UK: round-up of new employment law consultations, guidance and progress on legislative proposals

Update 25 May: the Neonatal Care (Leave and Pay) Bill, Carer's Leave Bill and Protection from Redundancy (Pregnancy and Family Leave) Bill have now received Royal Assent.  The Acts require regulations (yet to be drafted) to bring the new rights into force and so are unlikely to be commenced before 2024.  See our blog post here for further details.

Update 10 May: Kemi Badenoch has today issued a written statement announcing that the Government will replace the current sunset provision in the Retained EU Law Bill with a list of the retained EU laws that it intends to revoke under the Bill at the end of 2023. Other laws will remain on the statute books until there is time for proper assessment and consultation.  She also announced that a consultation on cutting unnecessary red tape on recording working hours, streamlining TUPE consultation for smaller employers, and limiting non-compete clauses (see here for further details).   

Keeping track of proposals to amend employment laws has always been challenging and the start of 2023 has been no exception, with a plethora of Government announcements of new consultations, guidance and support for Private Members' Bills. Below is a round-up of recent developments:

Consultations / reviews

• The Government finally published for consultation its proposed statutory code to encourage employers that want to change workforce terms and conditions to do so by negotiation and agreement, and only as a last resort to dismiss then ‘re-hire’ the existing (or new) workers on new terms. The final version of the draft 'fire and re-hire' code will be brought into force "when parliamentary time allows".  For further details, see our blog post here.
• The Government also consulted on proposals to change the statutory holiday calculation rules for part-year and irregular hours workers, to make their entitlement proportionate to the annual hours they worked in the prior holiday leave year.  This is in response to the Supreme Court decision in Harpur Trust v Brazel (see our blog post here). See here for further details.
• The Government has launched a review into the effectiveness of the whistleblowing framework.  The evidence-gathering stage will end in Autumn 2023.  The policy paper notes that there have been calls for reform to the whistleblowing framework, and several ideas have been put forward to expand the framework and reorganise responsibilities for whistleblowing.  It states that the review will examine evidence related to the definition of worker for whistleblowing protections, but there is no other indication of what potential reforms might be considered.
• The Government's Health and Disability White Paper proposes working with the occupational health sector to improve access, a new digital advice and information service for employers, and "adjustment passports" to document workplace adjustments and general working requirements for disabled employees. The Government will also test the benefits of providing support to employers who are willing to shape vacancies to accommodate an employee's disability, and continue to work with the Disability Confident Business Leaders Group and Neurodiversity in Business to promote the business benefits of employing those with disabilities. There will be a consultation on a new Disability Action Plan later in 2023.
• The Government has launched the Buckland Autism Employment Review, supported by the charity Autistica, to make recommendations to the Secretary of State in September 2023 on measures to support employers in recruiting and retaining autistic people.  The announcement notes that many of the adjustments and initiatives that would benefit autistic people could also benefit a wider group of neurodiverse people, including those with conditions such as ADHD, dyslexia and dyspraxia.  Alongside the review, Autistica are promoting awareness of the barriers faced by autistic people in the traditional interview process and have produced the Autistica Employers Guide to Neurodiversity with guidance on how to run inclusive interviews.

Guidance

Enabling equality of opportunity is a key moral and strategic opportunity for any organisation, but the uncertain boundaries around lawful positive action and the complexity of ethnicity pay gap reporting has discouraged their adoption.  The Government has now published guidance on both topics, in the hope of giving employers confidence to implement these steps appropriately - see more detail here.

The Government has also published guidance for employers on helping individuals return to work, following the announcement of its "returnerships programme" as part of the Spring 2023 Budget. The guidance outlines tips for helping people return to work, the benefits of supporting returning workers, key considerations, how to design a return to work programme, and how to effectively conduct and deliver the programme.

Acas has recently published two new guidance notes providing helpful tips for employers on mental health issues, the first on reasonable adjustments for mental health at work and the second on managing work-related stress (following a survey in March 2023 which revealed that one third of workers believe their organisation is not effective at managing stress at work). Reasonable adjustments for mental health may include changes to the physical working environment, changes to working arrangements, doing something differently, adapting how policies are applied or providing equipment, services or support. For example, an employer may break down work into short-term tasks, reduce more stressful responsibilities such as customer-facing work, agree a preferred style of communication, relocate someone's workspace to a quieter area, be flexible with trigger points for absence or schedule regular check-ins. Case studies are provided here.  Employers are also advised to review their policies to ensure they are suitable for employees with mental health problems and to introduce a reasonable adjustments for mental health policy if there is not already one in place.  Similarly, the guidance on work-related stress discusses possible adjustments and the importance of a clear policy, risk assessments, manager training and employee support.

The HSE also issued new guidance to help employers in supporting disabled employees back in November.

No legislative changes to cover menopause

The Government has confirmed previous announcements that it does not intend to amend the law to enhance protection for workers going through the menopause and has also rejected recommendations to produce a model menopause policy (on the ground that there is already guidance on developing a policy available from Acas and the CIPD).  A new Menopause Employment Champion has been appointed and has called on more employers to develop menopause policies.  The HSE will be asked to publish guidance on supporting disabled people and those with long-term health conditions, which may apply to those suffering menopausal symptoms; expected Autumn 2023.

