Employment law updates
- AuthorMartin Cornforth
The Government has published new regulations, The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023, following proposals to amend Working Time and TUPE.
The regulations clarify that employers do not need to maintain a written record of hours worked by each employee every day. Employers will only need to maintain adequate, written records demonstrating compliance with the working time limits;
In response to the Supreme Court ruling in Harpur Trust, leave for part year workers and irregular hours workers will accrue from 1st January 2024 at the rate of 12.07% of hours worked and will be paid at the rate of 12.07% of pay in a pay period. This method was widely used before the Harpur Trust judgment and better reflects what workers have actually worked in the current leave year.
Regarding TUPE Reforms, it will now be possible to consult employees directly, instead of electing employee representatives if:
- The business employs fewer than 50 people; or
- The transfer involves fewer than 10 employees.
This be welcome news to smaller businesses who are usually expected to follow the same rules as very large enterprises.
Preventing sexual harassment in the workplace
The Worker Protection (Amendment of Equality Act 2010) Act 2023 requires employers to take reasonable steps to prevent sexual harassment in the workplace. The Act will come into force during October 2024.
Employment tribunals will also have the power to increase compensation by up to 25% where an employer has failed to take reasonable steps to prevent sexual harassment.
King Charles III has delivered his first King's Speech, outlining the government's legislative plans. Of interest to employers include proposed reforms to data protection. Employers occasionally receive vexatious Subject Access Requests seeking large volumes of information. Currently employers can refuse such requests if they are "manifestly unfounded," but in practice this is a very high threshold to establish. The proposal is to replace "manifestly unfounded," with "vexatious. This change is likely to benefit employers by broadening the threshold for what is considered an unreasonable request.
Retained EU Law- Discrimination
Some discrimination law in the UK originated from the European Union and would be repealed unless replaced by UK legislation. The Equality Act 2010 (Amendment) Regulations 2023 have been published in draft, with the aim of amending the Equality Act 2010 so that certain aspects of EU discrimination law remain part of UK law. In particular:
- EU case law had established that associative indirect discrimination was unlawful if an individual suffered from a disadvantage by being associated with a particular group, even if they did not actually possess the protected characteristic. The Regulations will preserve this.
- The ’single source’ comparator test will be preserved by providing that an equal pay comparison can be made where there is a single body that is responsible for setting or continuing the terms on which the claimant and comparator are employed, and which is in a position to ensure equal treatment between them.
- EU law had established that when assessing whether a medical condition meets the threshold for "disability" courts should place weight on the impact on workplace activities. The draft regulations aim to preserve this by amending the definition of disability in the Equality Act 2010.
- Other protections to be preserved by the Regulations include specifying that less favourable treatment on the ground of breastfeeding constitutes direct discrimination on the ground of sex; and that women are protected from unfavourable treatment after they return from maternity leave where that treatment is in connection with the pregnancy or a pregnancy-related illness.