Employment legal update #75

Parental leave and paternity leave both become day-one employment rights under the Bill, but are otherwise unaffected, other than that paternity leave may now be taken in addition to, and following, shared parental leave.

The existing Parental Bereavement Leave is extended to a general entitlement to Bereavement Leave. Regulations yet to be drafted will specify the relations to which the entitlement relates but where the deceased is a child, leave remains at two weeks.
In all other cases, the leave is limited to one week. Where more than one person has died, regulations (yet to be drafted…) will allow the bereaved employee ‘to leave in respect of each person’.

Statutory Sick Pay (SSP) is currently paid from the fourth day of ill health, so that the first 3 days are unpaid. However, this new Bill provides for SSP to be payable from the first day of sickness. It also removes the minimum earnings threshold of eligibility to the lower of the full amount (currently £116.75) and a specified percentage of a worker’s weekly earnings (with the percentage to be determined by regulations which… you’ve got it… have yet to be published).

The government said it wanted to do away with zero hours contracts. It hasn’t completely but it has severely curtailed their flexibility. Employers of workers on zero-hours (or low-hours, and we don’t yet know what “low hours” looks like – wait for the regulations!) contracts must guarantee them a minimum number of hours reflective of the hours they have worked in any given reference period (not definite yet but may be 12 weeks). Workers can accept or refuse such an offer; but it would appear that, if they reject it, the employer must make a new offer at the end of each reference period.

What is more, if the worker accepts that contract, but over the following reference period, the hours they work are still more than in the new contract, the employer has to offer them another contract with increased hours reflective of the hours worked in that previous reference period. Yet again the devil will be in the detail to be published in due course.

What in effect happens is a ratcheting up effect if the hours increase. But it is not clear how employers are supposed to deal with seasonal workers who have a few months of very intense work (think Christmas periods for bars and restaurants; harvest periods for farmers) but whose work outside those periods is much less demanding. Possibly fixed term contracts? The Workers (Predictable Terms and Conditions) Act 2023 will now be repealed as a consequence of this new approach to zero hours contracts.

There is a new right for employees and workers to receive reasonable notice of shifts and shift changes for those on irregular shift patterns or under zero hours contracts. Yet again, regulations will set out the minimum periods below which notice will be presumed to be unreasonable unless the employer is able to demonstrate otherwise, and compensation if shifts are cancelled. Workers will be entitled to a specified amount of compensation for short notice changes and cancellations.

All the details will be set out in regulations once these are published including the amount of notice which is considered reasonable, and the amount of compensatory pay. Importantly, at present these provisions are not intended to apply to agency workers (giving rise to the possibility of a massive increase in the hiring of agency workers). However, consultation was launched on 21 October on this and other points so this may change.

The Employment Rights Bill significantly expands on current TU rights.

• There will now be a “day one” right to a statement of trade union rights for all employees and workers in the same way as, for employees, the right to a written statement of terms and conditions.
• There will be a lowering of strike thresholds and relaxing of strike rules – this will now be decided by a simple majority of those actually voting, doing away with the requirement that more 50% of those entitled to vote having to do so in order for action to be agreed upon. This reverts to the position prior to the Trade Union Act 2016 coming into force.
• The minimum notice requirement of industrial action being taken, is being reduced to 7 days from 14 – prior to the Trade Union Act 2016, it was 7 days, so the position is reverting to how it was before that legislation.
• Greater protection for workers taking industrial action – protection form detriment for doing an act where that act is for sole or main purpose of taking industrial action.
• Protection for unfair dismissal is extended from just the first 12 weeks of industrial action to the entire period of the action concerned.
• There will now be a requirement for employers to provide employees with information on the right to join a union – so expect an increase in unionisation.
• A very significant new right coming in is the right of a trade union to access the workplace to recruit members, meet and represent workers and facilitate collective bargaining. As with everything in this new Bill, regulations will put flesh on the bones of these new provisions, but one cannot help but think this will not be welcome news for employers.
• There is to be a relaxation of recognition rules for collective bargaining – the percentage of bargaining unit, currently 10%, is likely to be reduced, with some commentary saying perhaps as little as 2%.
• There will be an extension of protection from blacklisting.

The Employment Rights Bill is changing the way in which collective consultation is carried out. The definition of a single establishment for the purposes of determining whether or not collective consultation needs to be carried out, will be done away with. This will mean that redundancies carried out simultaneously in different locations for the same employer will be subject to the obligation to collectively consult, even if the number in one particular location is under 20.

This is where the work really starts. On 21 October, the government announced consultation, to last until 2 December, on the following specific areas of the bill:

• Zero hours contracts consultation
• Collective redundancy and fire and rehire consultation
• Trade union consultation
• SSP consultation

It is not beyond the realms of possibility that some of the provisions outlined in the Employment Rights Bill will be altered or maybe even omitted altogether once consultation has concluded. It is only when the draft regulations are issued that we will really understand the extent of these new provisions.

On 26th October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023, cameIt into force, bringing with it a new responsibility for employers in respect of any incidents of sexual harassment in the workplace.

These new rules have important implications. Even a single isolated incident can mean the employer is held responsible. Employers now have a duty to take all reasonable steps to prevent sexual harassment of their employees in the course of their employment.

There is some guidance on what constitutes “reasonable steps” in the Employment Rights Bill as mentioned above, but in the event a tribunal claim is bought against employers, they will be able to defend it if they can show they took “all reasonable steps” to prevent sexual harassment occurring.

It is vital for all employers to evaluate what steps they already have in place and see if they could take them further and identify any additional steps and measures to protect their employees.

The Equality and Human Rights Commission’s (EHRC) guidance advises employers to carry out a risk assessment to:

• Consider the risks of sexual harassment occurring in the course of employment.
• Consider what steps could be taken to reduce those risks and prevent sexual harassment of their workers.
• Consider which of those steps it would be reasonable for it to take.
• Implement those reasonable steps.

Many things could come out of a risk assessment including updating policies, training staff (including extra training for managers), developing a communications plan and ensuring any complaints are handled effectively. A method for monitoring and evaluating progress should be put in place.

Employers are strongly advised to implement the EHRC guidance to mitigate against the risk of claims for sexual harassment being lodged. This duty also extends to taking all reasonable steps to prevent inappropriate behaviour from third parties (now covered expressly in the Employment Rights Bill). The employment tribunal can now award a 25% uplift in damages for failing to comply with the new rules; and compensation for harassment related to a protected characteristic is potentially unlimited.

Among the steps that employers can take now to help protect themselves are:-

• Update and review workplace policies to ensure they focus on inclusion and equality.
• Promote a zero tolerant, open and inclusive culture to allow employees to bring up issues without the fear of consequences. Make sure the employees know that they can feel comfortable and supported if they have to report issues of sexual harassment.
• Take immediate action when allegations of harassment are raised, which will include a full investigation into the circumstances.
• Provide training to both staff and management on sexual harassment, what they should be looking out for and how to report it, and for management, how to deal with reports of this.
• Implementing a code of conduct for both employees and third parties entering the employer’s premises so that they are all aware of the type of behaviour expected of them. Employers should consider displaying these in visible places for people to see.
• Implement an internal reporting register where complaints of sexual harassment can be tracked and recorded. This means that any allegations are dealt with and taken seriously, but that they are also dealt with in accordance with internal policies.

It is equally important for individuals to feel that they can report incidences to their employer in confidence and the knowledge that it will be properly and sensitively handled.