK, including disability policy, ethnic disparities, gender equality and LGBT+ rights.

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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 – March 2024

  • Employment,

  • 24th March 2024

reporting regime Employment Law

We bring news of several changes to the leave allowances for parents and carers in this month’s update. We also look at the latest report from the Treasury about the shocking levels of sexual harassment and bullying in the city whilst the Parker Review has found while there has been some improvement in ethnic minority representation on boards, there is still plenty of room for improvement. We also share news on the new ICO guidance on information sharing in a mental health emergency at work.

  • Discrimination: Sexism in the City report finds ‘shocking’ levels of sexual harassment and bullying
  • Data Protection: ICO issues guidance on information sharing in a mental health emergency at work

Parental & Carer’s Leave: New Regulations come into force

The new Paternity Leave (Amendment) Regulations 2024 (SI 2024/329) are made to amend the Paternity and Adoption Leave Regulations 2002, SI 2002/2788, the Paternity and Adoption Leave (Adoption from Overseas) Regulations 2003, SI 2003/921, and the Paternity, Adoption and Shared Parental Leave (Parental Order Cases) Regulations 2014, SI 2014/3096. They came into force on 8 March 2024 and apply to children whose:

  • expected week of childbirth is after 6 April 2024; or
  • expected date of placement for adoption, or expected date of entry into Great Britain for adoption, is on or after 6 April 2024.

The changes include, amongst other things:

  • allowing an employee to choose to take either two non-consecutive weeks’ paternity leave (birth), or a single period of either one week or two weeks; and
  • extending the period in which paternity leave (birth) must be taken from 56 days after the birth of the child, to 52 weeks after the birth.

The new Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 (SI 2024/264) are made to extend an existing statutory protection from redundancy that currently applies to those employees who are on maternity, adoption or shared parental leave. The extension means this protection also applies to pregnant women and new parents who have recently returned from any period of maternity or adoption leave, or from a period of six or more weeks of shared parental leave. The Regulations are due to come into force on 6 April 2024. Therefore any employers currently considering commencing a redundancy process or in the middle of one should review any affected employees who may now be protected under these new Regulations.

The Carer’s Leave Regulations 2024 (SI 2024/251) are made to implement a new statutory entitlement to Carer’s Leave for employees from 6 April 2024. They ensure that this leave will be available to employees for the purpose of caring for a dependant with a long-term care need. They are also due to come into force on 6 April 2024.

These are supported by The Carer’s Leave (Consequential Amendments to Subordinate Legislation) Regulations 2024 (SI 2024/266) which make necessary amendments to various pieces of secondary legislation in consequence of the Carer’s Leave Act 2023 which makes provision for the new statutory right to carer’s leave, available for employed carers from 6 April 2024. When calculating entitlements to certain other benefits or rights, leave is often a relevant factor. This instrument makes provision to ensure that it is clear in those pieces of secondary legislation how carer’s leave should be treated in those calculations.

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Discrimination: Sexism in the City report finds ‘shocking’ levels of sexual harassment and bullying

The Treasury Committee has published its Sexism in the City report, following an inquiry launched in July 2023, and is calling for an end to the ‘era of impunity’ after finding a ‘shocking’ prevalence of sexual harassment and bullying, and a culture which is ‘holding back women’ in the City. The Committee welcomes proposals by the Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA) to strengthen their regimes for tackling non-financial misconduct, including sexual harassment, but calls on them to ‘drop their prescriptive plans for extensive data reporting and target setting’. The FCA has responded to the report.

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Diversity and Gender Pay Gap: Parker Review Committee update report expands scope of targets for ethnic minority representation

The Parker Review Committee has published its March 2024 report into ethnic diversity across UK businesses. For the first time, the Committee has expanded its review to include senior management data, commenting that this yields a clearer picture than looking into boards of directors alone. It has also expanded its research to include private companies (50 in total) as well as listed companies. The report found that:

  • 96% of FTSE 100 companies have at least one ethnic minority director on their board, compared with 44% of private companies;
  • ethnic minorities currently represent an average of 13% of senior management positions within FTSE 100 companies, with a target set to increase this average to 17% by 2027.

