28 new changes the Labour government have announced to employment law

The Labour government have announced 28 new changes to employment law. These changes will impact every business in the UK. Navigating these changes can be difficult, and getting it wrong will be costly and damaging.

Some of the changes include:

Day one rights – The current “2 year rule” will be changed to day 1. This will fundamentally change the way you manage your staff.

Zero Hour contracts will be banned – Regular hours will need to be offered to employees.

Working flexibility for all – Requesting a four day week or changes to working hours will be a day one right for employees.

Enhanced rights to sick pay – Your employees will need to be paid more when they are off sick,

What does this mean for you as an employer and your business?

In light of these changes, it is crucial your company’s documentation, contracts, and policies are updated and it is vital that you prepare for these changes in advance. You must also ensure that these changes are communicated to your employees through  training, meetings, or written format.

The Worker Protection (Amendment of Equality Act 2010) Act 2023

The Worker Protection (Amendment of Equality Act 2010) Act 2023 came into force on 26 October 2024, laying down that employers have a positive legal duty to take reasonable steps to prevent sexual harassment of their workers.

Earlier this year, the Equality and Human Rights Commission (EHRC) consulted on a revised version of its 2020 technical guidance covering these new responsibilities.

Now, the Commission has published that updated guidance to help employers to understand their legal responsibilities in relation to harassment and victimisation, the steps they must take to prevent sexual harassment at work and what they should do if harassment occurs.

Available on the EHRC website, Sexual Harassment and Harassment at Work: Technical Guidance provides help for workers and lawyers and gives employment tribunals and courts clear guidance on the law on harassment and victimisation, the legal scope of the preventative duty and best practice on the steps that employers could take to prevent and deal with harassment and victimisation.

The guide:

  • sets out, with examples, a definition of harassment (with a note on how this relates to a protected characteristic) and unwanted conduct
  • examines the meaning of victimisation
  • considers obligations and liabilities under the Act
  • emphasises that employers can and must take action to change workplace behaviours and eradicate harassment in the workplace.

It goes into detail on the preventative duty and on complicated areas such as third-party harassment and employer liability, harassment by a colleague outside of work, indirect discrimination and harassment of former workers.

The Commission makes clear that, if an employer does not comply with the preventative duty, it has the power to take enforcement action and it gives details of potential increases in compensation at an employment tribunal for sexual harassment.

Employers must be proactive in assessing risk, identifying action, and regularly reviewing processes.

How can we help?

  • develop and widely communicate a robust anti-harassment policy, which includes third-party sexual harassment
  • carry out regular risk assessments to identify where sexual harassment may occur and the steps that will be taken to prevent it
  • be aware of what is happening in the workplace and any warning signs by engaging with staff through personal meetings, surveys and exit interviews.
  • offer training to line managers / supervisors, so you can be seen to be proactive and taking the changes seriously.

Clocks change this weekend

Clocks spring forward this weekend

In the UK the clocks go forward one hour at 1am on Sunday 26th March 2023 when we move to British Summer Time (sometimes called Daylight Saving Time). Most people will miss when the clocks actually change, although there will no doubt be the brief moment of confusion in the morning when we try to work out what the time actually is.

For some, however, who work overnight, they will see and feel the effects of this. So, what should employers do for those that are working overnight between Saturday 25th March and Sunday 26th March 2023?

Impact on pay and working hours 

When the clocks change in October, employers are faced with concerns about working an extra hour and how to adjust pay for that time, especially for those paid minimum wage. In springtime, however, the concern is more likely to be that employees will technically be working an hour less in their shift as a result of the clock change; for example, an employee working an eight-hour shift will actually only work for seven hours.

Payment for this time will come down to what is written in the contract of employment. If it sets out that the worker is entitled to hourly pay, paid for every hour they work, then they will only receive payment for seven hours. If, however, the employee is salaried, they will more than likely receive their usual pay regardless of whether they work one hour less. This is because a salaried employee is more likely than an hourly paid employee to be required to work extra hours without additional pay and to be entitled to pay even if they work fewer hours.