Of course, employers need to bear in mind that employees suffering significant menopausal symptoms may already be able to bring disability, sex or age discrimination claims and, given heightened awareness of this issue, employers should ensure it is included within diversity training for staff, and that managers in particular are aware of the wide variety of menopause symptoms, duration and onset dates (including early menopause) that can be suffered and how to respond appropriately if an employee raises their menopause symptoms in the context of discussions about performance, sickness absence or reasonable adjustments. For further details, see our blog post here.

The future of EU-derived employment laws

The Rt Hon Kemi Badenoch MP, Minister for Women & Equalities and Business Secretary, has confirmed that the Retained EU Law Bill does not intend to undermine equality rights and protections, employment rights or maternity rights in the UK. Her letter 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. It has been suggested that the Government is now planning to remove only around 20% of existing retained EU laws from the UK statute book at this stage. According to media reports, the Government is expected to commit to retaining the most high-profile EU-derived laws, including the Working Time Regulations.  It is not yet clear whether TUPE will be preserved in its entirety; should the uncertainty continue, businesses negotiating transactions in the coming months will need to factor this in if completion could occur after the year end.  See our Beyond Brexit blog post for further detail here.  Update 10 May: Kemi Badenoch has today issued a written statement announcing that the Government will replace the current sunset in the Bill with a list of the retained EU laws that it intends to revoke under the Bill at the end of 2023. Other laws will remain on the statute books until there is time for proper assessment and consultation.  She also announced that a consultation on cutting unnecessary red tape on recording working hours, streamlining TUPE consultation for smaller employers, and limiting non-compete clauses, with further details here.   

Strikes (Minimum Service Levels) Bill

The Bill would allow the Secretary of State to make "minimum service regulations" for strikes in "relevant services" in the fields of health, transport, education, fire and rescue, border control, and nuclear decommissioning and radioactive waste management services.  Following consultation with the union, the employer would then be able to give a work notice, at least 7 days in advance of the strike, identifying workers required to work during the strike (subject to the requirement not to identify more workers in the notice than are "reasonably necessary" to meet the minimum service level and not to intentionally select union members to work). Employers would be able to dismiss employees for failure to comply with a work notice or to sue a trade union for failure to take reasonable steps to ensure compliance.  Various bodies (including the House of Commons Joint Committee on Human Rights and the Equality and Human Rights Commission) have warned that the Bill as drafted is likely to be incompatible with the European Convention of Human Rights.  The Bill passed the Commons but significant amendments (including removing the remedies for employee/union failures) have been passed in the early stages of its progress through the House of Lords.

Progress of Private Members' Bills 

The Employment (Allocation of Tips) Bill has just received royal assent and is expected to be brought into force in 2024, following a consultation and secondary legislation.  Withholding tips will become unlawful, a new statutory Code of Practice will be developed to provide businesses and staff with advice on how tips should be distributed, and workers will receive a new right to request more information relating to an employer’s tipping record.

In February the Government confirmed that it is backing the Workers (Predictable Terms and Conditions) Bill.  This would give workers and agency workers the right twice a year to request a predictable work pattern where their contract is for 12 months or less or is for an unpredictable number of hours or days of the week or times, probably subject to a 26 week service requirement.  Applications could be rejected on specific statutory grounds and there would be protection against detriment and unfair dismissal, similar to the statutory framework for making flexible working requests.  The Workers (Predictable Terms and Conditions) Bill has now passed the Commons, as have the Neonatal Care (Leave and Pay) Bill, Carer's Leave Bill, Employment Relations (Flexible Working) Bill, and the Protection from Redundancy (Pregnancy and Family Leave) Bill (see here for more detail), all of which are now progressing through the House of Lords.

The Government had given its support to the Worker Protection (Amendment of Equality Act 2010) Bill, which would implement its earlier proposals (see here) to introduce employer liability for harassment of employees by third parties and a new proactive duty to take all reasonable steps to prevent sexual harassment in the workplace.  Amendments were made in the Commons to address concerns expressed by Tory MPs about imposing liability where staff overhear others expressing controversial opinions.  Recent media reports have now queried whether the Government may allow the bill to be 'timed out' by the tabling of multiple amendments by Tory peers in the House of Lords.

A number of Private Members' Bills have had their second reading scheduled to take place on a November day when the House is not expected to sit, and so are not expected to progress. These include bills proposing new employment rights for employees undergoing fertility treatment or miscarriage, non-disclosure agreements and changes to various parental leave rights.

April 2023 changes to statutory benefits, tribunal compensation, minimum wage

• From 6 April 2023, the cap on the unfair dismissal compensatory award increases from £93,878 to £105,707 and the cap on weekly pay (used to calculate the unfair dismissal basic award and statutory redundancy pay) increases from £571 to £643. This gives a maximum unfair dismissal award of £124,997 (or, if less, 12 months’ pay).
• The bands for injury to feelings awards have also been increased for claims presented on or after 6 April 2023;  the lowest band starts at £1,100, the middle band at £11,200, and the highest band starts at £33,700 with a cap of £56,200 (save in exceptional cases).
• From 1 April the weekly rate of statutory sick pay increases to £109.40 per week (from £99.35) and from 2 April the weekly flat rate of statutory maternity, paternity, adoption and shared parental pay increases to £172.48 per week (from £156.66).
• The national minimum wage rates increases from 1 April 2023. Workers of 23 years and older will be entitled to be paid a minimum national living wage of £10.42 per hour (increased from £9.50).  The hourly rate for those aged 21 to 22 increases to £10.18 (from £9.18).