Hywel Ball, Chairman and Managing Partner of EY UK, says:

“The Parker Review, and the targets that it sets, provide an important benchmark and objective criteria to encourage fair representation of ethnic minorities. Crucially, it ensures we lead efforts to diversify UK business with respect to ethnicity from the top down and continue to be held accountable, no matter the macroeconomic climate. Representation matters – the more diverse boardroom and executive teams are, the greater the ripples across the organisation. Over the last nine years, there has been good progress but we are still a long way from achieving parity based on ethnicity. This year’s figures – 12 ethnic minority CEOs in the FTSE 100 and 7 Chairs – are encouraging but show there is work to be done to ensure our business leaders fairly represent their customers and society they serve.”

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Data Protection: ICO issues guidance on information sharing in a mental health emergency at work

The Information Commissioner’s Office (ICO) has issued guidance for employers on sharing their workers’ personal information in a mental health emergency. The guidance sets out advice on when, and how, it is appropriate to share workers’ personal information where the employer believes that someone is at risk of causing serious harm to themselves or others due to their mental health. The ICO adds that it is good practice to plan ahead in order to make timely and better-informed decisions during a mental health emergency. The guidance considers what a mental health emergency is, how mental health information differs under data protection law, how to plan for information sharing and the lawful bases and special category conditions that are most likely to apply.

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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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Employment Law General Update – May 2023

  • Employment,

  • 29th May 2023

Employment Law

This month’s news provides an update on the effect of the Retained EU Law Bill and the scrapping of the sunset clause, a new smart regulation from the DBT, a report on the post-pandemic economic growth in the UK labour markets, new guidance from ACAS on both managing stress at work and making reasonable adjustments for mental health at work, a new podcast from the HSE to support disabled people in the workplace and a consultation from the EBA on the benchmarking of diversity practices. Lastly, we have the results of research carried out on unfair treatment of parents following fertility treatment.

  • Brexit: Government scraps the proposed sunset clause from the Retained EU Law  Bill and Minister confirms effect of the Bill on equality and employment rights
  • Employment Law: Department for Business and Trade – Smart regulation unveiled to cut red tape and grow the economy
  • Flexible Working: House of Commons Committee report on post-pandemic economic growth in UK labour markets
  • Health at Work: ACAS publishes new guidance on managing stress at work and making reasonable adjustments for mental health at work
  • Disability: HSE launches podcast to support disabled people in the workplace
  • Diversity: EBA publishes consultation on guidance on benchmarking of diversity practices
  • Sex Discrimination: Research reveals unfair treatment at work after fertility treatment

Brexit: Government scraps the proposed sunset clause from the Retained EU Law  Bill and Minister confirms effect of the Bill on equality and employment rights

On 10 May 2023, the government announced that it will scrap the proposed sunset clause from the Retained EU Law (Revocation and Reform) Bill. As we have previously reported in our Employment Law News, the sunset clause would have meant that most retained EU law in secondary legislation would have been revoked at the end of 2023. Instead at least 600 pieces of retained EU law will be set out in a revocation schedule, which can be found here. Any laws not listed in the revocation schedule will be retained automatically.

Meanwhile, the Department for Business and Trade has published a response to a letter by the Rt Hon Caroline Nokes MP, Chair of the Women and Equalities Committee, requesting further explanation about the Retained EU Law Bill’s effect on equality rights and protections. The response by the Rt Hon Kemi Badenoch MP, Minister for Women & Equalities, confirms that the Retained EU Law Bill does not intend to undermine equality rights and protections, employment rights or maternity rights in the UK. It sets out that most equality protections will remain unaffected, as they are provided for in primary legislation, in particular the Equality Act 2010 (to which no changes are expected because of the Bill) and any relevant secondary legislation and additional instruments will be considered.

It also highlights that where additional provision is required, the Bill enables the UK Government and the devolved governments to protect the rights and protections of UK citizens. This includes a restatement power which allows departments to codify rights into domestic legislation. The response emphasises that this power will secure rights and protections, by laying them out accessibly and clearly in statute.

Employment rights

The response sets out that the government does not intend to amend workers’ legal rights through the Bill, that the UK provides for greater protections for workers than are required by EU law and that the government remains committed to making sure that workers are properly protected in the workplace.

Parental leave

The response emphasises that the repeal of maternity rights is not and has never been government policy, and that the UK is in fact further along than the EU when it comes to maternity rights.

