Mid-2024 Review – Employment Law Changes & Developments
To help keep you updated in relation to the recent and forthcoming changes in UK employment law we have set out below some current developments and initiatives which we hope you will find helpful. In particular, the important forthcoming changes to the law in relation to sexual harassment where employers should now be reviewing their anti- harassment policies and taking pro-active steps to prevent sexual harassment in the workplace.
Although the general election has been called for 4 July and there has been a lot of press reports about what may or may not be in the respective party manifestos, we will not speculate at this stage, but will bring you a special general election edition when the manifestos have been published.
If you would like further information on any of the topics discussed in this update, please contact TW’s Employment Team here.
Sexual Harassment in the Workplace – New law comes into force on 27 October 2024
The Worker Protection (Amendment of Equality Act 2010) Act 2023, which will come into force on 27 October 2024 introduces a new legal duty to take reasonable steps to prevent the sexual harassment of employees in the course of their employment. Where an Employment Tribunal has upheld a complaint of sexual harassment it will have the discretion to increase the sex discrimination award by up to 25% where there has been a breach of the employer’s duty.
Therefore prior to October employers should be considering the following:
- Ensuring there is a register for complaints about all forms of harassment.
- Identifying the risk of harassment in each area of the workforce and considering specific measures to protect employees particularly at risk.
- Updating and re-circulating anti-harassment policies and training to help employees to avoid the threat of harassment, and to give those who witness harassment the means to safely intervene.
- Considering third-party facing steps including informing customers that harassment of staff will not be tolerated.
Please contact us if your business would like assistance in relation to updating your anti – harassment policies in view of the forthcoming changes. We are also able to provide training about implementing anti- harassment policies and how to deal with sexual harassment complaints.
The Employment (Allocation of Tips) Act 2023 – “the Tipping Act”
From 1 October 2024 the Employment (Allocation of Tips) Act 2023, known as the Tipping Act, comes into effect which requires employers to ensure that workers receive the full tip, gratuity or service charge from a customer.
In brief, the legislation places a legal obligation on an employer to pass on all tips, gratuities and service charges to staff through a fair distribution method without withholding any amount to cover costs. The only deductions permitted are for tax and national insurance purpose reasons.
Tips must be paid to eligible workers no later than the end of the month following the month in which the tip or service charge was received from the customer.
Workers can complain to an employment tribunal where there has been a failure to comply by the employer with their obligations regarding allocation or payment of qualifying tips. The time limit for bringing a claim is 12 months from the date of the failure to comply. An employment tribunal will have the power to order an employer to:
- revise the allocation of tips (and may make a non-binding recommendation regarding the allocation); and
- make a payment to a worker or workers (not just the claimant).
A tribunal can also order the employer to pay compensation of up to £5,000 for any financial loss suffered by the claimant because of the breach.
The Government has produce a draft Code of Practice which provides guidance on how the Tipping Act should be implemented and can be used by an Employment Tribunal as part of their decision making process. See link below.
TUPE Reforms and abolishing European Works Councils
The Department for Business and Trade (DBT) has launched a consultation on proposed reforms to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006) and abolishing the legal framework for European Works Councils.
The amendments to TUPE 2006 would reaffirm that its protections only apply to employees not workers and remove the obligation to split employees’ contracts between multiple employers where a business is transferred to more than one new business.
Smarter regulation: employment law reform – GOV.UK (www.gov.uk)
The consultation closes on 11 July 2024.
Additionally, in some cases employers will be able to consult with employees directly (unless the organisation has existing employee representatives) for TUPE transfers that will take place after 1 July 2024. However, this is limited to circumstances where the business has less than 50 employees, or where the transfer involves fewer than 10 employees.
“Work Well” Pilot Scheme
The Department for Work & Pensions and the Department for Health & Social Care have announced their new initiative, “Work Well”, which will begin piloting in October 2024. There will be schemes in 15 different areas of England.
