GFTU Emplaw Monthly - October 2023
NEW FROM OUR AUTHORS
Labour confirms plans for employment law
A very informative article from Lewis Silkin covering the speech from the deputy leader at the TUC conference, and what else we know about Labour’s wide-ranging proposals for reform.
A helpful reminder for employers on post-termination situations
This article, from Gowling WLG, reviews the recent case of Giacomodonato v Peartree Securities and sets out helpful takeaways for employers regarding employment agreements, restrictive covenants, and post-termination conduct.
EMPLOYER/ADVISOR NEED TO KNOW
Angela Rayner, Labour's deputy leader, commits to introducing employment Bill within 100 days
Building on the commitments Labour made in A New Deal for Working People, Ms Rayner, speaking at the TUC annual conference on 12 September 2023, made a "cast iron commitment" that Labour would introduce an Employment Rights Bill within the first 100 days of entering office.
A New Deal for Working People is the Green Paper published in 2021 which set out details of Labour’s commitments to decent work, secure work, safe work, and fair work.
Ms Rayner’s speech included confirmation that:
- The Strikes (Minimum Service Levels) Act 2023 and the Trade Unions Act 2016 will be repealed.
- Trade unions will be given a new right to access workplaces, allowing them to meet, represent, recruit, and organise members.
- The statutory recognition process will be simplified so that gig economy and remote workers can meaningfully organise through trade unions.
- Plans exist to ban zero-hours contracts, bring in a "proper living wage that people can actually live on" and strengthen sick pay, making it available to all workers including the lowest earners from day one.
CONSULTATIONS & REPORTS
Consultation issued on minimum service levels (MSLs) for hospitals
The Strikes (Minimum Service Levels) Act 2023 requires the government to consult before bringing forward regulations implementing MSLs. The government has now launched a consultation on MSLs covering urgent, emergency and time-critical hospital-based health services. It closes on 14th November 2023.
For further information on the Strikes (Minimum Service Levels) Act 2023 and the requirement for agreed MSLs, please see last month’s Emplaw Monthly including the Cloisters article and Consultation on "reasonable steps" under the Strikes (Minimum Service Levels) Act 2023.
The consultation on MSLs covering urgent, emergency and time-critical hospital-based health services follow consultations earlier this year on MSLs in passenger rail services, fire and rescue services and ambulance services.
This latest consultation seeks views on a draft set of principles for setting an MSL, including the general proposed aim of ensuring hospitals treat those requiring urgent or emergency hospital treatment or assessment and existing in-patients on strike days in the same way as non-strike days.
NMW compliance and enforcement - 2023 report
The Low Pay Commission has published its annual report on National Minimum Wage compliance and enforcement. It identifies job insecurity as a major factor in the ongoing underpayment of workers.
This year, the Commission has analysed how far the same workers are underpaid from one year to the next. Using data from the Annual Survey of Hours and Earnings (ASHE) covering 2012-2019, they find that one in three workers who are underpaid in a given year are still underpaid the next year. The report finds that the surest way for them to increase their pay and escape underpayment is to move jobs; workers staying in the same job are much more likely to remain ‘stuck’ in underpayment. However, job mobility is constrained through insecure work and desire for ongoing security.
The report also finds that very few workers report underpayment, despite the abundant evidence and anecdote suggesting there are hundreds of thousands of underpaid workers.
The Commission identifies:
- that the biggest wins are likely to come from identifying and addressing the factors associated with vulnerability.
- to do this, more information is needed about the scale and nature of the problem and about whether HMRC (the enforcement body)’s resource is being targeted effectively. The Commission reports that The Director of Labour Market Enforcement is preparing a major survey looking at this.
The Commission recommends the Government:
- Take forward the LPC's 2018 recommendations on one-sided flexibility.
- Ensure more regular naming rounds to create momentum and increase coverage.
- Expand the data HMRC collects to include whether underpayment is formal or informal, the characteristics of underpaid workers and the working arrangements of underpaid workers.
LITIGATION AND LEGISLATION
Workers (predictable terms and conditions) Act passed
The Act, which creates a new statutory right for workers on atypical contracts - such as agency workers, short fixed-term workers, and those on zero-hours contracts - to request a more predictable working pattern, has received Royal Assent. To give time for more detailed regulations to be drafted and to give employers time to prepare for the changes, the legislation is not expected to come into force until September 2024.
For more information on the background to the Act, please see Emplaw Monthly March 2023.
