News 📰
Labour’s Green Paper
The big news in the employment world this month is Labour’s proposals set out in their Green Paper on changes they intend to make to employment law, should they become our next government following the general election on 4 July 2024. Some of these are quite controversial!
The headline points are:
- Unfair dismissal could be a “day one” right subject to contractual probationary periods. This is the big one. Currently, a two-year period of continuous service is required to bring an unfair dismissal claim. The removal of this requirement could result in many more claims being brought (both spurious and genuine) and could increase significantly the burden on employers.
- The introduction of the right to disconnect, i.e. a right to not be required or expected to work outside contracted hours. This is already in place in countries like France and Belgium. It's unclear whether this right will be absolute or have exceptions. Obviously, some roles may need to be available outside working hours (for example, particularly senior positions). Currently there are no proposals as to what the consequences would be for employers who breach the right.
- If a company employer fails to pay a tribunal award, the directors will be personally liable and able to be sued in a private capacity for the unpaid monies.
- There is an intention to ban unpaid internships except when they are part of an education or training course.
- Currently, employment law classes people as employees, workers or self-employed. Labour intends to create a single status of ‘worker’ for all those who work other than the genuinely self-employed. The intention seems to be that all workers, regardless of sector, wage, or contract type, will be afforded the same basic rights and protections. This includes rights to sick pay, holiday pay, parental leave, and protection against unfair dismissal.
- There would be an increase to Statutory Sick Pay (SSP), although no detail has been given in relation to the level of increase.
- There would be an intention to ban zero hours contracts and contracts without a minimum number of guaranteed hours. This might cause significant difficulty for businesses where available hours vary greatly (for example, in agriculture).
- The intention to ban the practice of ‘fire and rehire’.
- There is an intention to extend statutory maternity and paternity leave, to introduce the right to bereavement leave, and to strengthen protections for pregnant women by making it unlawful to dismiss a woman for six months after her return from pregnancy/maternity leave, except in specific circumstances.
- There is also an intention to remove statutory limits on employment awards (e.g. for unfair dismissal).
Duty to take reasonable steps to prevent sexual harassment in the workplace
The Equality and Human Rights Commission will consult this summer on planned changes to its guidance on sexual harassment and harassment at work. This is in light of the new duty on employers to take reasonable steps to prevent sexual harassment in the workplace, which will come into effect on 26 October 2024.
The Worker Protection (Amendment of Equality Act 2010) Act 2023 will create a positive obligation on employers to take “reasonable steps to prevent sexual harassment of employees… in the course of their employment”.
The other major impact is the potential uplift to any compensation awarded in a successful claim against an employer. This new law gives Employment Tribunals the power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached this duty.
We strongly advise employers to review and update their Diversity and Equality Policies and to ensure that managers are trained properly in relation to their extended duties under the act. It is extremely important that all training is properly recorded to ensure that evidence can be provided to show that the employer has taken reasonable steps to prevent sexual harassment in the workplace.
WorkWell pilots
The government has announced new ‘WorkWell’ pilots that are set to be rolled out in October 2024. The pilots will be available to those with health conditions or disabilities. They will aim to provide better connections with existing local support services, such as physiotherapy and counselling. Support will also be available to identify workplace adjustments that would help the individual stay in or return to work.
Consultation on TUPE
The current government has started a consultation (due to end on 11 July 2024) on the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). Changes which are being consulted on include:
- To clarify that TUPE should only apply to employees not to workers. In its present form, TUPE applies to ‘employees’ but its definition of ‘employee’ is wider than that contained in the Employment Rights Act 1996. Clarification on this point would be very welcome to avoid the position in relation to workers being so uncertain.
- To clarify that TUPE should only apply to employees not to workers. In its present form, TUPE applies to ‘employees’ but its definition of ‘employee’ is wider than that contained in the Employment Rights Act 1996. Clarification on this point would be very welcome to avoid the position in relation to workers being so uncertain.
Of course, whether the outcome of the consultation will be progressed will depend on the outcome of the general election.
Irrespective of the election outcome, employers should remember that TUPE consultation requirements for small businesses will be simplified for TUPE transfers taking place on or after 1 July 2024.
Case Law Update 📢
Baldwin v Cleves School and others
Where acts committed by individuals in the course of their employment are found to be discriminatory, those individuals are liable regardless of whether the employer is also found to be vicariously liable for their conduct.
The claimant, a teacher, brought a disability discrimination claim against her employer and two colleagues. The tribunal upheld claims against the school arising from an act of discrimination from each of her colleagues. However, it dismissed the equivalent claims against her colleagues because it found that their acts were misguided attempts to address a complex situation.
On appeal, the EAT held that where a tribunal has found (as it had in this case) that a discriminatory act took place in the course of the individual’s employment, the tribunal is bound to find that the co-Respondent individual is liable.
Groom v Maritime and Coastguard Agency
The Employment Appeal Tribunal held that a volunteer in the Coastal Rescue Service could be a “worker”.
The Claimant worked under a volunteer agreement. He carried-out some activities for no payment but he was entitled to be paid for other activities when he submitted a claim for payment. The Claimant was dismissed by the Respondent. He brought a claim in relation to the right to be accompanied at a disciplinary hearing (a right only employees and workers have). To be classified as a worker, the Claimant had to show that he had a contract with the Respondent under which he undertook to perform services personally.
The EAT found that the Claimant was a worker during the periods when he was undertaking an activity with promised payment.
Thank you to our contributors: Phil Cookson, Desley Sherwin, Laura Hill and George Miller.