The service will provide a single assessment for users, in addition to local employment support and health services. It aims to:
- Help individuals manage their health or disability; and
- Identify relevant workplace adjustments to keep them in work or return sooner.
The service is open to anyone, and employers are also able to make referrals. Once signed up or referred, employees will be designated a “Work and Health” coach who carries out an assessment and develop a plan to help the individual overcome any barriers they may be facing at work or in returning to work.
Should the pilot schemes be successful, it may lead to a national Work Well service.
2024 Neurodiversity Index report published
The City & Guilds Foundation, an organisation specialising in skills development, has published its 2024 Neurodiversity Index report.
The report found that more employers are focusing on neuroinclusion, with an increase in employers having neuroinclusion strategies and adapting their recruitment practices to accommodate neurodivergent applicants as compared to the previous year.
However, it also found that 50% of individual respondents had been off work during 2023 due to neurodivergent-related challenges, with more than a third of neurodivergent workers not having received any guidance from their employer and a fifth claiming to still be waiting for promised adjustments to be made.
The report also made various recommendations aimed at creating a neuroinclusive workplace, including:
| • | Drafting clear and understandable job descriptions that reflect the actual skills needed for the job to improve inclusive hiring. |
| • | Providing interview questions in advance to all applicants (for example, John Lewis now publishes its job interview questions on its website and clearly explaining the rules of the workplace during onboarding processes.) |
| • | Ensuring physical, technological and communication accommodations are in place to support all employees. |
| • | Implementing employee resource groups, neurodiversity champions and mentorship programmes to support neurodivergent employees. |
| • | Reviewing and updating policies to create an inclusive work environment and eliminate barriers. |
| • | Encouraging and supporting the representation of neurodivergent individuals at all levels within the organisation. |
For further information regarding neurodiversity in the workplace the CIPD (Chartered Institute of Personnel and Development) has published a useful guide on neuroinclusion at work, which contains helpful advice for employers in creating a neuroinclusive workforce.
Guidance on Employing Disabled People
The Government published guidance for line managers on recruiting, managing and developing disabled people.
This follows the CIPD’s 2023 report on health and wellbeing at work. The report surmised that confidence and knowledge is the most common challenge managers face in managing individuals who are disabled.
The guidance aims to help managers better support disabled people to create an inclusive work environment which results in improved team performance and morale, increased employee retention and reducing absences from work.
The link to the full guidance can be found by following this link to the DWP website – https://www.gov.uk/government/publications/disability-confident-and-cipd-guide-for-line-managers-on-employing-people-with-a-disability-or-health-condition
Case Law Update
In the recent case of Groom v Maritime and Coastguard Agency [2024], the Employment Appeal Tribunal (EAT) held that a volunteer can be a “worker” if they are entitled to be renumerated.
The Claimant initially brought a claim as he was not permitted to bring a trade union representative to a disciplinary hearing. The Claimant argued he was a worker.
Within the course of his engagement, the Claimant was entitled to claim expenses to cover “minor costs caused by volunteering and to compensate for disruption to their personal life and employment.” The Tribunal held the Claimant was not a “worker” as there was no contract between him and the Coastal Rescue Service. There was no automatic right to remuneration, and it was found many volunteers did not claim for their minor costs back. Any agreement between the parties was merely voluntary.
On appeal, the EAT rejected the idea a volunteer relationship was “unique”. Volunteer status differs and is dependent on the specific arrangement between the parties. In this instance:
- It was irrelevant that the sums were not paid automatically;
- A contract had come into existence when the Claimant attended a relevant activity they were entitled to be remunerated for; and
- The attendance was governed by a Code of Conduct which set minimum levels of attendance.
The above factors gave rise to a provision of services and the Claimant was therefore deemed a “worker”. This case further underlines that the question of employment status will be determined on the specific facts of the case and therefore by labelling an individual as a volunteer or worker does not mean they are when it comes to the legal tests being applied.
TW’s employment law team is able to assist you with any queries relating to these matters, including updating policies and procedures and staff training.
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.
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