Lots of updates in this month’s newsletter. New entitlements came into force at the beginning of the month with regard to neonatal care leave and statutory pay. Whilst a survey has found LGBTQ+ employees feel unsupported by their HR teams, the government is busy investigating race and disability rights issues and asking for your help with this. A survey has been carried out looking at workplace abuse and changing trends in employment and there are some important changes to immigration and sponsorship fees and guidance from the ICO about storage of personal data.
Parental Leave & Pay: Government guidance on statutory neonatal care leave and pay published
Equality: Study finds nearly half of LGBTQ+ employees feel unsupported by HR
Employment Survey: Survey highlights workplace abuse and changing trends in employment
Immigration: Changes to the definition of “small sponsor” will impact some sponsorship fees
Data: ICO publishes new guidance on anonymisation and pseudonymisation
Parental Leave & Pay: Government guidance on statutory neonatal care leave and pay published
New statutory entitlements to neonatal care leave (NCL) and neonatal care pay (SNCP) came into force on 6 April 2025. On 6 April 2025, the government published a suite of new guidance for employees and employers on NCL and SNCP:
Neonatal Care Pay and Leave. A guide for employees explaining entitlement, eligibility, how to claim, employment rights and how to cancel NCL or SNCP.
Statutory Neonatal Care Pay and Leave: employer guide. A guide for employers explaining entitlement, eligibility, employer record-keeping requirements, the financial assistance available to employers to pay SNCP, and the information an employee must provide, their employment rights and how they can cancel NCL or SNCP.
How different employment types affect Statutory Neonatal Care Pay. A guide explaining the different SNCP rules that apply to different types of employees and workers, including agency workers, directors and employees with more than one job with the same employer, or with more than one employer.
Equality: Study finds nearly half of LGBTQ+ employees feel unsupported by HR
On 14 April, website People Management reported that a study carried out by Pride in Leadership, a UK-based LGBTQ+ Leaders’ Community, has revealed that nearly half of LGBTQ+ employees feel unsupported by their employers’ HR departments when facing LGBTQ+-related issues. The survey of 1,017 LGBTQ+ individuals found that 42% of respondents felt that their concerns were “brushed off” by HR, highlighting a significant gap in support and understanding.
The study identified several barriers to LGBTQ+ career advancement, including a lack of inclusive workplace policies, experiences of discrimination and biased recruitment practices. Among the respondents, 85% reported that they have encountered significant obstacles linked to their identity, with a lack of representation in leadership being a major concern. Only 15% of respondents felt that their workplace was a safe space to share their identity.
To address these issues, the study calls for HR departments to take a more proactive approach to create a supportive and inclusive work environment. This includes providing training on LGBTQ+-specific issues, developing and implementing inclusive policies, and promoting diversity and representation in leadership. It also urges employers to actively work to eliminate biased recruitment practices and ensure that hiring processes are transparent and fair.
Equality (Race and Disability) Bill: Government issues equality law call for evidence
On 7 April 2025, the Office for Equality and Opportunity published a call for evidence on equality law. The wide-ranging call for evidence seeks views and evidence on areas the government intends to address in the forthcoming Equality (Race and Disability) Bill. These include extending the equal pay provisions in the Equality Act 2010 (EqA 2010) to race and disability, ensuring that employers cannot outsource services to avoid paying equal pay, improving enforcement of equal pay by setting up a new Equal Pay Regulatory and Enforcement Unit and improving pay transparency by adopting measures similar to those in the Pay Transparency Directive (2023/970/EU).
The government also plans to bring section 14 of the EqA 2010 into force, allowing direct discrimination claims for combined or dual discrimination to be brought in the employment tribunal. It seeks views and evidence on the prevalence of combined discrimination, including how levels and patterns of combined discrimination may differ across different situations, sectors and regions, and the effectiveness of the remedies available. Evidence is also sought in relation to the prevalence of combined discrimination in relation to indirect discrimination, harassment, victimisation, and the protected characteristics of pregnancy and maternity and marriage and civil partnership, which are not currently covered by section 14.
The Employment Rights Bill will introduce the power to make regulations specifying the steps employers must take to prevent workplace sexual harassment. To assist in the drafting of those regulations, evidence is sought on measures employers can take that have proved effective in practice to reduce or prevent workplace sexual harassment. Evidence is also requested in order to assist the government in determining whether protection against sexual harassment should be extended to volunteers.
Views and evidence are also sought on the extent to which the public sector equality duty is complied with by non-public bodies exercising public functions and the effectiveness of the implementation of the socio-economic duty in Scotland and Wales, with a view to commencing the duty in England.
Employment Survey: Survey highlights workplace abuse and changing trends in employment
A survey conducted by academics from Cardiff University, UCL, Nuffield College, Oxford, and the University of Surrey, has highlighted the prevalence of workplace abuse in the UK. The Skills and Employment Survey, which is conducted every six years, found that one in seven employees has experienced some form of workplace abuse, including bullying, violence, and sexual harassment. The survey revealed that some occupations, such as nursing (32%) and teaching (28%), are at higher risk of abuse, with women and night workers also being more vulnerable.
The survey also highlighted the impact of the pandemic on the way we work, with over half of workers using spaces intended for other purposes to carry out their work. The adoption of AI is also accelerating, with 24% of those surveyed using AI in their work. However, the use of AI is concentrated in high-paying, high-skill occupations, and is more prevalent among men, younger workers, and those with a degree.
The survey also found that demand for graduate-level qualifications continues to increase, with almost half of workers needing a degree for their current job. However, the number of workers with graduate-level qualifications has declined slightly. The survey also revealed a changing perception of unions, with over a third of employees in non-unionised organisations saying they would vote to establish a union if given the chance.
The researchers warned of the pitfalls and inequality involved in many employees’ working arrangements, particularly with regards to working from home. While some employees are able to create a home office, others are not, and the survey found that money and power play a significant role in determining who is able to work from home and create a comfortable workspace. The researchers called for policy to focus on promoting all forms of flexible working, rather than just working from home, to address these inequalities.
Immigration: Changes to the definition of “small sponsor” will impact some sponsorship fees
Sponsors who are defined as “small” pay lower fees for Skilled Worker and Senior or Specialist Worker sponsor licence applications and the Immigration Skills Charge (ISC) for these workers’ visa applications.
In defining “small” and “large” sponsors, the Home Office relies on the definition of “small” and “large” companies found in the Companies Act 2006 (section 382), which changed on 6 April 2025. (See also, regulation 2 of the Immigration Skills Charge Regulation 2017 (SI 2017/499).)
The definition of a small company is based on the following three thresholds. If a company exceeds at least two of the three thresholds, it will not be a small company:
Number of employees: 50 (this remained unchanged on 6 April 2025).
Turnover: £15 million (changed from £10.2 million on 6 April 2025).
Balance sheet total: £7.5 million (changed from £5.1 million on 6 April 2025).
If, as a result of this change to the definition of “small company”, the sponsor company’s classification has changed from small to large or vice versa, the sponsor must notify the Home Office within 20 working days using the sponsor management system, to comply with their sponsor reporting duties. The sponsor may need to provide evidence, such as recent company accounts and a list of employees.
Data: ICO publishes new guidance on anonymisation and pseudonymisation
The Information Commissioner’s Office (ICO) has published guidance on anonymisation and pseudonymisation. The ICO notes the risks and benefits of sharing personal data, as well as the importance of anonymisation techniques to provide a privacy-friendly alternative to data sharing.
The ICO guidance provides an overview of anonymisation techniques, including their strengths and weaknesses and the suitability of their use in particular situations, including case studies. The main benefits of anonymisation include protecting people’s identities, greater security and improved risk reduction relating to the disclosure or publication of personal data.
The guidance also covers pseudonymisation, which replaces information that directly identifies people. This might include replacing names or identifiers with resource numbers. The ICO reminds organisations that pseudonymisation should not be confused with anonymisation and that pseudonymisation is a way of reducing risk and improving security but not a way of transforming personal data to the extent the law no longer applies.
The guidance also includes advice on accountability and governance measures for organisations and deals with the role that anonymisation plays in the three regimes of data protection law:
General processing under Part 2 of the Data Protection Act 2018 (DPA 2018) and the UK General Data Protection Regulation (2016/679) (UK GDPR).
Law enforcement processing under Part 3 of the DPA 2018.
Intelligence services processing under Part 4 of the DPA 2018.
The guidance sits alongside the ICO data sharing code of practice, which gives practical advice on how to share personal data in line with data protection law. The ICO notes that anonymisation offers an alternative way to use or share data by making sure that people are not identifiable.
Although the guidance is not statutory and there is no penalty for not following the recommendations, the ICO will take it into account when looking into an issue about anonymisation.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
This month we look at when a whistleblowing claim may be relevant...
News & Views
Employment Law General Update – March 2025
Anne-Marie Pavitt,
26th March 2025
Employment Law
With a new government and budget comes a lot of change. This month we report on changes to immigration rules and fees, the results from an independent report published by the Departments for Work and Pensions and Business and Trade about how we can reduce economic inactivity related to people unable to work due to ill-health and disability, a government consultation on proposed mandatory pay reporting affecting ethnicity and disability, and a government response to an official report on statutory sick pay. Lastly, a new campaign has been launched by ACAS to improve understanding and support for neurodivergent workers, as we become more aware of this element of our workforce.
Immigration: Changes to UK Immigration Rules, and fees increase on 9 April 2025
From 12 March 2025, nationals of Trinidad and Tobago are being classified as “visa nationals”, requiring them to obtain a visa before travelling to the UK.