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Employment Law: Government’s “Smart regulation unveiled to cut red tape and grow the economy”

On the 10 May 2023 the Department for Business and Trade published its paper “Smarter regulation unveiled to cut red tape and grow the economy” which the government describes as “the first dynamic package of deregulatory reforms to grow the economy, cut costs for businesses and support consumers …”

 The governments announcements include the following proposed amendments to employment law:

  • The government is proposing to remove retained EU case law that requires employers to record working hours for almost all.
  • Making rolled-up holiday pay lawful. Rolled up holiday pay is where an employer includes a sum representing holiday pay in an enhanced hourly rate rather than continuing to pay workers as normal when they actually take leave. This was ruled to be in breach of the Working Time Directive by the ECJ well over a decade ago.
  • The merger of annual leave (20 days derived from the EU’s Working Time Directive) and additional leave (being the additional 8 days holiday provided under the Working Time Regulations). Whilst this appears to be sensible it will be interesting to see how the European case law which specifically applies to the 20 days annual leave, such as what constitutes holiday pay and taking such holiday in the year in which it falls, is dealt with.
  • TUPE – there are proposals to do away with the need for elections of employee representatives for businesses with fewer than 50 employees or transfers of fewer than 10 employees.

 The government has launched consultation on these points.

 The government has also proposed limiting the length of non-compete clauses to three months. This will require the passing of legislation, which, the government says will be dealt with when parliamentary time allows.

So we wait to see exactly what legislative changes come about following these announcements.

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Flexible Working: House of Commons Committee report on post-pandemic economic growth in UK labour markets

A House of Commons Committee report says the government must reconsider the need for an Employment Bill in the upcoming King’s Speech to address gaps in employment protections. The government has two months to respond to the committee’s proposals which are on topics including the machinery of government with responsibility for labour market policy; technology and skills development; workers’ rights and protection; and older workers.

The report, which follows on from a Call for Evidence on the state of play in the UK Labour market post-Brexit and the COVID-19 pandemic, highlights that:

  • with 500,000 people having left the British workforce since the start of the pandemic, a shortage of labour weighs heavily on the potential for economic growth;
  • economic inactivity has risen among people aged 50 to 64 years;
  • the way in which the recommendations of the Taylor Review have been implemented has been fragmented and drawn-out;
  • the enforcement of labour market rules is under-resourced.

It calls on the government to:

  • consider establishing a Ministry of Labour and appoint a new Minister of State for Labour in the Cabinet, as well as a Cabinet Committee on Labour;
  • take various actions in respect of technology and skills;
  • reconsider the need for an Employment Bill in the upcoming King’s Speech to address gaps in employment protections;
  • consider new legal structures for flexible work that include appropriate rights and protections for workers;
  • provide more protection for workers from any damaging effects of night-time working;
  • pursue the creation of the planned single enforcement body which would clarify rights of redress for those most in need;
  • continue and expand support for older workers.

It also calls on businesses to:

  • be more open to create more flexible constructions of work;
  • offer more flexible working opportunities to benefit from a huge untapped pool of older workers and to assess whether their recruitment practices and workplaces are ‘ageist’.

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Health at Work: ACAS publishes new guidance on managing stress at work and making reasonable adjustments for mental health at work

Managing stress at work:

ACAS has published new advice for employers on managing stress at work after YouGov revealed 33% of British workers disagreed that their organisation was effective at managing work-related stress. YouGov was commissioned by ACAS and surveyed just over 1,000 employees in Great Britain. ACAS sets out that stress can be caused by demands of the job, relationships at work, poor working conditions and life events outside of work such as financial worries. An ACAS poll in March 2023 revealed that 63% of employees felt stressed due to the rising cost of living.

Advice for employers on managing stress at work include:

  • looking out for any signs of stress among staff. Signs include poor concentration, tiredness, low mood and avoiding social events;
  • being approachable available and have an informal chat with staff who are feeling stressed;
  • respecting confidentiality and being sensitive and supportive when talking to staff about work-related stress;
  • communicating any internal and external help available to staff such as financial advice if the cost of living is a cause of stress.

ACAS states that creating a positive work environment can make employees healthier and happier at work, reduce absence levels and improve performance.

ACAS advice on managing stress can be accessed here.

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Making reasonable adjustments for mental health at work:

ACAS has published new guidance for employers and workers on reasonable adjustments for mental health. ACAS states that ‘employers should try to make reasonable adjustments even if the issue is not a disability’. The guidance covers:

  • what reasonable adjustments for mental health are;
  • examples of reasonable adjustments for mental health;
  • what reasonable adjustments can be made for mental health;
  • requesting reasonable adjustments for mental health;
  • responding to reasonable adjustments for mental health requests;
  • managing employees with reasonable adjustments for mental health;
  • reviewing policies with mental health in mind.

