GFTU Emplaw Monthly - End of October 2022
GFTU Emplaw Monthly – End of October 2022
NEW FROM OUR AUTHORS
Employment Law Update Webinar
Free employment law update webinar, aimed at employers and their HR teams, on 7th December 2022, from Emplaw authors Moorcrofts.
For more information and to register click here
Employee musical chairs: can employers leave redundancy selection to a game of chance?
A pertinent Blog from Emplaw authors Cloisters, discussing the case of Mogane v Bradford Teaching Hospitals NHS Trust  UKEAT 139 which reminds employers of the need for genuine consultation and reasonable selection criteria when choosing which employees to dismiss and which to keep on.
EMPLOYER/ADVISOR NEED TO KNOW
New online tool to help employers support disabled employees
The government has announced a new online service, aimed at smaller businesses, that will provide information and advice about how to support and manage employees with disabilities or health conditions, whether they are in or absent from work.
A test version is active which includes questions about the situation an employer faces (for example if they know or don’t know about a disability) and provides advice based on the answers, including useful guidance on holding the necessary, but sometimes difficult conversations.
Acas Guidance on Suspension from work
Acas has published new guidance on suspension from work during an investigation. It reminds employers that they should only suspend someone if there is a serious situation, a need to potentially protect people and there is no alternative.
ICO issues fine of £4.4 million fine for employee data breach
The ICO has a webpage dedicated to the action it has taken, which this week includes a monetary penalty notice served on Interserve Limited for £4.4 million. The fine is imposed for failing to process personal data in a manner that ensured appropriate security of the personal data using appropriate technical and organisational measures which rendered the company vulnerable to a cyber-attack. An attack took place in 2020 and affected the personal data of up to 113,000 of the company’s employees.
IR35 changes not going ahead
The repeal of the IR35 reforms which we covered in the Autumn edition of Emplaw Monthly, are one of the measures since scrapped by the new chancellor Jeremy Hunt.
REPORTS AND CONSULTATIONS
Can an employer use video or audio to record and monitor workers and other questions?
As part of its plans to replace it employment practices guidance, The Information Commissioner's Office (ICO) has published draft guidance on monitoring people at work to answer this and many other questions. The guidance is open for consultation until 11 January 2023.
The guidance replaces the “Monitoring at work” chapter of the DPA98 employment practices code.
The ICO ran a consultation in 2021 (see Emplaw Monthly End of Summer 2021) on its plans to replace its existing guidance (such as the employment practices code, supplementary guidance and the quick guide) with a new, more user-friendly online resource with topic-specific areas. This draft guidance is the first proposed.
The governance of Artificial Intelligence - a call for evidence
The House of Commons Science and Technology Committee has asked for submissions to the inquiry into the governance of artificial intelligence (AI) by 25 November 2022.
AI remains high on the government’s agenda as reported in the Autumn Emplaw Monthly. In this inquiry, MPs will examine the potential impacts of biased algorithms in the public and private sectors and investigate the lack of transparency on how AI is applied and how automated decisions can be challenged. They will explore how risks posed to the public by the improper use of AI should be addressed, and how the government can ensure AI is used in an ethical and responsible way.
The Committee is inviting submissions on the following questions:
- How effective is the current governance of AI in the UK?
- What are the current strengths and weaknesses of the current arrangements, including for research?
- What measures could make the use of AI more transparent and explainable to the public?
- How should decisions involving AI be reviewed and scrutinised in both the public and private sectors?
- Are current options for challenging the use of AI adequate and, if not, how can they be improved?
- How should the use of AI be regulated, and which body or bodies should provide regulatory oversight?
- To what extent is the legal framework for the use of AI, especially in making decisions, fit for purpose?
- Is more legislation or better guidance required?
- What lessons, if any, can the UK learn from other countries on AI governance?
All-Party Parliamentary Group on Menopause Inquiry - concluding report
The report recommends that government must co-ordinate an employer-led campaign to raise awareness of menopause in the workplace and to help tackle the taboo and must promote guidance for employers on best practice menopause at work policies and supporting interventions.