From 2 April 2025 and 9 April 2025 respectively, certain French children visiting the UK on a school trip and British National (Overseas) nationals will not require Electronic Travel Authorisation prior to travelling to the UK as a visitor.
From 9 April 2025, there will be changes to the minimum salary threshold for some Skilled Workers (increasing from £23,200 a year to £25,000 a year) as well as some sponsorship protection introduced for care workers and senior care workers.
From 9 April 2025, there will be restrictions on permitted salary reductions for Skilled Workers.
In January 2025, the government announced its intention to raise immigration fees and charges . The Immigration, Nationality and Passport (Fees) (Amendment) Regulations 2025 (SI 2025/363) have now been passed. Consequently, the Home Office has published details of the new immigration fees, which take effect at 9.00 am on 9 April 2025. Most visa application fees are due to increase by approximately 5 to 10%. The most notable changes include:
The Certificate of Sponsorship (CoS) fee under the Skilled Worker, T2 Minister of Religion, Global Business Mobility – Senior or Specialist Worker and International Sportsperson routes will increase by almost 120% from £239 to £525. Where possible, sponsors may wish to assign a CoS prior to 9 April 2025 to avoid this increase.
The Electronic Travel Authorisation (ETA) fee is rising from £10 to £16.
Naturalisation as a British citizen will increase from £1,500 to £1,605. The sponsor licence application fee will also increase from £1,476 to £1,579 (for large sponsors) and from £536 to £574 (for small sponsors).
On 20 March 2025, the Departments for Work and Pensions and Business and Trade published an independent report, Keep Britain Working Review: Discovery. It is the first stage in Sir Charlie Mayfield’s review of economic inactivity due to ill-health and disability. The review will consider what can be done to address this inactivity, and to support people back into work and to stay in work. The report, which sets out how economic inactivity is viewed and the issues that may need to be addressed to improve it, will be followed by an engagement phase focusing on prevention and pathways back to work (running until the end of May 2025) and then recommendations to the government.
The report notes that the UK appears to be the only advanced economy where economic inactivity is increasing, with 40% more people of working age economically inactive for health reasons than there were in 2019. The growth in the number of people who are becoming economically inactive for health reasons is nearly ten times the growth of the working age population. The largest increases were observed among younger people (aged 16 to 34), with an increase of 1.2 million or 77%. Nearly one in four people out of work due to ill-health are under 35.
The report identifies three areas that are likely to be the focus of future recommendations:
Employer incentives. At critical moments in managing absence, incentives for employers to retain employees are muddled or misaligned between employers and employees.
Interventions. When individuals face ill-health, fluctuating conditions or work barriers, there is often a delay before they access effective support and treatment (especially related to mental health). This leads to deterioration in outcomes and longer periods out of work, as well as early exits.
Case management. When individuals are absent from work because of ill-health or disability, there is often little in the way of effective case management or leadership.
The report also highlights five principles underpinning effective labour market design: strong employer incentives for prevention and retention, early intervention and structured return-to-work support, sufficient support during sickness while maintaining a dynamic labour market, alignment between government and employer roles, and minimising structural barriers to re-employment.
In developing its recommendations, the review will reflect on the reform options being considered as part of the White Paper, Get Britain Working.
The review’s recommendations are expected in autumn 2025.
Equality (Race and Disability) Bill: Government issues consultation on mandatory ethnicity and disability pay reporting for large employers
On 18 March 2025, the government published a consultation on how to introduce mandatory ethnicity and disability pay gap reporting for employers with 250 or more employees, in line with its manifesto commitment.
The government proposes using a similar framework to that already in place for gender pay gap reporting. The same employers would fall within scope, the same six measures of pay would be reported and the same snapshot and reporting dates would be used. However, employers would also be required to report the overall breakdown of their workforce by ethnicity and disability, and the percentage of employees not disclosing their data. Large public bodies may be required to publish additional information on ethnicity, including pay differences by grade or recruitment, retention and progression data. Views are sought on whether employers should also be required to produce action plans.
In contrast to gender pay gap reporting, employees would be asked to self-report their ethnicity and disability status, with an option to opt out. The government proposes using standardised ethnicity groupings. Given data protection considerations, it proposes a minimum of ten employees in any ethnic group being analysed. Smaller groups may need to be aggregated. It is proposed that all employers should report, at a minimum, a binary comparison, preferably between White British employees and all other ethnic minority groups combined. Similarly, with disability reporting, a minimum of ten employees must fall in each group being compared. To avoid the risk of individual identification and the complexities of multiple impairments, the government proposes that disability reporting should take a binary approach of only reporting differences between disabled and non-disabled employees, rather than by type of impairment.
Alongside the new consultation, the government published the findings of the disability workforce reporting consultation carried out by the previous Conservative government in 2021-22. The findings had not previously been published. The consultation showed strong support among both employers and employees for the mandatory collection of disability workforce data by large employers. However, there were concerns, mainly from employee respondents, that reporting would become a tick-box exercise, with no real impact, and that employees may feel forced to self-disclose personal data.
The consultation closes on 10 June 2025. The findings of the two consultations, as well as a forthcoming call for evidence, will inform the government’s approach to the draft Equality (Race and Disability) Bill, to be published in the current parliamentary session.
Statutory Sick Pay: Government responds to Work and Pensions Committee report
On 14 March 2025, the government responded to a report published by the House of Commons Work and Pensions Committee (the Committee). The report was published in March 2024 under the previous Conservative government and had called for a substantial overhaul of the statutory sick pay (SSP) framework ahead of the 2025-26 financial year.
Some of the Committee’s recommendations will be addressed by changes to SSP being made by the Employment Rights Bill (ERB). Removal of the current three-day waiting period will assist with phased returns to work (because SSP will be payable for single days of sickness absence). The lower earnings limit (LEL) for SSP eligibility will be removed. People earning below the current rate of SSP will receive 80% of their normal weekly earnings. The government will update guidance to account for these changes and, as part of this, will seek to clarify the operation of SSP for agency workers.
Contrary to the Committee’s recommendation, the government will not equalise the rate of SSP with the flat rate of statutory maternity pay (SMP). It reasoned that SSP and SMP are paid for different reasons. Employers can plan for maternity leave absences (because they receive at least 15 weeks’ notice) and they can claim back up to 92% of SMP, with those qualifying for Small Employers’ Relief claiming back up to 103% of their SMP payments. In contrast, employers pay the full cost of SSP. Modelling by the Department for Work and Pensions (DWP) estimates that equalising SSP with the rate of SMP would cost businesses an additional £500 million per year when they already face the cost of removing the waiting period and LEL.
Declining to accept the recommendation for a small business rebate for SSP, the government suggested that having responsibility for sick pay encouraged employers to support employees to return to work. The forthcoming review, Keep Britain Working, will consider how employers can be supported in promoting healthy workplaces that enable people to stay in, or return to, work. The Percentage Threshold Scheme, which had provided rebates in certain circumstances until its removal in 2014, had been administratively complex and underused.
ACAS: Campaign launched to improve understanding and support for neurodivergent workers
On 20 March 2025, ACAS launched a campaign to improve understanding and support for neurodivergent workers. The campaign will equip employers with resources and advice to help foster a culture of belonging, where neurodivergent workers can thrive.
The focus of the campaign will be on practical steps employers can take to make work environments more accessible. These will include:
Inclusive hiring practices. Ensuring recruitment processes accommodate different cognitive styles.
Reasonable adjustments. Providing tailored support, such as flexible work arrangements and assistive technology.
Workplace awareness. Educating employers and staff about neurodivergence to reduce stigma and increase understanding.
Alongside the campaign, the Department for Work and Pensions has formed a new expert panel on neurodiversity and employment. The panel is set to examine employment outcomes for neurodivergent people. Running until the summer of 2025, it is expected to provide evidence-based recommendations to inform workplace practices and policy. The panel will consider all types of neurodivergence. It will also explore key barriers to employment and workplace success, effective employer actions to enhance inclusion, government policies that could drive systemic change, the economic benefits that are linked to greater neurodiversity in the workforce, and intersectionality (including how social deprivation, gender and ethnicity impact neurodivergent employment outcomes).
ACAS states that employers should prepare for, among other things, better accountability in ensuring that recruitment and workplace policies support neurodivergent people, more practical guidance, and a stronger evidence base to underpin the benefits of neuroinclusive practices.
The campaign launch and panel formation follow the recent publication of ACAS advice on neurodiversity and a report by researchers at Birkbeck, University of London.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
Prior to its success in the general election that took place on 4 July 2024, the Labour Party proposed wide-ranging and fundamental reform of employment law. It promised that several of its reforms would be contained in an Employment Rights Bill (ERB), which was introduced on 10 October 2024.
Together with the draft ERB, on 10 October 2024, the government published a policy paper, Next Steps to Make Work Pay (Next Steps paper), which set out the steps the government intends to take following the publication of the ERB. It confirms that further detail on many of the policies contained in the ERB will be provided through partnership with business, workers and trade unions, regulations, and in some cases codes of practice, after the ERB has received Royal Assent, which is expected to be in 2025.
The ERB makes provision for wide-ranging changes to be made to employment law, including in relation to unfair dismissal, fire and rehire, collective redundancies, zero hours and low hours contracts, trade unions and industrial action, sexual harassment and third-party harassment, statutory sick pay (SSP), flexible working and family leave. In October 2024, the government published four consultations as part of its first phase of consulting relevant stakeholders. Further consultations are expected in 2025, which will deal with matters to be included in supporting regulations.
