The Government has confirmed it would introduce a new duty on employers to prevent sexual harassment and third party harassment in the workplace. The government will also look closely at the possibility of extending time limits for claims under the Equality Act 2010 from three to six months.
The obligations on employers will increase. Employers will be required to take "all reasonable steps" to prevent harassment and that an incident will need to have occurred before an individual can make a claim.
The Bill seeks to enhance and protect workers' rights post-Brexit. The Bill is aimed at promoting fairness in the workplace and will include the creation of a new Single Enforcement Body to offer better protection for workers, ensuring staff receive tips in full, introducing a new right for all workers to request a more predictable contract, enhanced redundancy protection for women and new parents, allowing parents to take extended leave for neonatal care, the introduction of a week's unpaid leave for unpaid carers and, subject to consultation, making flexible working the default unless employers have good reason not to do so.
These changes are part of a wider shift towards transparency in employer/employee relationships. Employers should be aware of when the Bill comes into force and perhaps use this as an opportunity to review working relationships, whether there is scope for increased flexibility and consider how employment contracts and policies might need updating to reflect the changes.
A report by the Commission for Race and Ethnic Disparities in March 2021 recommended that publication of ethnicity pay gaps should continue to be voluntary for employers and that Government should provide guidance on how to do so. The Government has not yet responded to this nor has it yet published its response to its consultation on ethnicity pay reporting which closed in January 2019. Business groups including CIPD have been urging the Government to make it mandatory for employers to bring in ethnicity pay gap reporting to help those from ethnic minority groups reach their full potential at work.
This is a topic for employers to watch. Some organisations have chosen to disclose their ethnicity data voluntarily and businesses may choose to do so as part of their own Diversity and Inclusion initiatives or for reputational reasons.
The Government has announced that it intends to enhance redundancy protections for pregnant women and new parents by ensuring protection applies from the point when the employee informs her employer of the pregnancy and extending the protection period by/to six months once a new mother has returned to work as well as extend redundancy protection into a period of return to work for those taking adoption leave and shared parental leave.
The proposed extension could extend the period of protection to up to two years' redundancy protection. Employers will need to consider any new extended statutory protections for pregnant women and new parents in a redundancy exercise.
The NLW for those over 23 will rise from £8.91 to £9.50 per hour (6.6% increase).
NMW rates will also rise:
Employers will face higher wages bills, most likely including the knock on effect of higher wages for more senior employees to maintain an appropriate pay differential. The increase will also bring more workers closer to the NLW / NMW limits. Employers will need to be aware of risk areas that create NLW / NMW underpayment.
There have been two recent cases relating to Trade Unions and protection from detriment for participating in industrial action. Both cases have been appealed to the Court of Appeal and are due to be heard separately in 2022. In the first case of Mercer v Alternative Future Group Ltd, the EAT held that a lack of protection from detriment for having participated in strike action under s.146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) was a breach of Article 11 of the European Convention on Human Rights and that such protection should therefore be read into s.146 TULRCA.
In the second recent case of Ryanair DAC v Morais, the EAT held that s.146 of TULCRA which protects workers from detriment connected with trade union activities, confers protection on workers who take industrial action regardless of whether such action is protected industrial action. It also held that striking workers are protected from detriment under the Employment Relations Act 1999 (Blacklists) Regulations 2010.
Both these cases have enhanced employee protection for those taking part in industrial action by limiting the employer's ability to respond to it. Employers should exercise great caution in such situations while we await the outcome of the decisions from the Court of Appeal.
Modern slavery issues have become increasingly prominent over the last few years and many Governments have announced new legislation or amendments to existing legislation which impose additional reporting and compliance obligations on businesses in relation to modern slavery. In particular:
the UK government has announced that it intends to amend the Modern Slavery Act 2015 to: (i) create a criminal offence for including false information in a slavery and human trafficking statement; (ii) introduce financial penalties for organisations which fail to meet the transparency requirements; (iii) set a single reporting deadline for statements; and (iv) require slavery and human trafficking statements to cover specific areas;
Germany has passed a Supply Chain Due Diligence Act, which will come into force in 2023 and will require businesses to make reasonable efforts to ensure that there are no violations of human rights in their own business and supply chains; and
the EU is considering legislation which will require companies to take measures to prevent harm to human rights, which would include preventing instances of modern slavery in supply chains.
Businesses should continue reviewing their practices in relation to modern slavery and should be particularly aware of high risk areas within their supply chains. Specific consideration should be given to: (i) providing modern slavery training to procurement and audit staff; (ii) implementing appropriate due diligence on suppliers; and (iii) ensuring that contractual rights are available to limit risks associated with modern slavery.
As part of the National Disability Strategy published in July 2021, the government made a commitment to consult on voluntary and mandatory reporting of disability in the workforce by large employers. The consultation has just been published and seeks views on how employers with more than 250 employees might be encouraged to collect and report statistics about disability to make their workforces more inclusive. It will explore how government and employers can make workplaces more inclusive for disabled people and increase transparency The closing date for responses is 25 March 2022. As part of the National Disability Strategy the Government also promised to provide further support for disabled apprentices, including investigating the barriers faced by disabled people in undertaking apprenticeships and how to address them, with results due to be published in February 2022.
This is a topic for employers to watch. Organisations may also want to consider putting their views forward in the consultation before 25 March 2022.
The Department for Work and Pensions has published its proposed increases to a number of statutory benefit payments including maternity, paternity, adoption and sick pay. The following rates are expected to apply:
Employers must be aware of the new rates which will increase costs of employee entitlements to be paid.
The COVID-19 temporary concession to allow remote right to work checks to be carried out on candidates as part of the onboarding process for all new employees (regardless of nationality) has been extended until 5 April 2022. Employers must revert to conducting full right-to-work checks from 6 April 2022 as carried out prior to the COVID-19 Pandemic.
Employers must revert to conducting full right-to-work checks, which means either checking the applicant’s original documents in person or checking their right to work online (for those holding biometric residence permits or holding status under the EU settlement scheme or points-based system). Employers won't have to conduct retrospective checks on those people who were subject to the COVID-19-adjusted regime between 30 March 2020 and 5 April 2022.
The Government has confirmed its intention to legislate to ensure that tips for workers are received by them in full.
The measures include requirements for employers not to make deductions from staff tips save for tax and to deal with tips fairly and transparently. There will be a statutory code of practice which will include employers needing to have a written policy on tips and to keep a record of how tips are dealt with. Rights will be enforceable in the employment tribunals.
The UK Government has confirmed it will introduce a new statutory right of up to one week's unpaid leave for unpaid carers' per year. It will be a day one right with employees able to take leave to provide or arrange for care of an immediate family member, someone in their household or who reasonably relies on them for care with a defined long-term care need. The carer will be protected from suffering any detriment arising from it and any dismissal related to exercising the right to carer's leave will be automatically unfair.
Employers should be aware of this new entitlement and may need to update policies and handbooks to reflect the new changes.
