New employment rights (still not implemented and not yet part of the legislative agenda): There are six private Members’ Bills before Parliament. These all have government support; therefore, they are eventually likely to be passed into law. A summary of each is set out below:
The Pregnancy and Maternity Discrimination Bill
Pregnant women and new parents will receive greater protections from redundancy under the new legislation. Under current rules, before offering redundancy to an employee on maternity
leave, shared parental leave or adoption leave, employers must offer them a suitable alternative vacancy where one exists. The Pregnancy and Maternity Discrimination Bill introduced will enable this redundancy protection to be extended so it applies to pregnant women as well as new parents returning to work from a relevant form of leave. This will help shield new
parents and expectant mothers from workplace discrimination, offering them greater job security at an important time in their lives.
The ‘protected period’ will be extended from when the employer is informed of the pregnancy and will continue to apply for six months after returning from the maternity, adoption or shared parental leave. (The provision does not extend to paternity leave as this is a shorter period of 2 weeks).
The Carers Leave Bill
The Carer’s Leave Bill will introduce a new right to one week’s unpaid leave in any 12 months. This is an extended right for all employees to provide, or arrange care, for a dependent with a long-term care need. The bill contains a specific definition of a dependant, restricting the scope to a spouse, civil partner, child, or parent of the employee. The dependant may live in the same household or reasonably relies on the employee to arrange care and long-term needs. This includes:
- Someone with an illness or injury that requires, or is likely to require, care for more than three months.
- Someone with a disability within the meaning of the Equality Act 2010.
- Someone who requires care for reasons connected to their age.
The provision will be a day-one right, meaning employees do not need to have continuous service to qualify. Please note the employee doesn’t need to take the 1-week leave in one block. When requesting a carer’s leave, the employee must give twice as much notice as the time they are requesting. The employee isn’t required to provide evidence of the reason they are taking leave and the employer isn’t permitted to request evidence.
The Neonatal Care Bill
The Neonatal Care (Leave and Pay) Bill will enable parents with responsibility for a child receiving neonatal care to take up to 12 weeks of additional paid leave. Employees will also be protected from dismissal or detriment if they take this leave. The right to leave will apply from the first day of employment, although similar to maternity, adoption and paternity leave an employee will be required to have at least 26 weeks of continuous service to be paid at the usual statutory rate.
Employment Relations (Flexible Working) Bill
The Employment Relations (Flexible Working) Bill will enhance employees
requests to flexible working by:
- Extending the number of flexible working requests an employee can make during 12 months from one to two.
- Every employee has the right to request flexible working from day one of employment. (Introduced by secondary legislation)
- The employer must consult with an employee before refusing the flexible working request.
- Employees are not required to set out how the employer deals with the effects of the request.
- Employers are required to respond to a flexible working request within 2 months, instead of three months.
The current statutory reasons for rejecting a flexible working request will remain
the same.
Top Tips: The Employment (Allocation of Tips) Bill will make it unlawful for businesses to withhold any qualifying tips, gratuity, and service charges. The Bill states tips must be allocated fairly between workers. There will likely be a new statutory Code of Practice provided with more detailed advice on how tips should be distributed amongst workers (like the Code of Practice on Disciplinary and Grievances).
The Worker Protection (Amendment of Equality Act 2010) Bill | Harassment
The Worker Protection (Amendment of Equality Act 2010) Bill will make it a duty of employers to take reasonable steps to prevent sexual harassment of employees. Employers will be liable for harassment of employees by third parties (e.g. clients/customers) unless they have and can evidence they’ve taken all reasonably practicable steps to prevent the sexual harassment. If a tribunal finds the employer is in breach, it can award an uplift of compensation up to 25%. Each of the above Bills is currently scheduled to reach the third reading in the House of Commons by the end of February this year. There will also be secondary legislation to implement the proposed employment rights in full. They will likely become law in 2023 with secondary legislation following in 2024.
The Retained EU Law (Revocation and Reform) Bill
The Retained EU Law (Revocation and Reform) Bill is of significant interest to many, but even more so to Employment Lawyers, solicitors, and HR. This will automatically remove any retained EU law so that it expires on 31 December 2023, unless there is legislation introduced to keep it. This potentially includes the Working Time Regulations 1998, Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), Agency Worker Regulations 2010 and more.
The Bill will also provide courts and tribunals with greater discretion to leave EU-derived domestic case law. It is currently suggested that the 2023 deadline will be relaxed, but the current
final date under the Bill is 23 June 2026. So even if it isn’t this year, over the coming years, we should expect to see government proposals on laws to amend or replace EU-derived law.
Strikes (Minimum Service Levels) Bill
New laws will allow the government to set minimum levels of service which must be met during strikes to ensure the safety of the public and their access to public services. Any employee who is required to work to meet the minimum service level under the bill, but still strikes, will no longer be protected from automatic unfair dismissal.
The Strikes (Minimum Service Levels) Bill will ensure crucial public services such as rail, ambulances and fire services maintain a minimum service during industrial action, reducing risk to life and ensuring the public can still get to work. The Bill appears to be higher up on the Government’s agenda following the recent strikes in the NHS, Nurses, Paramedics, Trains, and teachers and has already passed its second reading in the House of Commons.
The High Court has granted permission for trade unions to launch a legal challenge against regulations implemented in July 2022 allowing agency workers to replace staff during a period of industrial action. A judicial review hearing is expected to take place in March 2023.
‘Fire and Rehire’ tactics
Fire and Rehire refer to when an employer dismisses an employee and rehires them on new terms. The new terms are generally less favourable for the individual than under their previous contract of employment.
It is anticipated a new statutory Code of Practice on dismissal and reengagement will be published to be consulted on. The Government aims to clarify its expectations on employers to behave fairly and reasonably when seeking to change employees’ terms and conditions.
The new Code will require employers to hold fair, transparent, and meaningful consultations on the proposed changes to employment terms. Tribunals will also be required to take the new code into account when considering the fairness of dismissals and, if an employer unreasonably fails to comply with the code, tribunals will have the power to uplift any compensation awarded up to 25%.
Consultation on the new code has been delayed but it is anticipated shortly.
Data Protection
The ICO Information Commissioner’s Office requested views to help shape its new data protection and employment practices guidance, which will replace the existing Employment Practices Code. The ICO has confirmed that this will be replaced with a web-based hub of guidance covering various employment topics and issues.
The draft guidance will be issued in stages and then added to the resource over time. The first two drafts were both published in October 2022, relating to:
- Monitoring workers at work (this consultation closed on 20 January 2023);
- Handling information about workers’ health (this consultation closes on 26 January 2023).
We can expect further draft guidance from the ICO to be published for consultation.
There are also proposals to replace UK GDPR legislation with a new data protection framework. The Data Protection and Digital Information Bill was introduced in July 2022, aiming of updating and simplifying the UK’s current data protection framework. This Bill is currently paused, and it is not yet clear when it will be progressed.
Public Sector Exit Payments
The consultation on public sector exit payments (closed in October 2022) was indebted to review views on a new controls process for high-value public sector payments above £95,000 and amendments for special severance payments (i.e. any payments over an employee’s statutory or contractual entitlements). The Government hasn’t yet published its response and there is no confirmed date for when it is to take effect.
There are suggestions that exit packages over £95,000 must be approved by the Secretary of State. This figure of £95,000 includes any relevant statutory, contractual, and discretionary payments due to the employee.
For more information, contact Park City today and we will be more than happy to help you with the Employment Law updates.