The existing right to two weeks’ parental bereavement leave following the death of a child under 18 or a stillbirth will be extended to be an entitlement to more general “bereavement leave”, which will apply to the loss of a wider group of persons (clause 14, ERB). Like the current provision for parental bereavement leave, bereavement leave will be a day-one right. Regulations will specify the relationships with a person who has died that will qualify an employee to take bereavement leave, and the government will consult on the details to be set out in secondary legislation.
The ERB strengthens redundancy rights and protections by removing the “at one establishment” test for collective redundancies, meaning that the threshold of 20 or more redundancies will be met when that number is impacted across the entire business, rather than at one site. This will increase the obligations on multi-site employers to collectively consult and will require them to keep rolling records of redundancies proposed across their multiple sites. In addition, the government is consulting about raising the current level of the protective award from 90 to 180 days’ pay, or to an uncapped amount and allowing employees to claim interim relief where they have a claim for a protective award or a claim for unfair dismissal in a fire and rehire scenario. During 2025, the government also plans to consult on increasing the minimum collective consultation period when an employer is proposing to dismiss 100 or more employees from 45 to 90 days.
The practice of fire and rehire has received widespread negative press coverage in recent years following a number of high-profile cases. These include the dismissal of almost 800 employees by P&O Ferries in 2022, to be replaced by lower-paid agency staff, and also a case where Tesco (unsuccessfully) sought to use the practice to overturn preferential pay rates it had agreed on a “permanent” basis with staff who agreed to relocate.
The ERB would restrict the ability of an employer to use dismissal and re-engagement (known as “fire and rehire”) as a lawful means of changing an employee’s contractual terms, save where there is genuinely no alternative, due to financial difficulties which threaten the employer’s ability to carry on business as a going concern. It does this by making any dismissal automatically unfair where the reason for dismissal is that the employee did not agree to the employer’s attempt to vary their terms and conditions, or because they intended to employ another person to carry out substantially the same role. On 21 October 2024, the government published a consultation on strengthening the remedies against abuse of the fire and rehire and collective consultation rules (see above). The consultation closed on 2 December 2024.
It is not clear what the government’s intentions are with regard to the Statutory Code of Practice on Dismissal and Re-engagement which was introduced under the previous Conservative government but only came into force on 18 July 2024. Despite its previous strong criticisms of the Code as being “inadequate”, it remains in force for now. It is possible that the government still intends to replace the Code with another one containing more stringent obligations on employers, as envisaged in the Plan to Make Work Pay, although any new Code of Practice would need to be consulted on before it could receive parliamentary approval.
Future regulations made under clause 26 of the ERB will require employers with 250 employees or more to develop and publish equality action plans showing what steps they are taking in relation to prescribed matters related to gender equality and to publish prescribed information relating to their plans.
Matters relating to gender equality will be those concerning the advancement of equality between male and female employees and will include addressing the gender pay gap and supporting employees going through the menopause. In November 2024, proposed amendments to the ERB were published which will be considered by the Public Bill Committee. An amendment proposed by the government would require employers to include an explanation in their equality action plans on how they are supporting employees with menstrual problems and menstrual disorders.
The government will consult the Equalities and Human Rights Commission (EHRC) on the content of the regulations before they are published.
The ERB contains provisions permitting the Secretary of State to delegate their labour market enforcement functions to a public authority and to appoint enforcement officers. The Next Steps paper confirms that this will be the new Fair Work Agency (FWA), which will bring together the existing enforcement functions of HMRC (in relation to the national minimum wage (NMW)), the Employment Agency Standards Inspectorate (EASI) and the Gangmasters and Labour Abuse Authority (GLAA). The introduction of a single enforcement body has long been on the cards and was one of the government’s key manifesto pledges. However, whether the FWA succeeds in improving enforcement is likely to depend on the level of financial resources it is allocated, which is not yet clear. It is not yet known when the FWA will be established, although it is likely to be a number of years before it is fully operational.
Paternity leave and unpaid parental leave will become a day-one right for eligible employees. The government also stated in the Next Steps paper that it intends to make it unlawful to dismiss employees who have been pregnant within six months of their return to work, except in specific circumstances. Regulations are awaited to define what these specific circumstances will be. The government also stated in the Plan to Make Work Pay that it would conduct a review of the current parental leave system during the first year of the Labour government, so this is expected by July 2025.
The existing day-one right to request flexible working under Part VIIIA of the ERA 1996 (sections 80F to 80I) (as amended) together with the Flexible Working Regulations 2014 (SI 2014/1398) (Flexible Working Regulations) (as amended) will remain, but the ERB will introduce a reasonableness test into the regime, providing that employers will only be able to rely on one of the statutory reasons to refuse a request for flexible working where it is “reasonable for the employer to refuse the application on that ground or those grounds”. In addition, employers will be required to state and explain what the ground for any refusal is and why the refusal is considered reasonable. The Next Steps paper confirmed that there will be a consultation to develop the detail of the approach to be taken on flexible working.
The ERB will amend section 40A of the EqA 2010 to require employers to take “all reasonable steps” to prevent sexual harassment, reflecting the wording originally contained in the Worker Protection Bill. Currently, employers are required to take reasonable steps to prevent sexual harassment of their employees during the course of their employment under the Worker Protection (Amendment of Equality Act 2010) Act 2023, which came into force on 26 October 2024. Employers will also be under a duty to take “all reasonable steps” to prevent third-party sexual harassment, and to prevent third-party harassment in relation to the other relevant protected characteristics.
In addition, the ERB will amend the whistleblowing provisions of the ERA 1996 to make it clear that reporting sexual harassment will amount to a qualifying disclosure.
The ERB provides employees with the right to SSP from the first sick day rather than from the fourth day and removes the requirement for the employee’s earnings to be not less than the lower earnings limit to be eligible for SSP.
On 21 October 2024, the government published a consultation on SSP. The consultation, which closed on 4 December 2024, sought views on what the percentage of average weekly earnings should be for the purposes of calculating the rate of SSP for some low-earning employees.
The ERB will repeal the Strikes (Minimum Service Levels) Act 2023. While nearly all of the restrictions placed on industrial action and picketing by the Trade Union Act 2016 will be removed, the time-limited mandate for industrial action following a ballot will remain. The ERB will introduce the right to a statement of trade union rights and the right for trade unions to access workplaces, it will simplify the rules on trade union recognition, introduce protection against detriment for taking industrial action and increase protection against dismissal for taking industrial action. These are summarised below.
The Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992) will be amended to require employers to give workers a written statement advising that they have the right to join a trade union at the same time as providing the worker’s section 1 statement and at other prescribed times.
Unrecognised unions will be provided with the opportunity to recruit and organise within a workplace with the aim of gaining recognition. Trade unions and employers will be able to enter “access agreements” providing union officials with access to the employer’s workplace for the purposes of meeting, representing, recruiting or organising workers, or facilitating collective bargaining (but expressly not to organise industrial action). The union may apply to the Central Arbitration Committee (CAC) to determine workplace access if the employer fails to respond to its request for an access agreement. Either party may make an application where negotiations are unsuccessful.
The statutory scheme for trade union recognition set out in Schedule A1 to TULRCA 1992 will be amended to:
Enable the 10% membership threshold for the CAC to accept a trade union recognition application (and at other stages of the recognition scheme) to be reduced to between 2% and 10%.
Remove the requirement at the application stage (and at other stages of the recognition scheme) for a union to demonstrate that there is likely to be majority support for trade union recognition.
Remove the 40% support threshold from recognition ballots.
Protection against detriment for taking industrial action
TULRCA 1992 will be amended to provide workers with the right not to be subjected to detriment of a prescribed description by any act (or any deliberate failure to act) by their employer, if the act (or failure) takes place for the sole or main purpose of preventing or deterring the worker from taking protected industrial action, or penalising the worker for doing so.
TULRCA 1992 will be amended to provided that for the full duration of an official, lawful strike and after that strike has concluded, an employee will be automatically unfairly dismissed where the reason (or, if more than one, the principal reason) for the dismissal is that the employee took such protected industrial action.
The government’s consultation, Making Work Pay: creating a modern framework for industrial relations, which closed on 2 December 2024, sought views on strengthening provisions to prevent unfair practices during trade union recognition, simplifying industrial action ballots, reducing notice of industrial action, extending the permitted duration of industrial action, updating the law on repudiation of industrial action and on prior call, and on enforcement of the trade union right to access workplaces.
In a set of amendments to the ERB published in November 2024, the government confirmed that it would extend the time limits for bringing all tribunal claims from three to six months. It is not yet clear when this measure will take effect.
Under the ERB, the right to bring a claim for unfair dismissal will become a day-one right for employees, subject to a new modified “light-touch” dismissal procedure applicable in most cases during an initial period of employment, which will be set by regulations but must be between three and nine months. It removes the two-year qualifying period for ordinary unfair dismissal protection by repealing section 108 of the Employment Rights Act 1996 (ERA 1996). Much of the detail will be contained in regulations and is as yet unknown, but this will represent a hugely significant change in the unfair dismissal landscape. To allow for full consultation and a substantial period for employers to prepare and adapt, the unfair dismissal reforms will take effect no sooner than autumn 2026.
In November 2024, proposed amendments to the ERB were published which are being considered by the Public Bill Committee. A government amendment will allow the Secretary of State to specify a cap on the compensatory award for employees unfairly dismissed during the initial period of employment provided for in the ERB.
