What's coming?
The Bill Gained Royal Assent on 18 September 2023 but it is yet to be enacted. It will give workers the right to request a predictable working pattern.
The Workers (Predictable Terms and Conditions) Bill is a private members’ bill that aims to provide workers on flexible or casual contracts, including those on zero hours contracts, with more predictable working patterns.
The Act will operate in a similar way to flexible working requests – a worker will be able to make two requests for predictable terms in any 12-month period and will not be able to make any other statutory applications (such as a flexible working request), while an existing application is live.
A worker’s request will need to say it’s an application for predicted working and include certain minimum information (outline what they're seeking in relation to the predictability of their working pattern and give a proposed start date). The employer will need to deal with the request within one month of the request being made. The employer will be able to reject the request on specific business grounds, such as a detrimental impact on the employer's business, planned structural changes, or insufficient work during the periods that the worker proposes to work.ACAS have produced a draft Code of Practice to help workers and businesses understand the law and how to have constructive discussions around working arrangements that suit them both. It invites comments by 17 January 2024. The draft Code is not expected to take effect until Autumn 2024.
This Act gained Royal Assent on 20 July 2023 and grants further flexibility to employees making flexible working requests.
Employees can make two flexible working requests within a 12-month period. Previously they could only make 1 request.
Mandatory consultation between the employer and the employee making the request will be required and ACAS has revised its code of practice following a recent consultation. The new code is anticipated to come into force at the same time as the changes to the law in 2024, but nothing is confirmed to date.
Employers must respond to a flexible working request within 2 months whereas previously it was 3 months.
Employees are not required to explain the impact (if any) that granting their request would have on the business.
The statutory reasons for rejecting a request will remain.
The predicted right to request flexible working from day one was not clear in the Act, but it was in the second legislation and has now been confirmed.
The act is to come into force on 6 April 2024. Employers are encouraged to be proactive and get ahead by implementing the changes before the Act comes into effect.
Received Royal Assent on 24 May 2023. The Act aims to extend the previous period of protection against redundancy for pregnant workers to six months following their return to work.
Currently pregnant employees have a wide range of additional rights, under various legislation, with varying periods of protection under each. Amongst such protection, currently, employees on maternity leave, adoption leave, or shared parental leave already have the right to be offered a suitable alternative vacancy, if available, before being made redundant. They have priority over other redundant employees in relation to such vacancies.
For employees on maternity leave, this right runs until the end of the maternity leave period, regardless of when they return.
The Act proposes to extend these existing protections to:
Six months after the end of maternity leave – giving almost two years of protection if an employee tells their employer they are pregnant as soon as they know.
Those who have recently suffered a miscarriage (prior to notifying the employer of their pregnancy).
Those who have recently returned from adoption leave or shared parental leave.
The government has indicated that further regulations will be implemented, most likely before April 2024, setting out how the entitlements will work, but there is no clear implementation date.
Gained Royal Assent on 24 May 2023
The Neonatal Care (Leave and Pay) Act 2023 creates a statutory right for parents whose child is receiving neonatal care to take paid leave of up to 12 weeks. It applies where a baby receives neonatal care for more than 7 days in a row in the first 28 days of life.
During neonatal care leave, it’s expected to be the case that eligible employee will:
Retain the benefit of their terms and conditions of employment (excluding remuneration) which would have been applied if it wasn't for the absence, and remain bound by any obligations arising from the same.
Retain the right to return to a job of a prescribed kind and enjoy the same protection as that afforded to parents exercising other family friendly entitlements (i.e. not to be subject to a detriment or discrimination arising from them taking, or seeking to take, neonatal care leave). The notice requirements are yet to be determined.
‘Neonatal Care’ is considered to mean medical or palliative care starting before the end of 28 days beginning the day after the date of the child’s birth.
Secondary legislation is needed here, and implementation is not predicted until April 2025. It’s expected that such criteria will mirror the conditions in place for other family friendly entitlements, with neonatal pay aligning with other statutory payments for employees with 26 weeks service.
Who can take Carer's Leave?
The Carer’s Leave Act will enable employees to take up to one week’s leave annually, in whole or half days, to provide or arrange care for a dependent.