The Act aims to address the issue of 'one-sided flexibility' identified in the 2017 Taylor Review of Modern Workplaces, whereby workers are not guaranteed work but are expected to be available at short notice with a lack of reciprocity.
A working pattern is defined as being the number of working hours, days of the week and times on those days when the worker works, and the contract length. Problematically, the Act does not contain a definition of 'predictability' . It does however specify that fixed term contracts of 12 months or less will be presumed to lack predictability: anyone on such a contract will be able to request that the term is extended beyond 12 months or becomes permanent.
The new right is modelled on the current flexible working regime and will operate in a similar way. Provided employers deal with the application in a reasonable manner and within one month of receiving it, they are able to refuse the request for one or more of the following grounds:
(i)the burden of additional costs,
(ii) detrimental effect on ability to meet customer demand,
(iii) detrimental impact on the recruitment of staff,
(iv) detrimental impact on other aspects of the employer’s business,
(v) insufficiency of work during the periods the worker proposes to work,
(vi) planned structural changes, and
(vii) such other grounds as the Secretary of State may specify by regulations
The right extends to all workers and employees subject to a minimum service requirement, to be defined in Regulations. The government’s press release has indicated that it will be 26 weeks, although it is not expected that workers will need to have 26 weeks continuous employment, given the aim of the legislation is to improve unpredictable working patterns for atypical workers who may be unlikely to have continuous service with the same employer.
Workers can make a maximum of two applications in any 12-month period. The predictable working application must be (i) in writing; (ii) state that it is a statutory predictable working application; and (iii) specify the change applied for and the date on which it is proposed it should take effect.
Failing to deal with an application in a reasonable manner, or rejecting an application based on incorrect facts, will risk a claim based on procedural failings (with compensation likely to be limited to eight weeks' pay subject to the statutory cap).
Workers and agency workers will 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 will 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. There could also be a risk of indirect discrimination claims if requests from certain disproportionately represented groups are more commonly rejected (e.g., women, disabled people, young workers).
ACAS have announced they will publish a new code of practice to provide guidance on making and handling requests and there will be a public consultation on the Code, expected to go live in the coming weeks.
Protection from sex-based harassment in public Bill
On 18 September 2023, the Protection from Sex-based Harassment in Public Bill received Royal Assent. This introduces a new criminal offence of intentional harassment, alarm, or distress to a person in a public place carried out because of a person's sex, or presumed sex. The Act requires systems to be updated, and statutory guidance to be drawn up but the government has said it will ensure that the legislation comes into force "as quickly as reasonably possible".
Workplace conduct legislation update
The Bullying and Respect at Work Bill is a private member's bill currently without government backing and may not proceed but useful to note. The Worker Protection (Amendment of Equality Act 2010) Bill is at the Report Stage in the House of Lords.
The Bullying and Respect at Work Bill seeks to introduce specific statutory protection against bullying and to introduce a Respect at Work Code setting minimum standards for positive and respectful work environments.
Currently there is no statutory definition of bullying and statutory protection only exists where such conduct extends to harassment involving a protected characteristic or where circumstances are such that the individual considers they have no option but to resign and claim constructive unfair dismissal or wrongful dismissal.
Meanwhile, with regards to the Worker Protection (Amendment of Equality Act 2010) Bill, its provisions on third party harassment have been dropped and the legal duty on employers has been diluted to taking ‘reasonable steps to prevent sexual harassment’, but it is likely to be passed . For background on the Bill see Emplaw Monthly for March 2023
Pensions (Extension of Automatic Enrolment) Act 2023
The Act, which received Royal Assent on 18 September 2023, amends provisions in the Pensions Act 2008 to give the Secretary of State powers to make regulations about the extension of pensions automatic enrolment to jobholders under the age of 22, and to make regulations to remove the Lower Earnings Limit from the qualifying earnings band so that contributions are calculated from the first pound earned.
National Minimum Wage exemption for live-in domestic workers to be removed
Draft regulations have been placed before Parliament which will repeal regulation 57(3) of the NMW Regulations 2015 and are expected to come into force on 1 April 2024. From that date, live-in domestic workers previously covered by the exemption must be paid the NMW.
Currently, workers who live in their employer's family home, are treated as a member of the family, and are not charged for food or accommodation, do not qualify for the NMW.
The Regulations do not remove the NMW exemption contained in regulation 57(2) of the NMW Regulations 2015 for actual members of the family in respect of domestic duties where the worker resides at home.