Be consistent 

Subject to any contractual constraints, it is up to employers how they deal with this matter as long as they are consistent and fair in their decision. They may, for example, ask the employee to work an extra hour or simply “write it off”.

Be prepared 

Employees due to work when the clocks go forward should be reminded that this will happen and told how their employer will be dealing with it. In particular, those due to start work early on Sunday morning are most likely to be caught out, so a reminder of the rules on lateness would be appropriate, as well as encouraging them to prepare for the change.

National Minimum Wage, National Living Wage, SSP, SMP etc. 2023/2024 rate increases

National Minimum Wage, National Living Wage, SSP, SMP etc. rates 2023/2024

The Department for Work and Pensions has published its annual rate increases for 2023/2024.

The annual increase to the National Minimum Wage and National Living Wage are as follows:-

  • 23+ – £10.42 (previously £9.50)
  • 21-22 – £10.18 (previously £9.18)
  • 18-20 – £7.49 (previously £6.83)
  • 16-17 – £5.28 (previously £4.81)
  • apprentices – £5.28 (previously £4.81)

The accommodation offset will be £9.10 per day (previously £8.70).

The rate for Statutory Maternity Pay (SMP), Statutory Paternity Pay (SPP), adoption pay (SAP), shared parental (ShPP) and parental bereavement (SPBP) pay will increase to £172.48 per week (previously £156.66). The rate for Statutory Sick Pay (SSP) will increase to £109.40 per week (previously £99.35).

These changes will take effect in April 2023.

Baby Loss awareness week: 9th -15th October 2022

Between the 9th and 15th October 2022 is Baby Loss Awareness Week. Now in its 20th year, it is a time for those affected to remember their lost loved ones, and to raise awareness of baby loss.

Workplace support

How an individual deals with baby loss will be unique to them, shaped by their journey to becoming pregnant and the circumstances of the loss. Because of this, it is important not to treat all those impacted by this the same, but instead treat them as individuals and be guided in how they wish to be supported.

That being said, there are some basic measures employers can put in place to support their staff, such as making counselling available to employees, either via an Employee Assistance Programme (EAP) provider or directly with a local counselling service.

Employers should also ensure their managers are well trained in dealing with these conversations sensitively. They may get actively involved in the delivery of support, or act as a signpost to resources that either the organisation or external sources offer.

Parental Bereavement Leave

Parental Bereavement Leave and Pay is available to parents whose child dies under the age of 18, or is stillborn after 24 weeks. This applies regardless of the employee’s length of service.

Parental Bereavement Leave can be taken as either:

  • two weeks together
  • two separate weeks
  • one week alone

The leave can start on or after the death or stillbirth and must finish within 56 weeks of the death or stillbirth. If Parental Bereavement Leave is interrupted by another type of statutory leave, such as a pre-arranged period of Shared Parental Leave, any remaining Parental Bereavement Leave can be taken after the other leave has ended.

Maternity Leave

In cases of stillbirth after 24 weeks, or where the baby was born living at any point in the pregnancy, both Ordinary and Additional Maternity Leave is still available to the mother.

However, she may wish to bring forward her return date (or she may not). The normal notice rules for altering a return date from Maternity Leave will apply (28 days written notice), although employers may use their discretion to waive this, given the circumstances.

Paternity Leave

Paternity is also available where the baby is stillborn after 24 weeks, or born living at any point in the pregnancy.

Shared Parental Leave

To take this leave, it must have been booked before the baby died, which will have involved the mother curtailing her maternity leave in order to ‘share’ leave. As such, it is unlikely that this leave will have been arranged where the baby is lost early on in the pregnancy. Employers may therefore decide to use their discretion to allow some other form of leave to be taken.

Sick Leave

Losing a child can be devastating, and the employee may be too unwell to work. If this is the case, the usual organisational sickness rules will apply, i.e. sick pay and certification.