ACAS has also published case studies exploring how different organisations have helped staff with reasonable adjustments for mental health.

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Disability: HSE launches podcast to support disabled people in the workplace

The Health and Safety Executive (HSE) has launched a new podcast aiming to help employers support disabled workers and those with long-term health conditions in the workplace. The podcast features discussion by host Mick Ord, former BBC Radio journalist, Moya Woolley, Occupational Health Policy Team Leader at HSE and Rebecca Hyrslova, Policy Advisor at Federation of Small Businesses (FSB); and offers advice for employers on how to create a supportive and enabling workplace, take an inclusive approach to workplace health, understand the work barriers that impact on workers, make suitable workplace adjustments or modifications, develop skills, knowledge and understanding, use effective and accessible communication, and support sickness absence and return to work.

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Diversity: EBA publishes consultation on guidance on benchmarking of diversity practices

The European Banking Authority (EBA) has launched a consultation on guidelines on the benchmarking of diversity practices including diversity policies and the gender pay gap pursuant to Articles 75(1) and 91(11) of the Capital Requirements Directive IV (Directive 2013/36/EU) (CRD IV) and Article 34(1) of the Investment Firms Directive (Directive (EU) 2019/2034). The EBA has been collecting data on diversity since 2015 based on information requests. The EBA hopes that the issuance of these guidelines will lead to a higher level of transparency regarding the EBA’s work on the topic of diversity and gender equality and will help improve the quality of the collected data as well as the awareness of all stakeholders on these topics. The new reporting format is expected to apply for the collection of data in 2025 for the financial year 2024. Responses are sought to the consultation by 24 July 2023.

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Sex Discrimination: Research reveals unfair treatment at work after fertility treatment

Pregnant Then Screwed published a press release during Infertility Awareness Week revealing the unfair treatment women face in the workplace due to their reproductive health. Research has revealed that of the 43% of women who informed their employer of their fertility treatment, one in four did not receive any support from their employer. One in four women also experienced unfair treatment because of undergoing fertility treatment. Unfair treatment was also experienced by 22% of women who disclosed their pregnancy loss to their employer while 6% of partners who disclosed the same faced negative treatment.

The press release confirms Pregnant Then Screwed will be launching a new programme to help employers deal with reproductive health issues in the workplace better. They will be hosting a Women in the Workplace seminar for businesses to find out more about the new training and accreditation scheme which signals fertility friendly employers. This free event will take place in June 2023.

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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 – April 2023

  • Employment,

  • 25th April 2023

Employment Law

A lot going on this month. New rates and consultations regarding NLW and NMW, new requirement for immigration scale-up route, an update on the Retained EU Law Bill and discussions over the definition of ‘sex’ under the Equality Act. Meanwhile, there is a review into whistleblowing law, an inquiry into seasonal worker visas, a blog on loneliness in the workplace, and a review relating to the work prospects of autistic people.

  • Staff Pay: Changes to rates of National Living Wage and National Minimum Wage and 2023 consultations
  • Whistleblowing: Government launches whistleblowing law review
  • Immigration: Home Office publishes details of a new endorsement requirement for the Scale-up route
  • Immigration: MAC Chair publishes letter regarding inquiry into Seasonal Worker visa
  • Welfare: Glassdoor reveals survey findings on employee loneliness
  • Disability: DWP publishes new review to increase work prospects of autistic people
  • Disability: Commons briefing highlights lowest rates of employment among disabled people are for those on autism spectrum
  • Brexit: An update on the Retained EU Law (Revocation and Reform) Bill
  • Equality Act: EHRC respond to Minister’s request to clarify the definition of ‘sex’

Staff Pay: Changes to rates of National Living Wage and National Minimum Wage and 2023 consultations

SI 2023/354: These Regulations are made to amend the National Minimum Wage Regulations 2015, SI 2015/621. They come into force on 1 April 2023 and increase:

  • the rate of the national living wage for workers who are aged 23 or over from £9.50 to £10.42 per hour
  • the rate of the national minimum wage for workers who are aged 21 or over (but not yet aged 23) from £9.18 to £10.18 per hour
  • the rate of the national minimum wage for workers who are aged 18 or over (but not yet aged 21) from £6.83 to £7.49 per hour
  • the rate of the national minimum wage for workers who are under the age of 18 from £4.81 to £5.28 per hour
  • the rate for apprentices within SI 2015/621, reg 5(1)(a) and (b) from £4.81 to £5.28 per hour
  • the accommodation offset amount which is applicable where any employer provides a worker with living accommodation from £8.70 to £9.10 for each day that accommodation is provided

The Low Pay Commission (LPC) has published a consultation seeking views on the impact of National Living Wage (NLW) and National Minimum Wage (NMW) increases for 2024. The NLW is expected to rise to between £10.90 and £11.43 in 2024. The information gathered will be used to inform the LPC’s recommendations to the government in the Autumn. The consultation closes on 9 June 2023 at 11:45pm.