The inquiry looked at all aspects of menopause but found that menopause in the workplace was one the areas that attracted the most interest. With many at the peak of their careers during the menopause transition, this exacerbates gender inequality in senior roles and adds to the gender pay-gap.
LEGISLATION AND LITIGATION
Judiciary.uk - easily accessible information on Tribunals
A new and improved judiciary.uk website had been launched with some pages designed to provide easily findable and easily accessible information on the Employment Tribunal in England and Wales, and Scotland and the Employment Appeal Tribunal. For example the ET pages include details of tribunal current procedure and useful forms and the EAT pages provide details of where to find EAT decisions recent and historic.
Call for evidence – the Retained EU Law (Revocation and Reform) Bill
The House of Commons Public Bill Committee has issued an urgent call for written evidence on the Retained EU Law (Revocation and Reform) Bill. We reported in the Autumn edition of Emplaw Monthly on the Bill, which provides for EU laws which were retained post Brexit and which are not restated, replaced, or revoked by the end of 2023 (although this can be extended to June 2026) to cease to be on the statute book.
Despite recent upheavals, this Bill continues through parliament having been passed to the Committee following its second reading on 25 October 2022. The Committee strongly advises that any written evidence is submitted as soon as possible, because the Committee may conclude its consideration of the Bill earlier than the expected deadline of Tuesday 22nd of November.
Government backs Carer's Leave Bill
The government has backed legislation for up to one week’s unpaid leave to provide or arrange care for a dependant with a long-term care need. Employees would be eligible from the first day of their employment for a week’s leave during any period of 12 months.
Legislation to provide for carer's leave was expected this year in an Employment Bill following the government’s response to a carer’s leave consultation, published in October 2021. No such Bill has materialised, but the government has backed a private members Bill introduced by Liberal Democrat, Wendy Chamberlain. The Bill passed its second reading with government support on 21 October 2022.
The Bill would amend the Employment Rights Act to allow for Regulations to be made. The accompanying press release provides that staff will be able to take the leave flexibly to suit their caring responsibilities and will not need to provide evidence of how the leave is used or who it will be used for. Employees taking their carer's leave entitlement will be subject to the same employment protections that are associated with other forms of family-related leave, meaning they will be protected from dismissal or any detriment as a result of having taken time off.
Government backs Protection from Redundancy (Pregnancy and Family Leave) Bill
The Bill would extend redundancy protection to pregnant women as well as new parents returning to work from a relevant form of leave.
Legislation to provide for this protection was again expected in an Employment Bill, following the government’s response to consultation, published back in July 2019. Whilst the Bill has not materialised, the government has backed a private members Bill introduced by Labour MP, Dan Jarvis. The Bill passed its second reading with government support on 21 October 2022.
When a parent is on a relevant period of leave, before offering redundancy, employers already have an obligation to offer them a suitable alternative vacancy where one exists. This is set out in Regulation 10 of the Maternity and Parental Leave Etc Regulations 1999 (MAPLE).
The policy intention is that new Regulations will apply the MAPLE protections through an expanded period covering from when a woman tells her employer she is pregnant until 18 months after the birth. The 18-month window ensures that a mother returning from a year of maternity leave can receive 6 months additional redundancy protection. The 18-month window will also apply to Maternity Leave and Shared Parental Leave.
This path of backing a private members Bill was also followed by the government in July this year in respect of the Employment (Allocation of Tips) Bill and the Neonatal Care (Leave and Pay) Bill (see July’s Emplaw Monthly), which are both now at the report stage.
Transport Strikes (Minimum Service Levels) Bill
On 20 October 2022, whilst Liz Truss was still in office, and despite substantial opposition, the Transport Strikes (Minimum Service Levels) Bill had its first reading in the House of Commons. The Bill would amend the Trade Union and Labour Relations (Consolidation) Act 1992 to provide for a legal framework for establishing, between employers and Trade Unions, minimum service levels during strike periods.
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