GFTU Emplaw Monthly - March 2023
NEW FROM OUR AUTHORS
Will the Worker Protection Bill help employers’ #EmbraceEquity for women?
With International Women's Day approaching on 8th March, Emplaw authors Lewis Silkin have published a useful article looking at why changes to current protections may be needed, the progress of the Bill and what it may mean.
Artificial Intelligence – Help! My Manager Is a Machine
An on-demand webinar by Emplaw authors Gowling WLG looking at what AI means for employment law and the employment relationship, and the profound questions that still need answering.
EMPLOYEE/ADVISOR NEED TO KNOW
Draft National Minimum Wage (Amendment) Regulations 2023 published
The draft National Minimum Wage (Amendment) Regulations 2023 have been laid before Parliament, reflecting the rates announced in the chancellor's Autumn Statement in November 2022. They will come into effect from 1 April 2023.
The new rates from 1 April 2023 will be:
Age 23 or over (NLW rate): £10.42 (up 9.7% from £9.50)
Age 21 to 22: £10.18 (up 10.9% from £9.18)
Age 18 to 20: £7.49 (up 9.7% from £6.83)
Age 16 to 17: £5.28 (up 9.7% from £4.81) Apprentice rate: £5.28 (up 9.7% from £4.81)
Accommodation offset amount: £9.10 (up 4.6% from £8.70)
McDonald's signs binding agreement with EHRC to improve handling of sexual harassment allegations
McDonald's has signed a legal agreement with the Equality and Human Rights Commission (EHRC) in response to concerns over its handling of sexual harassment complaints by staff in its UK restaurants.
Under such ‘section 23’ agreements (so named because that is the section in the Equality Act 2006 that provides for them) an organisation commits to not breaching equality law, usually in a specific area where there have been previous concerns. Whilst signing such an agreement is voluntary, if an organisation refuses the offer of an S 23 agreement, the EHRC will consider using their other legal or regulatory powers.
Under the section 23 agreement between the EHRC and McDonald’s, the restaurant chain has committed to:
- Communicating a zero tolerance approach to sexual harassment.
- Conducting an anonymous survey of workers about workplace safety.
- Enhancing policies and procedures to prevent sexual harassment and improve responses to complaints.
- Delivering anti-harassment training for employees.
- Introducing specific training and materials to help managers identify areas of risk within their restaurants and take steps to prevent sexual harassment.
- Supporting the uptake of policy and training materials by franchisees within their independent organisations to support reporting of sexual harassment.
- Monitoring progress towards a safe, respectful and inclusive working environment.
Employment matters to sit within new Department for Business and Trade
Over recent years, we have got used to business guidance emanating from the Department for Business, Energy and Industrial Strategy (BEIS). However the Prime Minister has now split BEIS into four new government departments including The Department for Business and Trade (DBT) where it would appear that employment policy and regulation will sit.
Trial of four-day working week successful for most
The trial, reported in Emplaw Monthly in June 2022 has now been completed with nearly all participating companies (56/61) opting to continue with the new pattern as staff report better work-life balance. The survey is of course a small one and concerns have been expressed about what could be lost in compressing working hours.
Eighteen of the fifty-six businesses who will continue the practice have made the change permanent.
Of the sixty-one companies that took part, the largest group are in the marketing/advertising sector, with eight firms (18%). The second largest subset is professional services with seven (16%), with charities/non-profits being the third largest group (11%). Beyond that, the companies are distributed over a range of industries, including healthcare, arts & entertainment, retail, construction and manufacturing.
The findings of the trial have been presented to MPs as part of efforts to promote a 32-hour week for workers in Britain.
Some employers have raised concerns about whether the positive impact would be ongoing and what could be lost in compressing working hours.
REPORTS AND CONSULTATIONS
Joint Committee on Human Rights inquiry into protection of human rights at work
The parliamentary Joint Committee on Human Rights has issued a call for written evidence on how rights under the European Convention on Human Rights are currently protected at work. The deadline for submitting evidence is 24 March 2023.