The right extends to care for a spouse, partner, child or parent who lives in the same household as the carer and/or reasonably relies on them for care. The leave is a first-day employment right and is unpaid.
The new regulations are to come into force on 6 April 2024. In the meantime, there's an opportunity for employers to review their policies, consider whether they wish to offer any rights in addition to this statutory minimum and generally prepare to communicate to their employees.
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Government consultations, reviews and policy papers you need to be aware of.
In the Spring 2023 budget, the government announced its intention to improve and simplify the current Save as you Earn (SAYE ) and Share Incentive Plan (SIP) schemes. On 12 June 2023 they launched a call for evidence. The consultation closes on 25 August 2023.
On 10 May 2023, the UK government published its policy paper, Smarter Regulation to Grow the Economy. This is an ambitious and wide-ranging look at regulation across business in the post-Brexit landscape. From an employment perspective, the review will look at simplifying TUPE, limiting the scope of non-compete (restrictive covenant) clauses in employment contracts, and reforming the Working Time Regulations. Some of these have now been announced and are covered in other sections of this update).
In a market still beset by labour shortages, the government has been looking in several directions at ways to boost the number of people in work. With a budget of £22m and a network of ’50 PLUS Champions’ they have succeeded in increasing the number of people over the age of 50 in work by 210,000 in the past year.
They have also launched a review into the employment of neurodiverse people with a brief recommendation for ways in which the government can help employers to employ and retain people with autism and other neurodiverse conditions.
In contradiction to its general talk of crack downs on immigration, earlier this year, the government added critical trade jobs in the construction industry to its Shortage Occupation list (SOL).
This is a list of occupations which eases the passage of people coming to the UK to fill them and to the employers who offer them. On the list are civil engineers, graphic designers, and vets, as well as care workers.
On 3 October 2023, the MAC (Migration Advisory Committee) published a detailed report on the UK SOL. The report was commissioned in August 2023 and made specific recommendations in relation to the Going Rate Discount and new occupations to be added to the SOL. It recommended that care workers, (previously added to the list on a temporary basis), should remain on the list. It also made more radical recommendations that the SOL should be abolished altogether, or have its name changed to ‘Immigration Salary Discount List’ (ISDL) on the basis that this is a more accurate reflection of its purpose.
On 4 December 2023, the Home Secretary announced the government’s five-point plan to reduce immigration and “crack down on cut-priced labour from overseas”. These are:
Ending the 20% going rate salary discount for shortage occupations.
Replace the shortage occupations list with a new immigration salary list.
Increase the earning threshold for overseas workers to apply for a skilled worker visa, from its current level of £26,200 to £38,700 – nearly a 50% rise. (Health and care workers, and professions like teachers with national pay scales, will be exempt and will still qualify for the visa with a lower salary.)
Increase the minimum salary threshold for a family visa from £18,600 to £38,700.
Health and care visas - care workers will not be able to bring any family members with them on dependant visas. Care firms that want to sponsor visas will also need to be regulated by the Care Quality Commission.
The Migration Advisory Committee will now review the new list to reduce the number of occupations on it.
The Bill aims to protect workers against exploitation by employers using zero-hour contracts and false ‘self-employment’.
The Workers (Rights and Definition) Bill is a private members’ bill introduced by Chris Stephens of the SNP.
The aim of the bill is to relieve the current difference between ‘workers’ and ‘employees’ and introduce a single status for the purpose of employment rights and employer responsibilities. This is intended to protect workers from the vagaries of the ‘gig economy’ by regulating false ‘self-employment’ and casual employment in a simpler way. The bill is in its second reading in the Commons.
Gained Royal Assent on 20 July 2023
This act passed swiftly through parliament, being introduced in January 2023, and receiving Royal Assent on 20 July 2023.
Despite opposition from unions and numerous suggested amendments from the House of Lords, the bill was passed with few amendments.
The Act amends the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) and will restrict the protection provided to trade unions and employees in respect of strikes if minimum service levels apply.
Previously, only police, armed forces and some prison workers were prohibited from striking and some statutory provisions were in place to prevent industrial action where life is endangered.
Restrictions on striking will now apply to transport and other public sector bodies, including fire & rescue and education.
