424: Recent developments in employment law

The Retained EU Law (Revocation and Reform) Act 2023

The Retained EU Law (Revocation and Reform) Act 2023 has finally received Royal Assent after the House of Lords accepted Government commitments to carry out public consultation on any significant reforms, to ensure parliamentary debate if recommended by a parliamentary committee, and to maintain environmental protections. This means that on 31 December 2023, the supremacy of EU law and all directly effective EU rights will end. Ministers will also have powers to reform any EU-based law which was introduced into UK law by statutory instrument (rather than by an Act of Parliament such as the Equality Act 2010). Around 600 specific pieces of secondary and EU legislation listed in a schedule to the Act will be revoked at the end of 2023. Interestingly, other than some minor or obsolete regulations, there is no employment legislation in this list. That said, we have already received confirmation that the Government is proposing to make minor amendments to TUPE, and to both allow rolled-up holiday pay and clarify holiday pay calculations. Other employment law changes are expected to feature in party manifestos for the next general election.

Regulation of umbrella companies

The Government has published its response to the call for evidence on the umbrella company market which closed on 22 February 2022, together with a consultation on proposals to regulate umbrella companies and tackle non-compliance with employment rights and tax. Key proposals include:

• introducing a definition of ‘umbrella companies’ to ensure more precise regulation and enforcement;
• requiring organisations to undertake greater due diligence when deciding with which umbrella company to contract;
• giving HMRC the power to collect tax debts from another business in the labour supply chain; and
• setting out minimum legislative standards on pay and holiday pay.

The Government is also looking at improving support for employees in the umbrella company sector through guidance and online tools. Guidance for employment businesses on best practice when carrying out due diligence and on how to support workers they engage via umbrella companies will be published later this year.

Women’s health and diversity in the workplace

The British Standards Institute (BSI) has launched a new standard (BS 30416) on menstruation, menopause and menstrual health in the workplace with the aim of ensuring that women have equal access to work, receive adequate support and can achieve their full potential. This follows research from the Fawcett Society suggesting that around 10% of women have left the workforce due to menopause symptoms. The Government has previously refused to legislate on the issue. However, the new standard has been produced following extensive consultation with experts and the public as well as organisations such as ACAS and Unison. It includes advice on good practice in setting policy, work design, workplace culture and physical adjustments. The BSI also stresses the importance of tailoring support to different sectors and workplaces, as well as to employees’ individual roles and circumstances. Examples of steps for employers to consider include:

• providing training for line managers and HR managers;
• checking all policies to ensure the menopause is addressed appropriately; and
• offering flexibility in the timing of breaks, opportunities for sitting, or comfort adjustments such as access to individual cooling or heating.

The BSI has also published a new code of practice (PAS 1948:2023) on improving diversity, equity and inclusion (DEI) in the workplace. This highlights research indicating that employers who prioritise gender, ethnic and cultural diversity benefit from improved profitability. The new code of practice aims to help organisations develop a framework and culture that promotes and supports DEI in the workplace and applies to organisations of any type, size and sector. It includes guidance on practical measures in recruitment and retention; how to address behaviour which is inconsistent with DEI and advice on incorporating inclusion by design into technology, services and business models. This tool is a helpful reference point for employers in improving and expanding DEI.

Workplace adjustments for disabled employees

The Business Disability Forum has published its Great Big Workplace Adjustments Survey 2023, exploring the process, experience, and impact of workplace adjustments. Responses were received from almost 1,500 disabled employees and 400 managers. Key findings from the survey include:

• 78% of disabled employees reported that they, rather than their employer, had to initiate the process of getting adjustments;
• 56% of those interviewed said that that there are still disability-related barriers in the workplace after adjustments had been made;
• the speed of getting adjustments has improved by 4% since the last survey in 2019, but one in eight disabled employees are still waiting over a year for these to be made; and
• just 22% of disabled employees thought that occupational health (OH) had helped them manage their condition at work.

The survey also contains recommendations for employers on how to improve disability inclusion, such as simplifying the adjustments process, providing more support for managers, and removing disability-related barriers beyond adjustments. Other recommendations include requiring OH providers to adhere to diversity and disability inclusion policies and ensuring that managers know how to make an effective OH referral. Following the finding that 38% of respondents experienced bullying and harassment due to their disability, the report asks all employers to undertake a bullying and harassment review and to ensure that their policies specify an appropriate threshold for what constitutes bullying and harassment. Employers should consider their current practices on such issues and whether these need to be updated as a consequence.

Bill of Rights Bill halted

The Government has confirmed that the Bill of Rights Bill will not proceed any further. This Bill, which would have repealed and replaced the Human Rights Act 1998, had been widely criticised for introducing measures lowering human rights protections. In January 2023, the Joint Parliamentary Committee on Human Rights issued a report questioning the basis for the proposed legislation, stating that it would seriously weaken the ability of individuals to seek redress for human rights breaches and remove key protections, for example, by removing the ability of the courts to read legislation so that it is compatible with human rights. It is anticipated, however, that some of the measures proposed in the Bill may nevertheless be introduced in other new legislation.