Employee representative bodies and trade unions have long condemned the use of zero hours contracts as a means of abusing vulnerable, low-income workers, and providing no job security, rights or guaranteed income. There is very limited protection for workers on such contracts. The ERB will introduce a duty on employers to offer a guaranteed hours contract that reflects the hours qualifying workers regularly work over a reference period (to be specified in regulations, but the government suggested in the Next Steps paper that in its view it should be 12 weeks). The ERB also places a duty on employers to provide reasonable notice of shifts, with workers being entitled to compensation if their shift is cancelled, moved or curtailed at short notice.
On 21 October 2024, the government published a consultation on the application of the zero hours contracts provisions to agency workers. The consultation, which closed on 2 December 2024, explored who should be responsible for offering guaranteed hours to eligible workers: the agency or the hirer. The government notes that a difficulty of making agencies responsible is that they have little or no control, since the demand for hours is largely dictated by hirer. Hirers would, therefore, be in a better position to forecast and manage the flow of work. However, requiring hirers to offer guaranteed hours might effectively make them the agency worker’s employer.
In November 2024, proposed amendments to the ERB were published which are being considered by the Public Bill Committee. Substantial government amendments were put forward in relation to zero hours and “low hours” contracts, including new requirements for employers to take reasonable steps to ensure that workers are given specified information in relation to their rights to guaranteed hours during an “initial information period” and to give workers a notice where they consider an exception to the duty to make a guaranteed hours offer applies, or where a guaranteed hours offer that has been made is treated as having been withdrawn.
A draft Equality (Race and Disability) Bill (Race and Disability Bill) was announced in the King’s Speech 2024, to be led by the Government Equalities Office (GEO). It will be published in draft form for consultation and deliver Labour’s manifesto commitment to “enshrine the full right to equal pay in law” for ethnic minorities and disabled people. There is expected to be significant consultation on the draft Race and Disability Bill and so it is anticipated that it will progress more slowly than the ERB.
The Race and Disability Bill will tackle two main issues:
Enshrine in law the full right to equal pay for ethnic minorities and disabled people. This will make it easier for them to bring unequal pay claims, given the existing barriers when bringing pay discrimination claims on the grounds of ethnicity or disability.
Introduce mandatory ethnicity and disability pay reporting for employers with 250 or more employees. This will help to close the ethnicity and disability pay gaps, enabling employers to constructively consider why they exist and how to tackle them.
The Next steps paper also states that the government will create a new regulatory enforcement unit for equal pay.
The Neonatal Care (Leave and Pay) Act 2023 received Royal Assent in May 2023 and was expected to come into force in April 2025 under the previous Conservative government. The government has confirmed this will come into effect on 6 April 2025. HMRC has published a policy paper on the tax treatment of statutory Neonatal Care Pay (see HMRC: Income Tax: tax treatment of Statutory Neonatal Care Pay). The Act will introduce statutory neonatal leave and pay for up to 12 weeks for parents of babies requiring neonatal care, which must be taken within 68 weeks of birth.
The Plan to Make Work Pay stated that a new “right to switch off” would be introduced, providing workers with the right to disconnect from work outside of working hours and not be contacted by their employer. This would follow similar models to those that are already in place in Ireland and Belgium, giving workers and employers the opportunity to have constructive conversations and work together on bespoke workplace policies or contractual terms that benefit both parties.
There is nothing on this new right in the ERB, and in the Next steps paper, the government confirmed that it would take forward the right to switch off through a statutory Code of Practice. It is expected that a consultation on the new code of practice will be issued in 2025.
Gender identity is a highly charged issue with polarised views about, on the one hand, a transgender person’s right to have their identity recognised, and on the other hand, so-called “gender critical beliefs” that a person’s sex is an immutable biological fact and that someone’s gender is different from their sex.
Recent case law has recognised gender critical beliefs as being capable of protection under the Equality Act 2010 (EqA 2010) as a philosophical belief (Bailey v Stonewall and others ET/2202172/2020). This provides scope for conflict with other protected characteristics under the EqA 2010, including the protected characteristic of gender reassignment (Fischer v London United Busways Ltd ET/2300846/2021), and poses a challenge for employers who are responsible for preventing discrimination and harassment in the workplace. In For Women Scotland Ltd v Scottish Ministers, the Inner House of the Court of Session confirmed that the definition of “woman” in section 212(1) of the Equality Act 2010 includes trans women with a gender recognition certificate. The case has been appealed and was heard by the Supreme Court on 26 and 27 November 2024.
In May 2024, the Minister for Women and Equalities issued a “call for input” seeking examples of policies or guidance issued by public bodies, or those that advise public and private organisations, which might wrongly suggest that people without a gender recognition certificate (GRC) have a legal right to access single-sex spaces and services according to their self-identified gender. The call for input on incorrect guidance on single-sex spaces closed on 26 June 2024.
Modern workplaces are increasingly receptive to and reliant on tools powered by artificial intelligence (AI) such as machine learning, GenAI and automated decision-making to perform certain human resources and employee management functions. In addition, the development of GenAI applications, which can be used to perform a variety of work-related tasks, means that AI is more accessible to the workforce than in the past.
In terms of reform in this area, the government’s Next Steps paper, promised that a consultation would be issued on how to implement measures on surveillance technologies and negotiations with trade unions and staff representatives.
Prior to this, the King’s speech, which was delivered in July 2024, announced that the government:
“… will seek to establish the appropriate legislation to place requirements on those working to develop the most powerful artificial intelligence models”.
Labour’s manifesto (Labour: Change), published in June 2024, promised that Labour would create a new Regulatory Innovation Office, bringing together existing functions across government, to help regulators update regulation and to co-ordinate issues that span different sectors, as it considers that regulators are currently ill-equipped to deal with the dramatic development of new technologies. It also promised to ensure the safe development and use of AI models by introducing binding regulation on the companies developing the most powerful AI models.
Labour’s Plan to Make Work Pay, noted that new technologies such as AI have the potential for positive change, including boosting wages, improving productivity and empowering workers. However, given the risks posed, Labour’s approach will be to protect good jobs and ensure good future jobs. It plans to put in place appropriate rights and protections to keep pace with technological change, while safeguarding against discrimination. At a minimum, Labour stated that it will ensure that proposals by employers to introduce surveillance technologies will be subject to consultation and negotiation, with a view to reaching agreement with trade unions or elected staff representatives. This would not override the provisions of any collective agreement relating to surveillance.
Labour’s New Deal green paper, which was first published in September 2021, had previously stated that proposals by an employer to introduce surveillance technologies would be subject to consultation and agreement by trade unions or elected staff representatives, although it was subsequently reported that this new “right” could be implemented by way of best practice advice or secondary legislation, in a perceived watering down of the original pledge.
The EU is taking a more interventionist approach than the UK. A new Regulation, the EU AI Act, was formally adopted by the Council of the EU on 21 May 2024. The EU AI Act applies to public and private actors inside and outside the EU if the AI system affects individuals in the EU, and categorises AI systems into risk levels.
The Platform Workers Directive entered into force on 1 December 2024. Member states will have two years to incorporate the provisions of the Directive into their national legislation. The Directive provides new rights aimed at promoting transparency, fairness and accountability in algorithmic management used in platform work.
Due to the increasing use of AI in the workplace, there is a greater need to assess and manage the associated risks. In March and November 2024, new guidance was published by the government and the ICO specifically aimed at AI use in the HR and recruitment sectors. There are several actions that an employer can take to mitigate the risks, such as undertaking risk assessments and carrying out due diligence with suppliers of AI systems.
From 31 December 2024, the sponsor licence guidance was updated to prohibit Skilled Worker sponsors from passing on the cost of the sponsor licence fee or associated administrative costs or the Certificate of Sponsorship (CoS) fee (for CoS assigned on or after 31 December 2024). Back to the top
Further Information
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
This month we look at when a whistleblowing claim may be relevant...
News & Views
Employment Law General Update – December 2024
Employment,
17th December 2024
Employment Law
This month sees an emphasis on Equality through a landmark equal pay agreement, a follow up to the Sexism in the City inquiry and a further inquiry into how paternity and shared parental leave in the workplace can actually work. Meanwhile, the CIPD has carried out research which finds our systems are currently failing to help young people prepare for working life. And lastly, a warning change to compensation levels where the statutory Code of Practice on Dismissal and Re-engagement should be involved and some changes to the tribunal procedures.
Equality: Equal pay deal reached for thousands of women in Birmingham
Equality: HM Treasury, PRA and FCA respond to Treasury Committee questions about Sexism in the City inquiry recommendations
Parental Leave: Women and Equalities Committee launches inquiry into paternity and shared parental leave
Workforce: CIPD research finds half of employers believe young people are not ‘job ready’
Tribunals: Failure to follow code of practice on dismissal and re-engagement has compensation consequences effective from 20 January 2025
Tribunal Procedure: Changes to Employment Tribunal Procedure Rules from 6 January 2025
Equality: Equal pay deal reached for thousands of women in Birmingham
The BBC reported on 10 December that Birmingham City Council has reached a settlement with 6,000 staff members, mostly women, to end a long-standing dispute over pay inequality, with settlement payouts to be made after years of negotiations.
Birmingham City Council has reached a settlement with thousands of women in relation to their long-standing equal pay claims. The agreement, reached with the Unison and GMB unions, will see 6,000 staff members receive settlement payouts, bringing an end to the litigation that has run for many years. The issue of equal pay has been a major challenge for the council, with a bill of £760 million initially estimated to settle the claims. However, after several years of negotiations, a confidential agreement has been reached, which will be formally approved by the council’s cabinet on 17 December 2024.
The dispute centred around claims that staff in female-dominated roles, such as teaching assistants, have historically been underpaid compared to those in male-dominated positions. The GMB union has said that the settlement is a “significant step towards pay justice”. The settlement will also be a significant step forward for the council, which is reported to have paid out almost £1.1 billion in equal pay claims since 2012.