A note on miscarriage

Under the Equality Act 2010, both sex and pregnancy and maternity are protected characteristics as under section 4. This protection continues for two weeks after a miscarriage.

In the case of Stokes v Glenham Property Management Ltd, the claimant lost her baby via miscarriage. She was absent from work on pre-booked annual leave, and was then signed off work before returning to work, taking her over two weeks since the miscarriage.

Shortly after, the claimant was dismissed via a letter, stating that she was “not fit to complete [your] role” due to absence, leading to a claim of discrimination. Finding for the claimant, the tribunal recognised that whilst the two-week time limit had ended at the point of dismissal, nevertheless this was sex discrimination by reason of dismissal due to the miscarriage, which is unique to the female sex.

Next steps

This is a week for employers to assess what support they offer, and re-promote it, or consider introducing it. It is also an opportunity to review internal policies and procedures, to ensure they accommodate baby loss by giving the employee time to come to terms with the loss without worrying about work.

Bank holiday confirmed for date of Queen Elizabeth II funeral

The government has announced that Monday 19 September 2022 will be a national bank holiday in all parts of the UK for Her Majesty Queen Elizabeth II’s State Funeral. This will also mark the last day of the period of national mourning following The Queen’s death on 8 September 2022.

Government guidance provides that this bank holiday can be treated the same as other bank holidays, which means that some employers may choose to treat this the same as other additional bank holidays. There is no statutory right to time off so employers will need to review their contracts of employment to determine whether their staff are entitled to time off on this additional bank holiday, for example:

  • contracts which say employees have a right to 20 days’ annual leave plus time off on 8 public/bank holidays, (or 19 days plus 9 bank holidays in Scotland) where the bank holidays are listed and there is no extra flexibility in the wording, will not have an automatic right to time off
  • contracts which give a right to 20 days’ annual leave plus 8 public/bank holidays but do not list the bank holidays gives the employer some flexibility to move leave around, i.e. the employer in this scenario could give staff this extra day off but require them to work on another public/bank holiday
  • employees who have a contractual right to all public/bank holidays will be entitled to the extra day off
  • employees whose contracts give them 28 days’ annual leave including all public/bank holidays have a right to the extra day’s leave but it will be deducted from their 28 days’ annual leave so effectively they will have fewer days on which to ‘choose’ to take leave.

Employers should check their contracts carefully for any other flexibility in the wording such as “8 public/bank holidays as listed, or other days as determined by us” which may allow the employer to give staff the extra day off but require them to work on another public/bank holiday.

Of course, where contracts do not include an automatic right to time off, employers can choose to give their employees an additional day of paid leave or staff can make an annual leave request in the usual way. In a press release published on 10 September 2022, the government encourages employers to respond sensitively to requests from workers who wish to take time off. Employers should be mindful that national events can affect individuals in different ways and can have an impact on their personal health and wellbeing.

For workers who are required to work on the day of the funeral, there are no statutory rules regarding extra pay on bank holidays. This will depend on the wording of the worker’s contract and any custom and practice that has been set on previous bank holidays.

The government currently has no plans for this additional bank holiday to mark The Queen’s funeral to become an annual bank holiday. It is yet to be decided if there will be a bank holiday for the coronation of His Majesty King Charles III which is not expected to take place for some time.

Hot Weather and Managing Staff

With longer days and higher temperatures, summer is likely an exciting time for both you and your employees. That said, you need to be ready for the issues the hot weather can cause in the workplace.

Summer issues for employers and how to deal with them

1. Keep everyone cool!

Whilst the law does not say how hot or cold your workplace should be, temperatures need to be ‘reasonable’.

Keep staff cool by allowing them to switch on fans and air conditioning or ‘dress down’ on hotter days if possible.

2. Remember more vulnerable workers

Some members of staff may be more affected by hot weather, such as those with a disability or pregnant women.

You can help by allowing these employees to take more breaks, move to cooler areas or even work from home temporarily.

