GFTU Emplaw Monthly - November 2023
NEW FROM OUR AUTHORS
The new law on sexual harassment has been passed
An incisive article from Lewis Silkin covering what you need to know and what employers should be doing now.
Expert evidence in employment claims involving disability issues
Barristers Amy Rumble and Andrew Sugarman from Parklane Plowden and Consultant Psychiatrist Dr Devika Colwill discuss expert evidence in employment claims involving disability and give tips on making the most of an expert witness.
Understanding fit notes: what can employers learn from the new guidance?
Following an update to the guidance from the Department for Work and Pensions, Lewis Silkin look at what’s new, and what’s important to remember about fit notes.
EMPLOYER/ADVISER NEED TO KNOW
ICO guidance on lawfully monitoring workers
On October 3, 2023, the Information Commissioner’s Office released a comprehensive guidance document which includes detailed good practice advice and checklists on what an employer needs to consider.
The guidance titled “Employment Practices and Data Protection – Monitoring Workers” follows the public consultation on draft guidance which closed in January of this year (see Emplaw Monthly October 2022).
The guidance aims to help employers fully comply with the UK General Data Protection Regulation and the Data Protection Act 2018.
The guidance defines “monitoring workers” to mean any form of monitoring of people who carry out work on the employer’s behalf. This can include monitoring workers on particular work premises or elsewhere and can include monitoring during or outside work hours. Types of monitoring will change over time, but it can include tracking calls, messages, and keystrokes, taking screenshots, webcam footage or audio recordings, or using productivity tools to track activity.
The guidance confirms that monitoring workers must be done in a way which is consistent with data protection law, equality law and employment law. The employer must identify a lawful basis under data protection law and should only monitor workers in ways they would reasonably expect and not in ways that cause unjustified adverse effects on them.
Monitoring should have a clearly defined purpose and employers should use the least intrusive means to achieve it. Employers should only keep information relevant to the purpose and should carry out a Data Protection Impact Assessment for any monitoring that is likely to result in a high risk to workers' rights.
Employers should have a clear policy which they bring to the attention of workers which outlines the nature, purpose, and extent of any monitoring.
The guidance includes information around the exceptional circumstances in which covert monitoring may be justified.
Living wage increases
In his speech to the Conservative Party conference, the Chancellor committed to increasing the National Living Wage from April 2024 as recommended by the Low Pay Commission. This is forecasted to result in the NLW increasing to over £11 per hour. Meanwhile 10% increases to the voluntary Real Living Wage have recently been announced.
For more information on the National Minimum Wage, the National Living Wage and voluntary Real Living Wage see Emplaw Law Card National Minimum Wage (NMW): Key Card .
Criminal record disclosure timescales reduced for less serious offences
With a view to lifting barriers to work for ex-offenders and reducing reoffending, the length of time some criminal convictions must be declared to employers has been reduced for less serious offences and for custodial sentences of four years or more years (excluding offenders who have committed serious sexual, violent, or terrorist offences).
The changes under the Police, Crime, Sentencing and Courts Act 2022 are now in force, and reduce the period of time before sentences are considered ‘spent’ and therefore do not need to be declared to employers when asked.
If an individual reoffends during their rehabilitation period, they will have to disclose both their original and subsequent offences to employers for the duration of whichever rehabilitation period is longer.
Manifesto for Menopause from by all-party Parliamentary group
The group’s Manifesto for Menopause calls on all political parties to commit to seven reforms ahead of the next General Election. These include mandating large companies (over 250 employees) to introduce menopause action plans to support female employees experiencing menopause, providing specific guidance for SMEs to support employees going through menopause, and introducing tax incentives to encourage companies to integrate menopause into occupational health.
Government guidance on fit notes updated
The Government has updated its guidance “Getting the most out of the fit note: guidance for employers and line managers” to include a checklist detailing key points for discussion with employees who have been issued with a fit note.
This follows recent updates from Acas o its guidance on Fit Notes and Proof of Sickness, Recording and Reducing Sickness Absence, and Absence Tigger points. See Emplaw Monthly September 2023
LITIGATION AND LEGISLATION
Worker Protection (Amendment of Equality Act 2010) Bill has received Royal Assent
The Act amends the Equality Act 2010 to introduce a duty on employers to take reasonable steps to prevent sexual harassment of their employees and gives employment tribunals the power to uplift sexual harassment compensation by up to 25% where an employer has breached that duty. The law will come into effect in October 2024.
The proposed provisions on third party harassment were dropped during passage of the Bill and the legal duty on employers has been diluted from the original proposal to take ‘all reasonable steps to prevent sexual harassment’. For background on the Bill see Emplaw Monthly for March 2023.