Equality: HM Treasury, PRA and FCA respond to Treasury Committee questions about Sexism in the City inquiry recommendations
The House of Commons Treasury Committee has published letters containing responses from HM Treasury, the PRA (Prudential Regulation Authority) and the FCA (Financial Conduct Authority) relating to progress made against the recommendations set out in its report following its “Sexism in the City” inquiry.
On 10 December 2024, the House of Commons Treasury Committee published the following letters relating to its “Sexism in the City” inquiry, which provide information on progress made against its recommendations:
FCA (dated 29 November 2024). The FCA has prioritised work on the link between non-financial misconduct (NFM) and its rulebook and intends to publish a final policy statement on NFM in early 2025. The FCA is working through the large volume of feedback that it received on proposals relating to data collection and target setting and intends to set out next steps jointly with the PRA in Q2 2025. It is exploring ways in which diversity and inclusion (D&I) reporting might be simplified and more joined up. In 2025, the FCA plans to strengthen its messaging to whistleblowers and better promote whistleblowing reporting channels. This will include providing clearer guidance for whistleblowers who are impacted by a non-disclosure agreement, but who wish to report to the FCA. The FCA also comments on how it uses whistleblowing data and the introduction of a new approach to final feedback to whistleblowers.
PRA (dated 2 December 2024). The PRA acknowledges that developments in government policy (such as proposals for gender equality action plans and the plan for broadened pay gap reporting) may have an impact on its reporting and target setting proposals. It also comments on the removal of the bonus cap, reiterating the PRA and FCA expectation that firms should take care to avoid adverse impacts on pay gaps. The PRA states it will seek to review the impact of the bonus cap policy and whether it has affected gender pay gaps when sufficient evidence is available.
HM Treasury (dated 9 December 2024). HM Treasury’s letter focuses on priorities for supporting the development of women in the financial services sector. It refers to the Women in Finance Charter, which will retain its focus on senior management.
The letters respond to requests for information sent by Dame Meg Hillier MP, Chair of the Treasury Committee.
Parental Leave: Women and Equalities Committee launches inquiry into paternity and shared parental leave
The House of Commons Women and Equalities Committee launched an inquiry to examine options for reform of paternity and shared parental leave, and is conducting a call for evidence which lasts until 31 January 2025.
The Women and Equalities Committee (WEC), a Commons Select Committee, launched the inquiry into paternity rights and shared parental leave (SPL) on 6 December. The WEC believes that unequal division of childcaring responsibilities is a key driver of wider gender inequality and the gender pay gap. It wishes to examine options for reform of SPL and paternity leave with the aim of identifying the most effective ways of incentivising more equal sharing of childcare and wider domestic responsibilities between mothers and their partners.
The UK Parliament reports that: “MPs on the cross-party committee, chaired by Labour MP Sarah Owen, are seeking views on the schemes, via WEC’s inquiry page and through a survey, to help inform their work ahead of the Government’s proposed review of the parental leave system. The call for evidence forms part of WEC’s umbrella inquiry into Equality at work.
The Government has set out measures in the Employment Rights Bill to enhance family-friendly rights at work but has stopped short of fundamental changes to maternity, paternity, and shared parental leave and pay.
Instead, it has acknowledged that ‘the current parental leave system does not support working parents’ and has committed to conduct a ‘full review’ as the first stage of longer-term reform. Unequal division of childcaring responsibilities is a key driver of wider gender inequality and the gender pay gap.”
The WEC is conducting a call for evidence which lasts until 31 January 2025. Submissions are specifically requested on any of the following matters:
The extent to which SPL has given parents choice and flexibility in how they share parenting responsibilities.
The longer-term equality impacts and labour market impacts of SPL, particularly for women.
Reasons for low take-up of SPL and possible solutions.
Addressing inequalities in SPL take-up (including inequalities related to ethnicity, income, education and occupational status).
Alternatives to the current “maternal transfer” model of SPL.
Lessons from other countries.
A government evaluation of SPL in 2023 revealed very low uptake. A more recent analysis by campaign group The Dad Shift has highlighted that SPL uptake is heavily skewed against lower earning families.
Workforce:CIPD research finds half of employers believe young people are not ‘job ready’
Reported by People Management on 4 December 2024, apparently half (52 per cent) of UK employers say young people entering the workforce are generally not ‘job ready’, citing significant gaps in workplace skills and social adaptability, according to a new study from the CIPD. The Changing face of the youth labour market report also revealed that just over a quarter of employers (28 per cent) that hired a young person aged 16-24 in the past year felt they were well prepared for the demands of the workplace. Among the most significant challenges identified by employers were behavioural issues, with 71 per cent stating young people often did not know how to behave in professional settings. Similarly, 64 per cent of employers said young workers “lack important social skills”, while a third (34 per cent) identified communication difficulties as a key barrier to success.
Employers also noted differences in managing young workers compared to previous generations, with more than half (56 per cent) saying young workers were harder to manage. This generational shift has heightened the need for policies and initiatives to better prepare young people for the realities of working life.
The report highlighted a dramatic decline in opportunities for young people to combine earning and learning, which has significantly impacted their readiness for work. Despite government efforts to promote apprenticeships, just 6 per cent of 16 to 24 year olds are currently participating in one – a figure that has not changed in 20 years. In 2024, only 20 per cent of 16 to 17 year olds were combining earning and learning, down from 42 per cent in 1997, while, for 18 to 24 year olds, the figure dropped to 34 per cent from 40 per cent over the same period. Furthermore, the number of 16 to 24 year olds who had never held a job, excluding seasonal or holiday work, has risen by nearly a third over the past two decades.
To address these issues, the CIPD is calling on the government to introduce an apprenticeship guarantee for all 16 to 24 year olds. This initiative, which is supported by nearly 90 per cent of employers according to previous CIPD research, aims to create more vocational routes into employment while helping young people build crucial workplace skills such as communication, teamwork and problem solving.
Tribunals: Failure to follow code of practice on dismissal and re-engagement has compensation consequences effective from 20 January 2025
The Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment of Schedule A2) Order 2024 (SI 1272/2024) has been made and is due to come into force on 20 January 2025. Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992) gives an employment tribunal power to increase or reduce any award it makes by up to 25% for any unreasonable failure to comply with the provisions of a relevant statutory code of practice in respect of any of the heads of claims listed in Schedule A2 to TULRCA 1992. The Order, which was published in draft in October 2024, amends Schedule A2 to add section 189 of TULRCA 1992 to take account of the statutory Code of Practice on Dismissal and Re-engagement (Code).
The effect of the order is that, if a successful claim is brought under section 189 of TULRCA 1992 for a protective award, an employment tribunal can increase or reduce any award by up to 25% if a party has unreasonably failed to comply with the Code or another applicable code of practice.
Tribunal Procedure: Changes to Employment Tribunal Procedure Rules from 6 January 2025
On 6 December 2024, the Employment Tribunal Procedure Rules 2024 (SI 2024/1155) (‘ETPR’) and the Employment Tribunals (Procedure Rules) (Consequential Amendments) Regulations 2024 (SI 2024/1156) (‘Amendment Regulations’) were laid before Parliament. The Amendment Regulations will remove the current ET Rules from Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237) (‘ET Regulations’) and bring the ETPR into force in their place on 6 January 2025.
The ETPR introduce two new rules to give the tribunal greater flexibility to delegate functions of a judicial nature to legal officers (rule 7), and expressly give the Presidents of the tribunals the power to prescribe claim and response forms by Practice Directions, instead of the Secretary of State (rule 9). Amendments have also been made to the following rules:
Rule 42 (replacing current rule 42): clarifying when the tribunal will consider written representations.
Rule 49 (replacing current rule 50): confirming that the tribunal may order the redaction of personal details, including addresses, from the claim and response forms and other documents.
Rule 58 (replacing current rule 60): clarifying that decisions made by legal officers without a hearing should identify the legal officer who made the decision.
Rules 59 and 60 (replacing current rules 61 and 62): replacing the requirement for the written records and written reasons of tribunal decisions to be signed by an employment judge with a requirement that they be approved by the presiding member.
Rule 98 (replacing current rule 99): allowing the Vice President, in addition to the President, in Scotland to be able to consent to the transfer of a case to Scotland.
The rules relating to fees in the current ET Rules have not been replicated in the ETPR. The national security rules of procedure and the equal value rules of procedure, currently contained within schedules 2 and 3 of the ET Regulations, are replicated as schedule 1 and 2 to the ETPR respectively.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
This month we look at when a whistleblowing claim may be relevant...
News & Views
Employment Law General Update – October 2024
Anne-Marie Pavitt,
30th October 2024
Employment Law
Big changes are afoot this month with the introduction of the new Labour government’s Employment Rights Bill, aiming to fix problems perceived by the Labour party during their long stint in opposition, such as addressing one-sided flexibility, supporting more family friendly rights and prioritising fairness, equality and wellbeing of workers, ensuring fair pay, modernising trade union legislation and improving enforcement of employment rights. Consultation over the Bill will start now and continue in 2025, with the aim to implement the changes in 2026. We also bring you updates on sexual harassment, proposed employment rights for parents of still-born children and those born prematurely, guidance on the new Tipping Act, and a change in equality office.
