Employment Law Autumn Update – Recent Developments for Employers

By Nicola Smyrl

Partner

22 November 2023

Article Insights

In recent weeks the Government has announced a range of changes and proposed changes to employment law.  In this article we discuss the most significant changes affecting employers to assist businesses in responding to the changes and planning for the future.

TW’s Employment Law team is able to assist you with manging these changes within your business.

1. Sexual Harassment – new duty on employers to come into force

The Worker Protection (Amendment of Equality Act 2010) Bill, which introduces a duty on employers to take reasonable steps to prevent sexual harassment of their employees, has received Royal Assent, becoming the Worker Protection (Amendment of Equality Act 2010) Act 2023.

The Act amends the Equality Act 2010 to:

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

This new duty applies from October 2024.

At present, employers can defend a claim of sexual harassment by stating that it took reasonable steps to prevent the harassment from happening.  This new duty means that the employer is required to be more pro-active in having appropriate processes in place to prevent harassment from occurring in the first place.  As a minimum, employers should consider a comprehensive policy covering harassment at work and regular staff training on the requirements of the policy.

TW Employment Law team is able to assist businesses with updating policies and staff training programmes.

• Home Office publishes Draft code of practice on preventing illegal working

The Home Office has confirmed that increases to illegal working fines will take effect from 22 January 2024.  To assist employers in avoiding fines, it has published a draft code of practice on preventing illegal working which, once approved by Parliament, will apply to all right to work checks from 22 January 2024.

The draft code details how employers can establish a statutory excuse for right to work checks.  All employers should review the code and ensure that their right to work check practices are compliant with the new requirements.

• Changes to Working Time Regulations

In November, the Government published draft legislation containing amendments to the law on holiday pay and working time. The changes, which are likely to come into force on 1 January 2024, include:

1. simplifying holiday pay calculations by making rolled-up holiday pay (when employers include an employee’s holiday pay within their basic pay) at the rate 12.07% of pay lawful for part-year workers and those who work irregular hours.  This will be welcome news for employers of casual staff who have been struggling to determine the most appropriate way to deal with holiday for these types of workers.  The new legislation defines what will amount to a part-year and irregular worker.

• clarification that various EU based working time rights will remain in force despite Brexit.  This includes rights for employees and workers to carry over leave that cannot be taken due to periods of sickness absence or family related leave.

• defining what payments need to be included in holiday pay as “normal remuneration” for the first four weeks of holiday entitlement for employees and workers who earn regular payments in addition to basic salary.

• removing the additional working time record keeping requirements set out in a recent European judgment which had held working hours and rest records must be kept for almost all members of the workforce, even if they worked regular hours.

The proposed changes to the Working Time Regulations are significant.  We will be providing more detailed guidance on the changes in due course.

• Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) Reforms

At present, where a business with more than 9 employees is affected by a TUPE transfer, the transferor (usually referred to as the Seller or outgoing contractor) and the transferee (usually referred to as the Buyer or incoming contractor) are usually obliged to provide information to, and in some cases consult, with elected representatives of employees affected by the transfer.  The process of electing representatives can be time consuming and often employers would prefer to consult with employees on an individual basis.

The Government intends to amend TUPE to enable small employers (fewer than 50 employees) and businesses of any size undertaking a transfer affecting fewer than 10 employees to consult directly with their employees if there are no existing worker representatives. 

This change will apply to transfers taking place after 1 July 2024.

• Reforms to the Rehabilitation of Offenders Act 1974

Changes to the law on “spent convictions” came into force on 28th October 2023.  In most cases, employers are not permitted to ask job candidates and employees about (and they are not obliged to reveal) convictions which have become spent. Exceptions apply to certain roles such as those working with vulnerable individuals.

Under the reforms, the length of time between being convicted and that conviction becoming spent shall reduce in respect of some convictions.  The intention behind this change is to enable former offenders who are regarded as “rehabilitated” better prospects in the job market. 

If you ask questions about criminal convictions as part of your recruitment process or at any other stage in the employment relationship, it will be important to undertake a review to ensure that the business does not seek information that it is no longer entitled to receive.

• Changes to National Minimum Wage Rates

The Government announced on 21 November its acceptance of the Low Pay Commission (LPC)’ recommendations on national minimum wage (NMW) rates to apply from 1 April 2024. The rates recommended by the LPC are set out below.

The National Living Wage is the highest rate of the NMW rates, currently applicable to workers aged 23 and over.  Please note that the age threshold is due to be lowered to 21 in April 2024 to cover workers aged 21 and 22.

If you have any queries about the matters referred to above, or any other employment law or business immigration matters, please contact TW’s employment law team here.

Disclaimer: General Information Provided Only
Please note that the contents of this article are intended solely for general information purposes and should not be considered as legal advice. We cannot be held responsible for any loss resulting from actions or inactions taken based on this article.