The law already provides a defence to a harassment claim if the employer can show they had taken all reasonable steps to prevent it from happening. Whilst this encourages employers to take such steps, the new law goes further by placing a positive duty on all employers to take measures to prevent sexual harassment. (see also the Lewis Silkin article above).
Economic Crime and Corporate Transparency Act receives Royal Assent
The Act, which aims to tackle economic crime and improve corporate transparency, introduces a new corporate offence of failure to prevent fraud for large organisations and widens corporate criminal liability for economic crimes committed by senior managers. Further government guidance will be published before the offence comes into force.
The offence will:
- apply where a fraud offence is committed which is intended to benefit the organisation
- apply to all large organisations (those meeting two out of three of the following criteria: over 250 employees; turnover in excess of £36 million; assets in excess of £18 million)
- have a 'reasonable procedures' defence, i.e., it will be a defence if an organisation can show it has adopted reasonable procedures to prevent fraud. The Secretary of State will provide guidance about the procedures (anticipated to be based on the guidance provided to accompany the Bribery Act on the 'failure to prevent bribery’ offence)
The Act contains a range of other measures dealing with aspects of economic crime, including enforcement over crypto assets and money laundering, but much of the Act is focused on improving the oversight and transparency of corporate structures in the UK and gives substantial new powers to Companies House.
REPORTS AND CONSULTATIONS
Code of Practice on handling requests for a predictable working pattern
Following the recent enactment of the Workers (Predictable Terms and Conditions) Act 2023, Acas has launched a consultation on its new draft statutory Code of Practice, which aims to effectively support compliance with the law and guide good practice in the workplace. The consultation closes on 17th of January 2024.
The Workers (Predictable Terms and Conditions) Act 2023 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. It is expected to come into force about September 2024. For more information, please see Employer Monthly October 2023.
Interestingly, the draft code confirms that an agency worker has a statutory right to make a request to their agency or hirer and, if to the hirer, the request can be for a worker or employee contract direct with the hirer.
The draft code also includes other anticipated information such as:
- 26 weeks service is required before a request can be made
- A meeting should be arranged to discuss the request without unreasonable delay
- Employers should (but not ‘must’) give the worker a right to be accompanied at any meeting to discuss the request
- Requests must be handled in a reasonable manner and should be given careful consideration. This includes taking account of the reasons for the individual's request as well as the needs of the organisation
- There is a statutory one-month decision period for requests
- Employers, agencies, and hirers must accept a worker's request unless there is a genuine business reason (as set out in the Employment Rights Act and in the Code) not to
- If the worker's contract ends during the one-month decision period, there are wider reasons that can be relied on to turn down the request
- Where the organisation is considering rejecting a request, they should consider whether there are alternative and suitable arrangements for providing more predictability and, if so, they should discuss this with the individual
- Workers should be given the right to appeal
Government proposes minimum service levels for schools and colleges
The government has taken further steps in progressing plans to introduce service levels (MSLs) under The Strikes (Minimum Service Levels) Act 2023, this time in schools and colleges, and universities.
For background information see Emplaw Monthly for October 2023.
The government announced in early October that it will publish a consultation on minimum service levels in universities, although that does not seem to be yet available.
The government has also announced that it proposes to introduce MSL's in schools and colleges. The Education Secretary has written to union leaders inviting them to discuss proposals on a voluntary basis in the first instance. However, if voluntary agreement cannot be reached, she confirmed that the government will use its powers under the Strikes Act to issue a consultation.
EHRC respond to government's Disability Action Plan consultation
The Equality and Human Rights Commission responded to the government's consultation on the proposed 2023 to 2024 Disability Action Plan (Plan).
For background see Emplaw Monthly August 2023.
Report on Plan for Jobs and employment support: government response
The government’s response to this report, from the House of Commons Work and Pensions Committee, provides interesting insight into its approach to encouraging greater employment among demographic groups in which there are high levels of economic inactivity.
For example, the government;
- Is not proposing to establish any age-specific schemes for employers to encourage older workers back to the workplace but will encourage employers to develop age-inclusive policies.
- Cites its recent appointment of a Menopause Employment Champion
- Cites its current consultation on the Disability Action Plan (see Emplaw Monthly August 2023 and above)
- Confirms that when the High Court ruled, in January 2022, that its National Disability Strategy (NDS) was unlawful it paused work directly related to the Disability Confident review that had started in 2021. However, in light of the Court of Appeals decision in July to confirm the legality of the NDS, the government has re-examined the evidence gathered and the initial review findings, and officials are refining the recommendations
- Confirms that the responses to the recent consultations regarding uptake of occupational health provision and tax incentives to support such provision (see Emplaw Monthly August 2023) will inform potential policy proposals for increasing access to occupational health services and improving employee health in the workplace