Legislation: Government publishes Employment Rights Bill
Protection at Work: The Worker Protection (Amendment of Equality Act 2010) Act 2023 to comes into force on 26 October 2024 and EHRC updates its harassment guidance and publishes eight-step guide for employers on preventing sexual harassment at work
Parents: New private members’ bill on Still-Birth and leave for Neo-natal care
Pay: New Tipping Act and supplementary Code of Practice comes into force – guidance available
Equality: Office for Equality and Opportunity replaces the Equality Hub
Legislation: Government publishes Employment Rights Bill
Background: In September 2021, the Labour Party first introduced its plan for working people in its ‘A new deal for working people’, launched at the Labour Party Conference. The document underwent several iterations, with the final version, Labour’s Plan to make work pay: Delivering a new deal for working people (New Deal), published just prior to the release of the manifesto in June 2024. The Labour Manifesto reiterated a number of the promises set out in the New Deal document and stated that the New Deal would be implemented in full within the first 100 days of the Labour government. The King’s Speech on 17 July 2024 confirmed that Labour’s plans would be implemented through the Employment Rights Bill 2024 (Bill) and the Equality (Race and Disability) Bill 2024. The Employment Rights Bill 2024 was published on 10 October 2024.
When will the Bill come into force? Commencement regulations will be required to bring provisions into force, with the exception of provisions on trade unions and industrial action, which will come into force two months from the day on which the Act is passed, and the repeal of the Strikes (Minimum Service Levels) Act 2023 and related provisions, which will come into force on the date the Act is passed.
What does the Bill plan to do? The Bill implements a large number of the reforms promised in the Labour Party’s New Deal document. Alongside the Bill, the government has also published a policy document entitled Next Steps to Make Work Pay (Next Steps) and a set of explanatory notes. The document sets out the government’s plan generally as well as the next steps in implementation for many of the measures.
Laid out below is a summary of the current position, the changes promised prior to the Bill and the expected reforms in relation to the measures set out in the Bill.
Zero hours and ‘low hours’ contracts: Zero-hour contracts are contracts of employment which lack a minimum number of guaranteed working hours and which do not require a minimum commitment from the employee. This means the working hours of an individual are unpredictable and may vary wildly from week to week. Although, individuals on zero-hour contracts do have a number of statutory protections, these are based solely on employment status. At present there is no definition as to what ‘low hours’ means. This will be the subject of consultation.
In order to provide more security for individuals on zero-hour contracts, the Labour Party promised to:
ban ‘exploitative’ zero hours contracts;
ensure a right to a contract reflecting the number of hours regularly worked and is likely to be based on a 12-week reference period;
ensure workers get reasonable notice of any shifts or working time changes, with proportionate compensation for cancelled or shortened shifts;
introduce anti-avoidance measures; and
end ‘one sided’ flexibility by ensuring all jobs provide a baseline level of security and predictability.
The Bill sets out a right to guaranteed hours where a worker regularly works more than those hours. The guaranteed hours are calculated according to a reference period, which is expected to be 12 weeks. Employers will be required to make an offer of guaranteed hours to workers at the start of employment and at the end of each reference period. Workers can also submit claims to the employment tribunal where an employer has failed to comply with their duty to offer guaranteed hours, or where that offer does not comply with the necessary requirements.
The Next Steps document states that the government intends to consult on the details and to ensure the Bill’s provisions on zero hours contracts are effectively and appropriately applied to agency workers.
Fire and re-hire: Currently, employers wishing to introduce changes to the terms and conditions of an employment contract have the option of terminating the contract (with the requisite notice) and offering immediate re-engagement to the affected employee on new terms. While in government, the Conservative party introduced a statutory Code of Practice on dismissal and re-engagement with guidance on engaging in meaningful consultation and exploring alternatives. However, the Labour Party have since committed to ending ‘fire and rehire’ practices entirely in addition to reforming the existing fire and rehire Code and introducing more effective remedies against abuse.
In place of the Code of Practice, clause 22 of the Bill inserts a new section 104I into the Employment Rights Act 1996, which makes a dismissal unfair where the reason for the dismissal is that:
the employer sought to vary an employee’s contract and the employee did not agree, or
the employer sought to employ another person or re-engage the employee under a varied contract to carry out substantially the same duties.
This will not apply where the employer shows that the reason for the variation was to eliminate, prevent or significantly reduce, or significantly mitigate the effect of, any financial difficulties which at the time of the dismissal were affecting, or were likely in the immediate future to affect, the employer’s ability to carry on the business as a going concern or otherwise to carry on the activities constituting the business, and in all the circumstances the employer could not reasonably have avoided the need to make the variation.
Unfair dismissal qualifying period: Under section 108(6) of the Employment Rights Act 1996 the right not to be unfairly dismissed generally only arises where the employee has been continuously employed for a period of at least two years; however the rule is subject to a number of statutory exceptions. The Labour Party has promised to remove the two-year qualifying period for unfair dismissal claims, making it a ‘day one’ right.
The Bill will repeal s.108 of the Employment Rights Act 1996 and remove the two-year qualifying period. However, there will be a new ‘initial period of employment’ (or ‘probationary period’) during which the employer can dismiss an employee for certain reasons, subject to following a specified procedure. The length of the initial period and the details of the procedure will be subject to consultation—see Probationary periods below.
Sick pay (SSP): SSP is currently available to employees who are deemed to have been too ill to undertake any work for a period of at least four consecutive days. Employees must also earn above the lower weekly earnings limit (currently at £123) in order to qualify for SSP. The Labour Manifesto laid out the Party’s commitment to removing the qualifying period for statutory sick pay making it also a ‘day one’ right and removing the lower earnings limit. The Bill reflects both these promises in clauses 8 and 9.
The government will consult on the percentage replacement rate for those earning below the current flat rate of SSP, before bringing it into force as an amendment to the Bill. Furthermore, the Next Steps document states that the new Fair Work Agency will be given responsibility for ensuring SSP enforcement.
Parental leave: Parents of a child (whether born to the parents or adopted) are entitled to take up to 18 weeks of unpaid leave to care for that child at any time before the child’s 18th birthday. Currently parents must have worked continuously for an employer for at least one year to qualify for parental leave. The Bill will make parental leave a ‘day one’ right.
Probationary periods: As noted above, the Bill introduces the concept of an ‘initial period of employment’ (or ‘probationary period’) where dismissals for specified reasons will not be considered unfair. The government has further committed in the Next Steps document to consulting on the length of that initial statutory probation period and to consult on how it interacts with ACAS’s Code of Practice on disciplinary and grievance procedures to ensure that ‘day one’ rights will not be affected by the statutory probation period.
Flexible working: The Employment Rights Act 1996 provides employees with a statutory right to request certain specified changes to their employment contract. However. employees must have had at least 26 weeks’ of continuous service in order to qualify for the right. Earlier legislative changes were made from 6 April 2024, including making the right to request a day one right. However, the grounds upon which an employer can reject a request remain broad.
The Bill introduces a reasonableness requirement into an employer’s decision not to grant flexible working requests, and requirement for the employer to explain to the employee why they consider it reasonable to refuse the request.
Protection for new mothers: Currently, dismissal on the grounds of pregnancy or maternity will be deemed to be an automatically unfair dismissal. This means that an employee dismissed under these circumstances does not require the two years of continuous employment ordinarily needed to bring a claim in the employment tribunal. A woman who takes ordinary maternity leave is also entitled to return to the ‘same job’ at the end of that leave unless that job is no longer available.
The Plan to make work pay also included a promise to strengthen these protections by making it unlawful, except in specified circumstances, to dismiss a woman who has had a baby for six months after she returns to work.
The Bill provides the Secretary of State with the power to make provision for regulations restricting dismissal of an individual during pregnancy or for a period after pregnancy.
Paternity leave: Currently an employee may take paternity leave to support a mother or adopter in taking care of a new child, subject to (among other things) having at least 26 weeks’ qualifying employment. Under the Bill, paternity leave will become a ‘day one’ right.
Bereavement leave: Employees are entitled to Parental bereavement leave (PBL) following the death of a child if they meet the requisite parental relationship conditions and comply with the notice requirements. PBL is a ‘day one’ right; however it is currently only available to employees. The Bill extends the right to take PBL to any ‘bereaved person’. PBL will no longer be limited to circumstances involving the death of a child. A bereaved person will be entitled to take leave for the death of any person as long as they meet the other relevant conditions set out in the regulations.
Equality action plans: Amendments to the Equality Act 2010 made by the Bill will require large employers (with 250 employees or more) to publish equality action plans showing the steps that the employer is taking in relation to their employees with regard to prescribed matters related to gender equality, and to publish prescribed information relating to the plan. These will need to cover addressing the gender pay gap and supporting employees going through the menopause.
Fair Work Agency: The Labour Party has committed to amalgamating the HMRC National Minimum Wage unit, the Employment Agency Standards Inspectorate and the Gangmasters Labour Abuse Authority into a single enforcement body known as the Fair Work Agency. The Bill establishes the Fair Work Agency which will be responsible for:
minimum wage and statutory sick pay enforcement;
the employment tribunal penalty scheme;
labour exploitation and modern slavery; and
enforcement of holiday pay policy (a new responsibility, which was not originally included in the New Deal document).
Fair pay agreements for social care workers: The Labour Party promised to consult on a new Fair Pay Agreement to create a New Deal for Social Care Workers. The Bill provides for the creation of an Adult Social Care Negotiating Body with a remit over remuneration, terms and conditions of employment and any matters specified by the Secretary of State, for social care workers. Agreements over remuneration which have been ratified by the Secretary of State must be paid in accordance with the agreement and any other term will have effect as a term of a worker’s contract. A consultation on how the Fair Pay Agreement should work is promised ‘soon’.