The Committee is seeking submissions in answer to questions in connection with:
- Freedom of association (Article 11) and the right to strike.
- The right to privacy and surveillance at work, taking into account the Article 8 right to private and family life and whether there are associated concerns about discrimination (Article 14).
- Freedom of thought, conscience and religion (Article 9) and freedom of expression (Article 10) in the workplace.
- Labour market exploitation (Article 4 prohibits slavery, servitude and forced or compulsory labour).
- Retained EU Law and workers’ rights, the extent to which the UK's compliance with its human rights obligations, in relation to the protection of workers, is currently dependent on retained EU law.
- International human rights treaties, whether the UK effectively complies with its international obligations to protect workers' rights.
Consultation on panel composition in the employment tribunals and EAT
The Senior President of Tribunals (SPT) has launched a consultation on panel composition in the employment tribunals and the EAT. The consultation includes eight specific questions about the SPT's proposals and closes on 27 April 2023.
Consultation on removing the bonus cap
The FCA and PRA joint consultation on removing the cap that currently applies to bankers’ bonuses closes on 31 March 2023.
The bonus cap applies to UK banks, building societies and designated investment firms, and is set out in PRA and FCA rules. The effect of the cap is to limit the ratio of a bonus to fixed pay, so that an employee’s bonus (or variable pay) is no bigger than 100% of their fixed annual pay, or 200% if there is approval from the employer’s shareholders.
Nightingale Courts to remain open
A total of 24 temporary courtrooms, which were set up to boost capacity during the pandemic, will remain open in 2023 to allow more cases to be heard.
Bill to give right to request predictable work patterns backed by Government
The Workers (Predictable Terms and Conditions) Bill would amend the Employment Rights Act 1996 (ERA 1996) to give workers and agency workers the right to request a predictable work pattern using a process which largely reflects the right to request flexible working process. Hence, it is a right to request and not a right to have, and an employer could reject the request on the same statutory grounds.
The roots of the Bill lie in the recommendations of the Taylor Review in 2017 that measures should be introduced to address the problem of "one-sided flexibility" where a worker has no guarantee of work but is expected to be available at very short notice when required. In 2019, the government consulted on proposals made by the Low Pay Commission, to address the issue. The outcome of this consultation is yet to be published but there was speculation that proposals would be included in an Employment Bill in 2022 .The anticipated Employment Bill did not materialise but on the second reading of the private member’s Workers (Predictable Terms and Conditions) Bill in February 2023 the government announced its support for the Bill.
If passed, the Bill would amend the Employment Rights Act 1996 to give workers and agency workers the right to request a predictable work pattern. 'Predictable’ is not defined but interestingly fixed term contracts of 12 months or less are presumed to lack predictability and so employees on such fixed term contracts would fall within the remit of the Bill.
An employee would have the right to request a predictable work pattern where:
• There is a lack of predictability as regards any part of their work pattern
• The change relates to their work pattern.
• Their purpose in applying for the change is to get a more predictable work pattern.
Two applications may be made in a 12-month period.
The Bill would enable the Secretary of State to make relevant regulations and a service requirement of 26 weeks is expected to be introduced.
Workers and agency workers would have the right not to suffer a detriment for making an application under the procedure or for bringing proceedings to enforce the statutory right to request a predictable work pattern. It would also be automatically unfair to dismiss an employee for making an application under the statutory procedure or for bringing proceedings to enforce the statutory right.
Worker Protection (Amendment of Equality Act 2010) Bill passes to Lords
This Bill which includes employee protection against third party harassment, for example by customers and clients, is now making its way through the Lords.
Employers will be liable if they fail to take all reasonable steps to prevent such harassment and liability can apply to the first incident of harassment that occurs.
Employers will not however be liable where the harassment involves a conversation in which the claimant is not a participant, the conversation contains the expression of an opinion on a political, moral, religious or social matter, the opinion expressed is not indecent or grossly offensive, and the expression of the opinion is not intended to be harassment (i.e. does not have the purpose of violating the employee’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee).