See also our updated Facts and Figures for 2023

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Whistleblowing: Government launches whistleblowing law review

On 27 March 2023, the government published a press release confirming that they have launched a review of the whistleblowing framework. The press release states that the review will gather evidence on the effectiveness of the current whistleblowing regime in enabling workers to speak about wrongdoing and protect those who do so. The press release confirms that the evidence gathering stage of the review will end in Autumn 2023. The review will pursue views and evidence from whistleblowers, key charities, employers and regulators.

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Immigration: Home Office publishes details of a new endorsement requirement for the Scale-up route

The Home Office has updated its sponsor guidance in relation to the Scale-up route. Notably, it confirms that an ‘endorsing body pathway’ is being launched, on 13 April 2023, for prospective employer applicants who do not meet the sponsor licence eligibility requirements (eg ‘if their HMRC history is not long enough’). As an alternative, prospective sponsors will be able to obtain an endorsement from a Home Office-approved endorsing body and submit this with the licence application (which must be made no more than three months from the date of endorsement). The guidance confirms that the endorsement process will attract a fee, and further details will be published in due course. Other changes include a new Annex SC2, setting out the changes to the route from 12 April 2023, in line with the Statement of Changes in Immigration Rules HC 1160.

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Immigration: MAC Chair publishes letter regarding inquiry into Seasonal Worker visa

The Chair of the Migration Advisory Committee (MAC), Professor Brian Bell, has published a letter written to the Minister of State for Immigration, Robert Jenrick, regarding an inquiry into the Seasonal Worker visa. The inquiry will consider the rules under which the scheme operates, the size and costs of the scheme, the potential for exploitation and poor labour market practice, evidence from international comparisons and the long-run need for such a scheme. Bell has also confirmed that MAC will be working with the Department of Environment, Food and Rural Affairs (DEFRA) during the inquiry.

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Welfare: Glassdoor reveals survey findings on employee loneliness

Glassdoor has published a blog with insights from its new study which surveyed 2,000 employees to understand the levels of employee loneliness in the UK. The blog reveals the impact of poor workplace social life and the importance of workplace friendships to retaining staff.

Key findings include:

  • six in ten people with less than five years of work experience are lonely all or most of the time
  • only 51% of employees connect socially with colleagues at least once a month
  • 28% of workers under 35 would stay in a job they did not like if the workplace social life was good
  • 89% of workers believe feeling a sense of belonging with their company is vital to their overall workplace happiness
  • nearly 49% of workers say a good social life has a significant impact on their overall job satisfaction and mental health

Common reasons for workplace loneliness include less in-person interaction with co-workers, inflexibility in the workplace, and a lack of focus on creating a sense of belonging or community by an employer.

Glassdoor reveals that without a good workplace social life, workers are more likely to be less productive and engaged. They are also more likely to experience stress, anxiety and eventually burnout.

 

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Disability: DWP publishes new review to increase work prospects of autistic people

The Department for Work and Pensions (DWP), supported by the autism charity Autistica, has launched a review, the Buckland Review of Autism Employment, to increase the employment prospects of autistic people. The review, which will be led by Sir Robert Buckland KC MP and start in May 2023, will consider how the government can support employers to recruit and retain autistic people and enjoy the benefits of a neurodiverse workforce. Recommendations for change will be made to the Secretary of State in September 2023.

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Disability: Commons briefing highlights lowest rates of employment among disabled people are for those on autism spectrum

The House of Commons has released a research briefing on autism, policy and services. The briefing sets out the Department for Work and Pensions’ annual set of statistics on the employment of disabled people, which reports that the lowest rates of employment among disabled people are those on the autism spectrum.

In the 2020–21 financial year, 26.5% of disabled people on the autism spectrum were in employment, compared to 52.5% of all disabled people and 80.4% of non-disabled people in the same period. In 2016, the National Autistic Society reported that 77% of unemployed people with autism wanted to work.