School support staff: The School Support Staff Negotiating Body, the pay body for school support staff, was abolished some time ago. The Labour Party stated that it would reinstate the Body, and task it with establishing a national terms and conditions handbook, training, career progression routes and fair pay rates for support staff to help to address the recruitment and retention crisis. The Bill re-establishes the School Support Staff Negotiating Body.
Trade unions: The Employment Rights Bill makes provision for changes to trade union law relating to:
a worker’s right to a statement of trade union rights;
a trade union’s right of access to a workplace;
trade union recognition;
members’ contributions to political funds, and public sector check-off arrangements;
time off rights for trade union officials, learning representatives and union equality representatives; and
blacklisting.
An employer will be required to give a worker a written statement that the worker has a right to join a trade union at the same time as the employer gives the worker a written statement of employment particulars. Secondary legislation will stipulate what information must be included in the statement, the form the statement must take and the manner in which the statement must be given.
The Employment Bill introduces a new framework for trade unions to request physical access to an employer’s workplace for the purposes of meeting, representing, recruiting or organising workers, and/or facilitating collecting bargaining. Access agreements are to be negotiated in the first instance between the employer and the trade union, with a referral to the Central Arbitration Committee provided for if agreement cannot be reached.
Thresholds required for a trade union to qualify for, and achieve, statutory recognition will be amended, with double thresholds removed where relevant and replaced by a simplified requirement for unions to demonstrate appropriate levels of support. In relation to individual contributions to a political fund of the trade union, the default position will be that individual members will be contributors to the political fund unless they specifically opt out (rather than the other way around, which is the current position.
Changes to the check-off arrangements for public sector workers introduced by s.15 of the Trade Union Act 2016 on 9 May 2024 are to be repealed.
Where an employer permits an employee or a learning representative to take time off for carrying out their duties under the Trade Union and Labour Relations (Consolidation) Act 1992 (ss.168 and 168A), it will also be expected, if requested, to provide reasonable accommodation and other facilities for carrying out those duties.
A new right for reasonable time off for union equality representatives is introduced to support duties related to promoting equality in the workplace.
Secondary legislation will be introduced to extend blacklisting protections; it will be unlawful not only to compile lists of trade union members etc, but also to use such lists for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers, and/or to sell or supply such lists for those purposes.
Industrial action: Changes are proposed in relation to:
balloting and notification requirements for lawful industrial action
lawful picketing;
detriment and dismissal for participating in lawful industrial action; and
restrictions on those working in regulated services from participating in industrial action.
Ballot participation thresholds will be done away with and support thresholds for industrial action will be the majority of those voting in the ballot. Additional balloting thresholds for those engaged in public services will also be done away with. Information that must be included on the voting paper in a ballot is to be significantly reduced and simplified. Provision is made for electronic balloting to be introduced.
The period of notice to be given to an employer to notify it of industrial action is to be reduced from 14 days to seven days.
Lawful picketing will no longer be dependent on the union supervision requirements contained in s.220A of the Trade Union and Labour Relations (Consolidation) Act 1992, which is to be done away with.
A new right for workers to be protected from detriment for participating in protected industrial action, or to deter them from doing so, is to be introduced, and protection against dismissal for participating in protected industrial action is to be extended.
The Strikes (Minimum Service Levels) Act 2023 is to be repealed, and industrial action restrictions on workers working in services that have been designated ‘relevant’ services under the Act are accordingly lifted.
Further reform: In addition to the anticipated reforms announced in the Labour Party’s New Deal and Manifesto, the Bill includes some measures which had not previously been anticipated. Clauses 16–18 of the Bill contain new provisions on sexual harassment, expanding the duty to prevent sexual harassment set to come into force on 26 October 2024 under the Worker Protection (Amendment Of Equality Act 2010) Act 2023. The new sections introduce:
liability for harassment by third parties;
provision for disclosures about sexual harassment qualifying as a protected disclosure under S.43B of the Employment Rights Act 1996; and
the addition of specified steps that an employer must take to demonstrate that they have taken reasonable steps in the prevention of sexual harassment for the purposes of the legislation.
The government will also consult on lifting the cap of the protective award if an employer is found to not have properly followed the statutory collective redundancy processes and on the role interim relief could play in protecting workers in these situations.
As stated above, the Next Steps document provides a general timeline on the implementation of the measures and reforms set out in the Bill. The majority of the measures in the Bill are set to be brought in through commencement legislation, and a number will go through a consultation process before their eventual implementation. According to the Next Steps document, the government expects to start consulting in 2025, although the government is ahead of itself in this regard and launched four consultations on 21 October 2024. The four consultations, which run until early December 2024, seek views of the Bill’s measures relating to a new right to guaranteed hours for zero or low hours workers, collective redundancy consultation and ‘fire and rehire’ practices, trade union legislation and statutory sick pay. This means that any substantive reforms are unlikely to take effect much before 2026. This also means the Bill is likely to see some amendment before all the measures fully come into force.
The Next Steps document also refers to a number of reforms not included in the Bill which the government is nevertheless committed to introducing. These are:
a full review of the parental leave system;
a review of the implementation of carer’s leave and an examination of the benefits of introducing paid carer’s leave;
a consultation on workplace surveillance technologies;
consultations on the creation and implementation of a single ‘worker’ status;
a call for evidence on TUPE 2006 regulations and processes;
a review of health and safety in the workplace aimed at modernising guidance and regulations;
a joint consultation with ACAS on collective grievances;
the introduction of a new National Procurement Policy Statement aimed at reforming the public procurement ahead of the commencement of the Procurement Act 2023 in February 2025; and
an extension of the Freedom of Information Act 2000 to private companies that hold public contracts and publicly funded employers.
Protection at work: The Worker Protection (Amendment of Equality Act 2010) Act 2023 to comes into force on 26 October 2024 and EHRC updates its harassment guidance and publishes eight-step guide for employers on preventing sexual harassment at work
The Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force on 26 October 2024. The Act will:
Introduce a duty on employers to take reasonable steps to prevent sexual harassment of their employees.
Give employment tribunals the power to uplift discrimination compensation by up to 25% where an employer is found to have breached the duty to prevent sexual harassment.
At present it’s only a duty to take ‘reasonable steps’, the new Employment Rights Bill already includes a change to ‘all reasonable steps’ which no doubt will come into force in due course. The Employment Rights Bill will also re-introduce employer liability for third party harassment in relation to all relevant protected characteristics under the Equality Act (sex, sexual orientation, age, disability, etc.)
Sexual harassment occurs where both:
A engages in unwanted conduct of a sexual nature.
The conduct has the purpose or effect of either violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
The EHRC has published an updated technical guidance for employers on the steps they can take to prevent sexual harassment in the workplace. The EHRC has also published an eight-step practical guide to assist with this preventative duty, including developing an effective anti-harassment policy, using a reporting system that allows workers to raise an issue either anonymously or in name, and regularly monitoring and evaluating the effectiveness of an employer’s actions.
Parents: New private members’ bill on Still-Birth and leave for Neo-natal care
The Still-Birth (Definition) Bill (a Private Members’ Bill sponsored by Liberal Democrat peer, Baroness Benjamin) received its first reading in the House of Lords on 14 October 2024. The Bill would amend the definition of still-birth to apply from 20 weeks into a pregnancy, rather than from 24 weeks as currently is the case, including for the purposes of entitlement to maternity allowance under section 35 of the Social Security Contributions and Benefits Act 1992.
Currently under the Neonatal Care (Leave and Pay) Act 2023 (which received Royal Assent on 24 May 2023) employees with responsibility for children receiving neonatal care will be entitled to receive up to 12 weeks of paid leave per year. Regulations bringing into force its main provisions are awaited.
The latest edition of HMRC’s Employer Bulletin confirms that from 6 April 2025 HMRC will begin to administer statutory neonatal care pay (SNCP). The Bulletin informs employers that SNCP:
is claimable in the first 28 days following the birth of a child after they have spent seven consecutive days in neonatal care
can be paid for a maximum period of 12 weeks but will allow some flexibility dependent upon individual parental circumstances and other statutory payments to which they may be entitled.
Pay: New Tipping Act and supplementary Code of Practice comes into force – guidance available
On 1 October 2024, the Employment (Allocation of Tips) Act 2023 and statutory Code of Practice on fair and transparent distribution of tips came into force. Under the Act, employers must distribute tips in a ‘fair and transparent’ manner, passing all tips, gratuities, and service charges on to workers, without deductions. Failure to do so could result in employment tribunal claims by workers seeking to enforce their rights.
The Advisory, Conciliation and Arbitration Service (ACAS) has published guidance on tips and service charges in relation to the Act and supplementary Code of Practice which are both now in force. The guidance explains what the new law says, sharing tips fairly, and the obligation to have a written policy and to keep records. The guidance also covers which tips the law applies to, when tips must be paid, tronc systems and what happens if tips are not being paid correctly.
The DBT has also published non-statutory guidance for employers for employers on distributing tips fairly. The guidance is aimed at helping employers apply the statutory code of practice on fair and transparent distribution of tips, and applies to all sectors and businesses where tips are received. The guidance is not part of the statutory Code of Practice, legal advice or an exhaustive account of what is acceptable under either the Employment Rights Act 1996 or the statutory Code of Practice.
Equality: Office for Equality and Opportunity replaces the Equality Hub
The Equality Hub has been replaced by the Office for Equality and Opportunity. The Office for Equality and Opportunity will cover the overall framework of equality legislation in the UK, including disability policy, ethnic disparities, gender equality and LGBT+ rights.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
This month we look at when a whistleblowing claim may be relevant...