3. Prepare for transport disruption

Hot weather can cause issues in the daily commute and you should try to be more understanding if staff are late for work. For example, trains may go slower to prevent tracks from buckling.

Employees should also be encouraged to plan ahead of their journeys and make allowances for delays.

4. Be ready for holiday requests

Everyone can’t be off at once and leave requests are likely to overlap, for instance during the school summer holidays.

It is a good idea to have a first-come, first-served system in place. That way, you can help to avoid one employee being prioritised over another.

5. Look out for unauthorised time off

Employees who are refused a holiday request may take the time off anyway. Alternatively, you may suspect a member of staff is ‘pulling a sickie’.

It is important not to jump to conclusions and conduct a full investigation into the absence. From here, it may become a disciplinary issue.

6. Check on your homeworkers

You aren’t expected to install air conditioning in your employees’ homes, but they should have the same rights as those working in the office. For example, more vulnerable staff should take more breaks, even when working remotely.

Absence Management

Employers often find absence a tricky thing to manage. There is a need to balance compassion for the individual, the realities of life (we all get ill or injured at some point) and the sound running of the business.

With scenes of chaos at airports and stories of flights cancelled at the last minute, Covid once again is to blame for disrupting our lives. In this case, it is due to high absence levels as a result of employees forced to isolate due to the risk of spreading a highly contagious virus that has affected so many people.

So what should employers do about absences, especially where the employee must stay off but feels fine?

The importance of a procedure

A robust absence management procedure is essential. It can help employers gain an overview of absence levels, manage excessive absences and put in place reasonable adjustments for disabled employees.

Setting expectations

Key to managing absence is setting out expectations. Reasonable expectations of average absence levels are good to set out and act as triggers for action should absence levels exceed them. What is reasonable, of course, will depend on the organisation, the nature of the work and the individual employee. However, setting general standards (that are adjusted on an individual basis) is still a valuable exercise.

Adjusting expectations

Some employees may have high absence levels due to a condition that affects their ability to perform day-to-day tasks on a long-term basis and, as such, constitute a disability under the Equality Act 2010. Where this is the case, employers must act carefully so as not to treat these employees less favourably than their colleagues.

Where there is a disability, the Equality Act 2010 requires employers to make reasonable adjustments to accommodate the disability to enable the employee to perform their duties. These reasonable adjustments also apply to absence triggers, and depending on the nature and severity of the disability, these may need to be either adjusted for the individual circumstances or removed all together if they are impossible for the employee to meet.

Removing absences entirely from consideration

Alternatively, some employees may have to be absent due to a requirement placed upon them, such as Covid isolation or where the employer has sent the employee home from work. Where this is the case, it would not be appropriate to include these absences as part of the employees overall absence figures, as in reality they had no choice but to be away from work and it could be viewed as ‘punishment’ for following the rules set down by either the Government, or now that isolation is no longer legally required, the employer.

Another situation that requires absences to be excluded from absence triggers are temporary conditions, such as pregnancy, that can impact an employee’s ability to attend work consistently. Again, to these employees, absence triggers should not be applied, as it would be discriminatory to do so. It is also worth noting that an employee who has suffered a miscarriage remains protected as though still pregnant for two weeks after the event.

Finally, absences that are connected with family friendly leave, such as emergency time off for dependents, parental bereavement leave, etc, should also not be included in absence triggers. This is due to the fact these rights are a) protected in law and therefore employees should not suffer a detriment from exercising them, and b) these are not sickness absences, but connected to a situation with another.

Covid related sick pay comes to an end

In line with the Government’s strategy to “live with Covid”, in England at least, many of the Covid restrictions (and support) have come, or are coming to, an end. February saw the end of the legal requirement to self-isolate and the need for face coverings, and now March brings the end of special SSP rules.

Since 13th March 2020, employees off work due to Covid, either because they themselves had it, had symptoms, or had contact with someone who did, have been paid statutory sick pay (SSP) from day one of their absence (subject to the absence being at least 4 days in length).

