444: What’s new in employment law?
Employment Tribunal compensation payment uplifts
The annual uplift in Employment Tribunal compensation payments has been announced, based on an RPI increase of 8.9% from September 2022 to September 2023. These new figures apply to dismissals where the effective date of termination falls on or after 6 April 2024. The limit on a week’s pay, used to calculate unfair dismissal basic awards and statutory redundancy payments, will increase from £643 to £700. Maximum compensatory awards for unfair dismissal will increase from £105,707 to £115,115. Minimum basic awards for certain unfair dismissals, including health and safety and trade union dismissals, will increase from £7,836 to £8,533.
ECHR guidance on menopause support
The Equality and Human Rights Commission (EHRC) has published guidance, mainly in the form of explainer videos, aimed at helping employers support women who are experiencing menopausal symptoms at work. This covers practical information on the impact of the menopause, including suggestions for workplace adjustments. The guidance also clarifies employers’ legal obligations, highlighting the risk of discrimination claims based on disability, age and sex, and the requirement for all employers to conduct a workplace risk assessment. Citing research by the CIPD showing that two thirds of working women between the ages of 40 and 60 said their menopausal symptoms had a mostly negative impact on them at work, the EHRC urges employers to consider its guidance and adapt their policies and practices accordingly.
Home Office guide to right to work checks
On 8 February 2024, the Home Office published an updated employers’ guide to right to work checks which applies to checks undertaken on or after 13 February 2024. A key change is the removal of the 28 day concession which allowed late applications to the EU Settlement Scheme for EEA nationals and their family members. If an employer identifies an existing employee who no longer has a right to work, appropriate action must be taken, including contacting the Home Office for support or taking steps to terminate employment. The update also confirms that employers must seek additional evidence for workers involved in supplementary employment in order to ensure that they are not working more than the permitted additional 20 hours per week. Maximum penalties for non-compliance have been raised to £45,000 per illegal worker for a first breach and £60,000 per illegal worker for subsequent breaches.
Tax clearances in termination payment cases
HMRC has announced in its February 2024 Employer Bulletin that it will no longer provide tax clearance outside of the Non-Statutory Clearance Service in termination payment cases involving the application of the £30,000 tax free threshold, the disability and injury compensation exception, the foreign service exception, and non-cash provisions. In addition, HMRC will no longer provide clearance on the application of specific statements of practice or extra-statutory concessions. However, if there is a genuine point of uncertainty, for example as regards the tax and national insurance treatment of a termination payment, HMRC’s Non-Statutory Clearance Service can still be used.
ICO guidance on biometric data
Following consultation, the Information Commissioner’s Office (ICO) has published Biometric data guidance: Biometric recognition, the first phase of its new guidance on biometric data and biometric technologies. This is aimed at organisations which are using or considering using biometric recognition systems, as well as developers and providers of these systems. ‘Biometric recognition’ is not a term defined in data protection law but is defined by the International Standards Organisation as the automated recognition of people based on their biological or behavioural characteristics. Topics covered in the guidance include an explanation of biometric data; when it is considered special category data; how it is used in biometric recognition systems; and how it can be processed lawfully and fairly. Further biometric guidance will be issued after a call for evidence later this year. The ICO has also announced that it has issued enforcement notices against Serco and seven associated community leisure trusts ordering them to stop using facial recognition technology and fingerprint scanning to monitor the attendance of more than 2000 employees at 38 leisure facilities.
Taskforce and Occupational Health ‘Tsar’ launched to deal with workplace sickness
A new Occupational Health Taskforce has been launched to tackle in-work sickness and improve workforce inactivity rates, chaired by Dame Carol Black, the Government’s Occupational Health Tsar. At present, only 28% of employers provide some form of occupational health, with large employers (89%) nearly three times more likely than SMEs (28%) to do so. This means that only around 45% of workers currently have access to some form of occupational health service. The Taskforce aims to increase uptake of occupational health through a new Voluntary Minimum Framework for business which is expected to be published in summer 2024. This will provide practical information for employers and set out minimum levels of occupational health provision needed to prevent or reduce ill-health related job loss. The launch of the Taskforce coincides with the government’s £64 million pilot of the new WorkWell service which aims to help 60,000 workers with health conditions remain in work by integrating employment and health support using a multidisciplinary, localised approach.
EU Act and UK Government white paper on AI
The final text of the European Union’s Artificial Intelligence Act has been endorsed by all 27 member states and will come into force later this year. The Act will apply to providers, users, importers, distributors, and manufacturers of AI systems which have a link to the EU market so will be a necessary requirement for businesses which have EU operations or intend to expand into the EU. It adopts a risk-based approach, using a sliding scale of risk which will prohibit some AI systems entirely and introduce extensive compliance requirements for high-risk systems. For example, AI systems which involve human profiling will always be designated high risk. Implementation and enforcement of the Act will be strengthened by means of the newly established European AI Office, and the EU AI Liability Directive which is currently going through the legislative process.
The Department for Science, Innovation and Technology has published the government’s response to its March 2023 white paper, A pro-innovation approach to AI regulation. In a contrasting approach to the EU, its response reiterates that there will be no new AI legislation in the UK, with the emphasis on a decentralised regulatory approach. Existing regulators will be expected to apply their existing powers to AI issues, using high-level principles aimed at ensuring safety and security. These principles include transparency and explainability; fairness; accountability and governance; and contestability and redress. The consultation response is accompanied by initial guidance for regulators on how to implement these principles. Various regulators, including the Equality and Human Rights Commission, the Health and Safety Executive and the Information Commissioner’s Office, have been directed to publish their strategic approach to AI by 30 April 2024. Further government guidance is expected on several issues such as the use of AI in HR and recruitment.
Minimum service levels for fire and rescue services during strikes
On 8 February 2024, the Government published the outcome of its consultation on minimum service levels during strikes by members of the fire and rescue services, together with the draft Strikes (Minimum Service Levels: Fire and Rescue Services) (England) Regulations 2024. These regulations cover England only and will apply to control room services, emergency incident responses and fire safety services, excluding voluntary firefighters. The minimum service levels will require the normal functions of a control room to be carried out during industrial action as if it were a non-strike day, with 73% of the usual number of appliances and vehicles required to be deployable. Fire and rescue authorities will have the power to determine how many employees are required to maintain these statutory minimum service levels. The draft Regulations are currently awaiting Parliamentary approval but are expected to come into force shortly.