News & Views
Employment Law General Update – November 2022
Employment,
28th November 2022
Employment Law
This month’s news seems to be full of inequality as we report on the gender pay gap, perceptions and experiences of racism at work, menopause, striking transport workers, bias in recruitment, carer’s leave and new protection from redundancy measures for those on pregnancy-related leave.
Redundancy: Government backs Protection from Redundancy (Pregnancy and Family Leave) Bill
Gender Pay Gap: ONS 2022 gender pay gap data published
The Office for National Statistics (ONS) releases annual statistics on differences in pay between women and men by age, region, full-time and part-time work, and occupation as compiled from its Annual Survey of Hours and Earnings. The ONS analysis of the gender pay gap is calculated as the difference between average hourly earnings (excluding overtime) of men and women as a proportion of men’s average hourly earnings (excluding overtime) across all jobs in the UK. It does not measure the difference in pay between men and women doing the same job and is different from compulsory gender pay gap reporting.
The ONS encourages focus on long-term trends rather than year-on-year trends. It notes that the data for 2020 and 2021 was subject to uncertainty and should be treated with caution. This is due to earnings estimates being affected by changes in workforce composition and the furlough scheme during the COVID-19 pandemic, as well as disruption to data collection and lower response rates.
Over the past decade, the gender pay gap has fallen by approximately a quarter among full-time employees. In April 2022, the gender pay gap for full-time employees was 8.3%. While this is higher than the 2021 gap of 7.7%, it continues a downward trend since April 2019 when the gap was 9.0%.
In 2022, the occupation group for managers, directors and senior officials has seen the largest fall in its gender pay gap figure (10.6%) since the pre-pandemic April 2019 figure (16.3%). This reflects signs of more women holding higher-paid managerial roles. In terms of geography, the gender pay gap is higher in all English regions than in Scotland and Northern Ireland.
Other trends seen in 2021 remain:
The gender pay gap is much higher for full-time employees aged over 40 years (10.9%) than those aged below 40 years (3.2%).
Higher earners experience a much larger difference in hourly pay between the sexes than lower-paid employees.
Race Discrimination: 2021 survey considers perceptions and experiences of racism at work
Following a survey of 1,193 UK employees (507 White, 419 Asian, 267 Black), Pearn Kandola, a business psychology consultancy, has published a new report, Racism at Work in the UK 2021. The survey replicated the approach previously taken by Pearn Kandola in 2018 (see Racism at Work Survey Result, 2018), asking participants about their perceptions and experiences of racism at work and actions their employers have taken to combat racism.
Of the employees surveyed, 74.8% considered racism to be a problem in the workplace. Of the 52.2% who had witnessed racism at work, 29.8% confronted the perpetrator, 22.4% reported the incident to a manager or HR department while 28.3% took no action.
Racism at work was experienced by 34% of the respondents. Black respondents were 15.1 times more likely than White respondents, and 1.9 times more likely than Asian respondents, to experience workplace racism. Asian respondents were 8.1 times more likely to experience racism at workplace than White respondents. These results suggested that the likelihood of Black and Asian employees experiencing racism at work had generally increased between 2018 and 2021. For White respondents it had decreased.
Almost half of employees worked for organisations that had taken action to promote greater racial equality at work (49.7%). Most frequently this involved anti-racism training and general awareness raising. Internal policies and procedures were changed both to make them more inclusive and to make it easier to report racism to senior colleagues.
The report recommendations include recognition that experiences differ both between and within racial groups, and for employees to be trained to become active bystanders who know how to challenge racism.
ACAS: Survey finds 1 in 3 employers feel under-equipped to support women during menopause
ACAS has reported on the outcome of a survey in which it commissioned YouGov to ask British businesses how well equipped they felt their workplaces were to support women going through the menopause. Responses indicated that while 46% felt either very or fairly well equipped, 33% considered that they were either not that well equipped or not equipped at all, and 21% of respondents did not know. With regard to confidence in managers having the necessary skills to support staff, 46% felt either very or fairly confident, 37% were either not very or not at all confident and 17% did not know.
ACAS advises that employers:
Develop a menopause policy that explains how the menopause can affect people differently and what support is available.
Provide awareness training for managers on the menopause and how to deal with it sensitively and fairly.
Consider making practical changes at work to help staff manage their symptoms, such as the availability of cold drinking water and temperature control.
Trade Unions: New Transport Strikes Bill introduced to House of Commons
On 20 October 2022, the Transport Strikes (Minimum Service Levels) Bill had its first reading in the House of Commons. The Bill is intended to balance the right to strike with ensuring people can commute to work and make vital journeys to access education and healthcare during strikes. It will enable employers to ensure minimum service levels in specified transport services during strikes by requiring sufficient employees to work.
The Bill sets out the legal framework through which minimum service levels will be achieved using minimum service specifications, which include minimum service agreements, minimum service determinations and minimum service regulations. Employers and trade unions may negotiate and reach agreement on minimum service levels by entering into a minimum service agreement. Where the parties have failed to reach an agreement after three months, the matter will be referred to the Central Arbitration Committee (CAC) which will make a minimum service determination. The Bill provides that the Secretary of State may set minimum services levels through minimum service regulations which will apply where an agreement has not been entered into and a determination has not been made.
When a union gives an employer notice of a strike which relates to a specified transport service, and the employer and union are bound by a minimum service specification as regards the employer’s provision of that service, the employer may give a work notice to the union. That notice will identify the people required to work during the strike in order to ensure that minimum levels of service are provided and specify the work they will be required to carry out during the strike. Where an employer has given a work notice and the union fails to take reasonable steps to ensure that those identified in the notice do not take part in the strike, the union will not be protected from an action in tort by the employer.
The Transport Strikes (Minimum Service Levels) Act 2022, which will extend to England, Scotland and Wales, will come into force at the end of the period of two months beginning with the day on which it is passed.
The research considered the suggestion that using AI in recruitment can objectively assess candidates by removing gender and race from their systems and, in doing so, make recruitment fairer and help organisations to achieve their DEI goals and establish meritocratic cultures. The researchers built their own simplified AI recruitment tool, to rate candidates’ photographs for the “big five” personality traits: agreeableness, extroversion, openness, conscientiousness and neuroticism. However, they found the software’s predictions were affected by changes in people’s facial expressions, lighting and backgrounds, as well as their choice of clothing.
Recommendations made as a result of the research include developers shifting from trying to correct individual instances of bias to considering the broader inequalities that shape recruitment processes. Those, such as HR professionals, tasked with using technology must understand the limitations of AI and need suppliers to explain where AI is being used in their systems and how it is being used to evaluate candidates. The research also suggested that there remains an insufficient contribution from AI ethicists, regulators and policymakers in the scrutiny of AI-powered HR tools.
The Chartered Institute of Personnel and Development’s Resourcing and talent planning report (September 2022) found that only 8% of employers used AI to interpret job requirements and scan databases or the open web for relevant candidates and that 5% of employers used AI to either screen candidates (shortlisting based on a job description) or select them (through analysis of interview responses to match hiring criteria or using chatbots for first-stage interviews).
On 21 October 2022, the government announced that it was backing the Carer’s Leave Bill, a Private Members’ Bill sponsored by Wendy Chamberlain MP. The Bill had its first reading in the House of Commons on 15 June 2022 and its second reading was passed with government support on 21 October 2022.
The Bill will introduce a new and flexible entitlement of one week’s unpaid leave per year for employees who are providing or arranging care. It will be available to eligible employees from the first day of their employment. They will be able to take the leave flexibly to suit their caring responsibilities and will not need to provide evidence of how the leave is used or who it will be used for which, it is hoped, should ensure a smooth process. Employees taking their carer’s leave entitlement will be subject to the same employment protections that are associated with other forms of family-related leave, meaning they will be protected from dismissal or any detriment as a result of having taken time off.
Between 16 March and 3 August 2020, the government consulted on its proposal to give employees who are also unpaid carers a week of unpaid leave each year to provide care. On 23 September 2021, the government response to the consultation confirmed that it would introduce a statutory right of up to one week of unpaid carer’s leave when Parliamentary time allowed.
Redundancy: Government backs Protection from Redundancy (Pregnancy and Family Leave) Bill
On 21 October 2022, the government announced that it was backing the Protection from Redundancy (Pregnancy and Family Leave) Bill, a Private Members’ Bill sponsored by Dan Jarvis MP. The Bill had its first reading in the House of Commons on 15 June 2022 and its second reading was passed with government support on 21 October 2022.
Currently, the Employment Rights Act 1996 (ERA 1996) allows the Secretary of State to make regulations concerning redundancy “during” periods of maternity leave, adoption leave or shared parental leave. For example, under regulation 10 of the Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312), before making a woman on maternity leave redundant, an employer must offer her a suitable alternative vacancy where one is available with the employer or an associated employer.
The Bill will amend the ERA 1996 to enable the Secretary of State to make regulations providing protection against redundancy “during or after” an individual taking the relevant leave. It will also add a new provision to the ERA 1996 allowing for regulations about redundancy “during, or after” a “protected period of pregnancy”. While the detail will be provided by the regulations, the explanatory notes to the Bill suggest that, by extending protection after a protected period of pregnancy, a woman who has miscarried before informing her employer of her pregnancy will benefit from the redundancy protection.
On 25 January 2019, BEIS published a consultation on extending this protection to apply from the date an employee notifies the employer in writing of her pregnancy, to six months after her return from maternity leave. The consultation also asked whether this protection should be extended to similar types of leave such as adoption leave and shared parental leave. On 22 July 2019, the government published its response to the BEIS consultation suggesting that it would bring forward legislation when Parliamentary time permitted.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