The SSP rebate scheme, originally opened in March 2020, closed 30th September 2021 and reopened between 21st December 2021 and 17th March 2022, enabled employers to claim back for up to two weeks of these SSP payments per employee, relieving some of the burden of forced isolation and absence from the business.

What’s happening from 24th March 2022?

SSP Rebate Scheme

This is the last day eligible employers can make or amend claims for SSP paid for Covid-related absences between 21st December 2021 and 17th March 2022. Failure to submit a claim by the end of 24th March will mean employers will not be able to claim the rebate.

End of Covid-related SSP provisions

A number of changes were made to SSP rules in light of the pandemic. These come to an end on 24th March 2022. These include:

  • payment from the first day of the absence
  • payment for isolating due to Covid, Covid symptoms or contact with Covid, when the individual is not actually unwell.

What does this mean for employers?

This puts employers in a tricky position. In England the legal requirement to self-isolate was scrapped on 24th February 2022. As such, they will need to decide what to pay employees whilst they are off work following the guidance. As SSP rules are applied across Great Britain, it remains to be seen what will be put in place in Wales and Scotland, as self-isolation in Wales does not end until 28th March 2022, and advice in Scotland is still to isolate.

For many, they can return to home working temporarily. For those that are left too unwell to work due to the virus, they will get whatever sick pay would normally be due. The biggest problems arise for those that cannot work from home, but are well enough to work. In this case, employers may choose to extend sick pay to these people to reduce the risk of Covid transmission in the workplace.

Workers in England no longer told to work from home

Government announces workers in England no longer told to work from home

What are the current Plan B rules?

There are 3 key measures under the government’s current Plan B restrictions:

  • Compulsory face coverings in most indoor public places
  • Advice to work from home where possible
  • Mandatory Covid passes for entry into nightclubs and large events (e.g. football matches)

These restrictions were set to expire on 26 January 2022.

What has changed?

The government announced a Covid update this afternoon – these changes apply in England only.

The guidance to work from home will be removed from today, 19 January 2022.

From 27 January 2022, the legal requirement to wear a mask in public places will be removed – although they will still be recommended in some places. Boris Johnson intends to trust the British people to make the right choices.

Also from 27 January 2022, the use of Covid passes will no longer be mandatory but businesses can choose to use them if they want to.

From tomorrow, 20 January 2022, children don’t have to wear face masks in classrooms.

A long-term strategy on living with Covid will be set out in the coming weeks.

Are any Plan B measures staying?

There will still be a legal requirement to self-isolate if you test positive for Covid.

Self-isolation rules are due to expire on 24 March 2022 – the government doesn’t expect to renew these and the expiry date may be brought forward if the data supports this.

What does this mean for employers right now?

Employers should update their employees and prepare their workforce for their return.

A risk assessment should be completed to ensure all necessary Covid-secure measures are in place – e.g. one-way systems, hand sanitizers, screens/barriers, regular cleaning, social distancing, mask wearing reminders etc.

Many employers will have already gone through the process (sometimes multiple times) of sending staff home then welcoming them back to the workplace.

Where employers have already completed such processes, it may be useful to assess what worked well and what didn’t previously. Reflective exercises can ensure effective measures are put in place this time round to make the return a success.

Employers should have supportive conversations with any employees who are hesitant about returning to the office.

Reasonable adjustments (e.g. temporary hybrid arrangements to phase return to full-time office working) can go a long way in ensuring employees feel comfortable and supported.

Allowing flexibility at this stage can minimise absence levels, staff turnover and protect motivation, satisfaction and productivity rates later down the line.

Where employees unreasonably refuse to return to the workplace, employers may be able to treat this as a failure to follow reasonable management instructions and manage it as a normal conduct issue but they should first adopt a supportive tone, to see what is causing the hesitancy and if there is a way the employee and employer can work together to reach a conclusion which is beneficial for all.