What we know so far:
Following notification from a union of a strike, employers will be required to give work notices seven days before the strike, stating which employees will be required and what work will need to be carried out during the strike - the union will be required to take “reasonable steps” to comply.
Consultation has taken place regarding what minimum service levels should be. However, an update is awaited and secondary legislation is required.
It's also worth noting that the opposition pledges to repeal the bill, if it becomes law, and they win the next election. Further challenges from the Trade Union Congress is also anticipated.
Following on from high profile cases such as P&O Ferries and British Airways, the UK Government underwent a 'fire and rehire' consultation.
It was launched on 24 January 2023 and closed on 18 April 2023 resulting in the Draft Code of Dismissal and Re-engagement.
The aim of the code was:
To prevent or curtail the practice of ‘fire and rehire’ where employees who do not accept new terms and conditions, are dismissed, and then offered their job back on the new terms.
To crack down on unscrupulous employers, in particular making it clear that threats of dismissal should not be used.
To ensure that an employer takes all reasonable steps to consider alternatives to dismissal and carries out consultation in good faith with employees/representatives.
To give courts the power to apply a 25% uplift to employee compensation, in the same way as the ACAS Code of Practice is enforced.
However, the draft code is not legally binding. The TUC have labelled it “totally inadequate” and said that it requires, “significant improvement,”. They have also said that the protection provided should extend to those who have “insecure” employment, such as those on zero-hour contracts, and that the 25% uplift should be extended to collective redundancy consultation. A formal version of the code is expected in spring 2024, but there are no further updates.
Introduced by Liberal Democrat MP Wera Hobhouse as a Private Members' Bill in June 2022.
The purpose of the Bill is to protect employees from third party sexual harassment in the workplace by imposing new duties on employees. The initial requirement for employers to take “all reasonable steps” was diluted to “reasonable steps” with amendments anticipated, but these did not come into fruition.
The Bill received Royal Assent on 26 October 2023, without amendment, and is expected to be effective from November 2024.
It's therefore a good time for employers to consider preventative action for the future. Although claims for third party harassment were not specifically added, as initially predicted, liability is still a risk. Employers need to take complaints seriously, and have clear, widely operated polices and sufficient training on those policies, to show that they have taken the “reasonable steps” required.
Consultation opened on 20 July 20323 and closed on 12 October 2023.
The government has introduced ‘proposals to reduce ill health-related job loss’. The consultation builds a case for employers to do more to support employees with health conditions. In return the government is committed to providing more help for employers.
The plan includes:
Changing the legal framework so that employees would be able to request workplace modifications for health reasons without being disabled within the definition of the Equality Act 2010 (employers would be able to refuse such requests for business reasons).
Extending SSP to those below the Lower Earnings Limit by paying it as a proportion of employees’ wages, paying a proportion of SSP during a phased return to work, and increasing fines for non-payment of SSP.
Increasing market capacity for, and improving the quality and value of, occupational health provision.
Employees will be encouraged to raise issues, and employers should accommodate these where possible. This will enable businesses to retain talent and build workplaces that support an employee’s physical and mental health needs.
Gained royal assent on 29 June 2023.
On 22 September 2022, the government introduced the Retained EU Law (Revocation and Reform) Bill to Parliament. The legislation was intended to ‘put the UK statute book on a more sustainable footing’ post-Brexit, by ending the special status of retained EU law under UK law by the end of 2023.
The Bill contained a complex mix of provisions and powers to revoke, amend, replace, restate, or ‘assimilate’ retained EU law.
In May 2023, the government dropped its highly controversial ‘sunset clause’, which aimed to ensure the process was completed by the end of 2023.
Instead of automatically deleting EU-based laws, the new Act keeps everything for the time being unless listed for deletion. A schedule of
around 600 pieces of secondary legislation are set out in a revocation schedule, but only a few obscure employment laws are included.
Any laws not listed in the revocation schedule will be retained automatically.
Considerable power regarding EU derived legislation now lies in the hands of Ministers.
Legal interpretation will rest with UK Courts.
This will take time to develop in, and beyond, 2024. The current administration intends to prioritise reforms which have the greatest potential to drive growth. Of course, all of what has been discussed is subject to a General Election, expected in 2024.