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Brexit: An update on the Retained EU Law (Revocation and Reform) Bill

Retained EU law is a concept created by the European Union (Withdrawal) Act 2018. This Act took a ‘snapshot’ of EU law as it applied to the UK at the end of the Brexit transition period on 31 December 2020 and provided for it to continue to apply in domestic law. The Bill would automatically revoke, or ‘sunset’, most retained EU law at the end of 2023. This would not apply to retained EU law that is domestic primary legislation.

Ministers and devolved authorities could exempt most (but not all) retained EU law from the sunset, and UK ministers (but not devolved authorities) could delay the sunset until 23 June 2026 at the latest for specific descriptions of retained EU law. Any retained EU law that still applied after the end of 2023 would be renamed as assimilated law. The Bill would give ministers and devolved authorities powers to restate, reproduce, revoke, replace or update retained EU law and assimilated law by statutory instrument.

The Bill would also repeal the principle of supremacy of retained EU law from UK law at the end of 2023, although its effects could be reproduced by statutory instrument in relation to specific pieces of retained EU law. The Bill would also make changes to the way that courts could depart from retained EU case law.

The Bill would change the way that some types of retained EU law can be modified. It would ‘downgrade’ retained direct EU legislation so that this could be amended by secondary legislation. It would also remove additional parliamentary scrutiny requirements that currently apply when modifying some types of EU-derived domestic secondary legislation.

The government has published a ‘dashboard’ of retained EU law, although it acknowledges this is not a comprehensive catalogue of all retained EU law that may be in scope of the Bill. The dashboard is due to be updated regularly.

Concerns have been raised throughout the Bill’s progress about the amount of retained EU law to be reviewed before the sunset deadline and whether some may end up being revoked inadvertently. In the Commons, MPs expressed concerns about the impact of large-scale and rapid changes to the statute book as a consequence of the Bill and have highlighted a lack of clarity about what retained EU law the government intends to keep, particularly in the areas of employment, environmental and consumer protections. They were also critical of a lack of parliamentary scrutiny of and input into the process of reforming retained EU law. However, the only amendments made to the Bill in the House of Commons were government amendments to clarify the Bill’s drafting.

The Bill is now with the House of Lords. Five days of Committee proceedings—when a Bill is examined in detail—concluded on 8 March 2023.

Over the five days, Peers put forward many amendments to the Bill on a range of subjects. Opposition peers were scathing in their comments on the Bill. For example, Baroness Ludford (LD), said the Bill was ‘pretty hopeless’ and accused the government of adopting a ‘slash and burn’ approach to legislative reform, with opposition amendments seeking to bring to it ‘some rationalisation and order’. For the government, Lord Callanan, said, on the contrary, a ‘significant minority’ of retained EU law was ‘legally inoperable’ and that it was ‘not good governance’ to subject it to ‘complex and unnecessary parliamentary processes’ before being able to remove it from the statute book. He added that the amendments, including those seeking to delay the sunset, would ‘hamper efforts to realise the opportunities the Bill presents’.

The Bill has come out of Committee stage in the Lords with amendments, including the insertion of a new clause setting out exceptions to the sunset of REUL, and it seems likely that further amendments will be made at Report stage. It is noteworthy that at Second Reading in the Lords a significant number of Conservative peers spoke against the Bill. The level of opposition expressed by peers from all parties indicates that it may not be straightforward for the government to get the Bill into law. It seems likely that the government will need to accept at least some of the Lords’ amendments if it wishes to avoid a lengthy period of ‘ping pong’ between the Lords and the Commons.

In contrast to the approach being taken in respect of much retained EU law, the House of Lords is, in parallel, scrutinising the Financial Services and Markets Bill, which would similarly revoke retained EU law relating to financial services, but contains developed provisions which enable the Treasury and financial services regulators to replace that EU Law with legislation designed specifically for UK markets.

Report stage on the Bill—a further chance for the House of Lords to closely scrutinise elements of the Bill and make changes—began on 19 April 2023.

Authors: David Mundy, Aaron Nelson, and Joanna Purkis at BDB Pitmans, for LexisNexis. 

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Equality Act: EHRC respond to Minister’s request to clarify the definition of ‘sex’

On 21 February 2023, the Minister for Women and Equalities, Kemi Badenoch, requested advice from the Equality and Human Rights Commission (EHRC) regarding the definition of the protected characteristic of ‘sex’ in the Equality Act 2010 (EqA 2010). EHRC have provided an initial response to the Minister’s request namely suggesting that the UK government carefully consider implications any change to the legislation could have.

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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