The Bill will also introduce a specific duty on employers to take all reasonable steps to prevent sexual harassment of employees in the course of their employment. Breach of this duty will be enforced by the Equality and Human Rights Commission in the same way as it can enforce certain other provisions of the Equality Act 2010. Employees will not be able to bring a standalone claim based on an employer failing in this preventative duty but if employees are successful in bringing a sexual harassment claim under the Equality Act 2010 and can show the employer has breached this new duty, then an Employment Tribunal will have the power to uplift the compensation awarded to employees by up to 25%.
The Bill’s main provisions are set to come into force a year after it passes, giving employer’s time to adapt to the changes.
The House of Commons has published a Research Briefing on the Bill
For information on the background to the Bill and the issue of third party harassment, please see the Emplaw Law Card on Harassment (Emplaw Online subscribers only).
Protection from Redundancy (Pregnancy and Family Leave) Bill
The Redundancy (Pregnancy and Family Leave) Bill is also now making its way through the Lords. The Bill would enable the Secretary of State to make regulations to extend redundancy protection to pregnant women and new parents returning to work from adoption leave or shared parental leave.
This Bill would amend the Employment Rights Act 1996 to enable the Secretary of State to make regulations about:
- Redundancy during, or after, a protected period of pregnancy including provision requiring an employer to offer alternative employment.
- Redundancy during, or after maternity leave, adoption leave or shared parental leave.
The detail will be provided by Regulations but, in its response to the consultation on Pregnancy and maternity discrimination: extending redundancy protection for women and new parents in July 2019, the government confirmed its intention that:
- The redundancy protection period (i.e. the period during which, before offering redundancy, employers have an obligation to offer a women on maternity leave a suitable alternative vacancy where one exists Reg 10 MAPLE) should apply from the point the employee informs the employer that she is pregnant, whether orally or in writing.
- The redundancy protection period should be extended for six months once a new mother has returned to work and similar protection should be given to those returning from adoption and shared parental leave.
During the debate on the Bill, on its third reading in the House of Commons, the government minister spoke of a potential requirement for six consecutive weeks of leave to be taken to qualify for extended leave as the purpose of the qualification period is to ensure that the measures are targeted at those who need them most—those who have taken an extended period of leave, not just, for example, two weeks’ paternity leave. ‘Consultations’ he said ‘are ongoing, and we are giving the issue earnest consideration’.
This Act comes into force at the end of the period of two months beginning with the day on which it is passed.
There is as yet no timeline for when any draft regulations will be published.
For more information on the background to the Bill and, please see Emplaw Monthly October 2022
Carer’s Leave Bill
This Bill, which enables the Secretary of State to make regulations to entitle employees who are unpaid carers to one week's unpaid leave a year, is also now making its way through the Lords. For background and more information see GFTU Emplaw Monthly - End of October 2022 | Emplaw
Employment (Allocation of Tips) Bill
The Bill is also before the Lords. It includes requiring employers to ensure that all tips, gratuities and service charges be paid to workers in full by the end of the following month and provides for the Secretary of State to introduce a new code of practice about the fair and transparent distribution of qualifying tips, gratuities and service charges.
For background and more information see GFTU Emplaw Monthly – July 2022 | Emplaw
Employment Relations (Flexible Working) Bill
The Bill which adds more flexibility into the right to request flexible working process is also in the Lords. Notably the right to request flexible working as a day one right is not covered by the Bill (the government separately confirmed, in December 2022, its intention to legislate to make the right to request flexible working a day one right). For background and more information see GFTU Emplaw Monthly January 2023.
Neonatal Care (Leave and Pay) Bill
Now also in the Lords, the Bill will amend the Employment Rights Act 1996 to provide for parents and those in a personal relationship with a child to take an additional 12 weeks of paid leave, so that they can spend more time with the baby receiving neonatal care.
The amendments give power to the Secretary of State to make detailed regulations around the exercise and extent of the right. For background and more information see GFTU Emplaw Monthly July 2022.