Ian Wasserman

New Employment Rights Bill

Much of the detail and timing of the Labour government’s employment law proposals remain to be clarified, but employers are nevertheless advised to consider the implications of the changes announced in the King’s Speech. A new Employment Rights Bill will be introduced to Parliament in October 2024 in order to implement many of the new measures, which are likely to come into force some time in 2025. However, it is possible that some changes could be implemented sooner by means of statutory instruments. Employers should be preparing, in particular, for the new day one rights. These will include the right not to be unfairly dismissed (subject to probationary periods) and the rights to receive statutory sick pay, parental leave, and flexible working as default. In most cases, it will be prohibited to dismiss new mothers for six months after they return from maternity leave. Exploitative zero-hour contracts will also be banned. A new Equality (Race and Disability) Bill will introduce the right to equal pay for ethnic minorities and individuals with disabilities, and mandatory ethnicity and disability pay reporting for employers with over 250 employees. Another key change for employers will be the removal of restrictions on trade union activity, including the minimum service levels introduced recently by the previous government.

Proposed changes to guidance on preventing workplace sexual harassment 

The Equalities and Human Rights Commission (EHRC) has published a consultation on proposed changes to its guidance on preventing workplace sexual harassment. This reflects the new positive legal duty for all employers to take reasonable steps to protect workers from sexual harassment, which comes into force on 26 October 2024, under the Worker Protection (Amendment of Equality Act 2010) Act 2023. The draft guidance advises employers to implement preventative steps after carrying out a risk assessment across the business. What steps are reasonable will vary depending on factors such as the employer’s size, sector, working environment, and resources. The draft also confirms that the new duty includes the prevention of sexual harassment by third parties, such as customers or clients. Employment Tribunals will have the power to apply an uplift of 25% on awards of compensation where the duty has not been complied with. The EHRC also has enforcement powers, including the ability to enforce a legally binding agreement with an employer to prevent future unlawful acts and to request a court injunction to restrain an employer from committing an unlawful act. Since the new duty is a preventative duty, employers should be preparing now by conducting risk assessments; updating policies and procedures; providing updated and comprehensive training and refresher training to all staff; and reviewing procedures for reporting harassment. It is possible that the duty will be strengthened further, as Labour has previously committed to introducing a requirement for employers to take ‘all’ reasonable steps to prevent sexual harassment. The EHRC’s consultation closed on 6 August 2024. 

Code of Practice on Dismissal and Re-engagement

The statutory Code of Practice on Dismissal and Re-engagement came into force on 18 July 2024. This sets out the principles that employers should follow if they are contemplating using the practice of fire and rehire to make changes to employees’ contracts of employment. The Code stresses that this practice should be regarded as an option of last resort and sets out key expectations of the information and consultation process. Although failure to follow the Code does not in itself give rise to a claim, Tribunals will have the power to increase compensation by up to 25% where employers have unreasonably failed to follow the Code. It should be noted that the Labour government has confirmed that it still plans to replace the current Code with a strengthened version once the relevant legislation has been implemented, possibly allowing fire and re-hire only in very limited circumstances, such as to avoid mass redundancies or insolvency.

Updated guide for employers on right to work checks

The Home Office has published an updated guide for employers on right to work checks. This provides more information on the ongoing scheme to replace biometric residence permits with fully digital eVisas, due to be completed by the end of 2024. Digital eVisas will allow immigration status to be shared on a time-limited basis with employers, landlords, and other third parties. Invitations to create a free online UK Visas and Immigration (UKVI) account are being sent out to migrants on a phased basis throughout 2024. The amended guidance also clarifies requirements for follow-up right to work checks and confirms that the Home Office no longer requires employers to carry out repeat checks on holders of pre-settled status under the EU Settlement Scheme. Since all biometric residence permits will expire on or before 31 December 2024, employers must ensure they have appropriate plans in place to conduct repeat right to work checks, particularly as there will be added pressure on Home Office systems as this deadline approaches. 

Experiences of neurodiverse workers in the tech sector

The trade union Prospect has published the results of a survey into the experiences of neurodiverse workers in the tech sector. This showed that only 25% of employers have specific policies in place to support staff with neurodivergent conditions and that four out of five respondents had directly experienced challenges at work due to their condition. More than half (57%) of the respondents said that their employer had been supportive when they disclosed their condition, compared to 37% whose employer was not supportive. 85% of respondents reported that they tended to mask their neurodivergent condition consciously or unconsciously at work in order to appear neurotypical. Although significant barriers were identified by respondents, only 28% had made a formal request for a reasonable adjustment. These requests were usually accepted by employers. Respondents with a diagnosis were more likely to seek support from their employer (44% compared to 8%).