Employment Law Digest October 2024 – Navigating Large-scale TUPE Transfers
This article has equal application to the termination of service provider contracts in the private sector though; the principles…
Here we break down the manifesto pledges made by the now elected Labour Government and the key changes that are incoming in relation to employment law.
On 18th July, we hosted a webinar summarising the Government’s plans for employment law. You can watch a recording of the webinar here.
Should you have any questions in the meantime, please do contact a member of the Employment team.
One of the most significant and perhaps most controversial of the Labour Government’s promises to reform employment law has been the removal of the 2 year qualifying period for bringing unfair dismissal claims. Protection from being unfairly dismissed is going to be a day one right.
Labour’s manifesto and the notes accompanying the King’s Speech made reference to this right being subject to the operation of a probationary period.
Now the Financial Times has reported that a number of Whitehall figures have told them that there will be a probationary period of six months during which employees can be dismissed more easily. Probationary periods should have “fair and transparent rules and processes”. The Government have not made an official announcement as yet nor have they provided any comment.
If what the Financial Times has reported is correct, this marks a compromise between providing businesses flexibility to terminate new hires and granting more rights and certainty for workers.
A six month probationary period aligns with what we see in most current contracts of employment. The introduction of a six month probationary period in itself is therefore not unusual. What we do not know yet is how the probationary period is going to be introduced into legislation. Will it become an additional fair reason for dismissal (in addition to conduct, capability, redundancy, contradiction of a duty or restriction or some other substantial reason)? Will it become something that an Employment Tribunal will take into account when considering the fairness of a dismissal in same way that they take into account the size and administrative resources of the employer? Will there be an ACAS Code of Practice to govern how probationary periods should be applied and managed (presumably yes to this one)? We will have to wait and see.
In early October, we are expecting to know more about this right, together with the other package of employment rights announced in the Kings Speech. We will be providing more updates as and when they happen.
The Government has confirmed that the Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force on 26 October 2024. The Act, which progressed through Parliament and received Royal Assent during the Conservative Government, will introduce a duty for employers to take positive steps to prevent sexual harassment in the workplace.
The Act will require employers to take ‘reasonable steps’ to prevent sexual harassment. Such steps could include having a clear and up-to-date policy on sexual harassment, providing mandatory training for all staff, having appropriate reporting methods in place, ensuring that that there is a thorough and independent investigation into any allegations of sexual harassment, and having workplace champions to provide support to those who experience or witness sexual harassment.
In its manifesto Labour pledged to amend the duty for employers to take ‘all reasonable steps’ to stop sexual harassment before it starts, which will be more onerous for employers. The impact of this could be that if an employee brings a claim for sexual harassment, and the employer was found to have taken reasonable steps (but not all reasonable steps) the employee’s claim could be successful. This change will not take place prior to the commencement of the Act, but may be introduced in the future as part of the Government’s plans to make a suite of changes to employment law.
Employers will need to take steps ahead of the commencement date to ensure that they do not fall foul of this duty. Our Employment team will shortly be publishing a toolkit (and hosting a webinar) to assist employers with their new duty to prevent sexual harassment, so stay tuned for further updates.
The Department for Business and Trade has confirmed that the Government will not bring into force the Workers (Predictable Terms and Conditions) Act 2023. The Bill, which received Royal Assent in September 2023, was expected to come into force this month and would have provided workers with the right to request a predictable working pattern.
Instead, a spokesperson for the Department has said: “We will introduce a new right to a contract that reflects the number of hours regularly worked as part of our significant and ambitious agenda to ensure workplace rights are fit for a modern economy, empower working people and deliver economic growth.”
It seems that on this decision is in line with Labour’s plans to end one-sided flexibility and provide workers with more accurate contracts which are reflective of their actual working pattern. Instead of having various pieces of legislation, it follows that the Government would rather the issue be dealt with in one sweep and thus it will likely form part of the upcoming Employment Rights Bill. It is expected that the forthcoming legislation will confer stronger rights than the scrapped Act will have introduced.
Labour pledge to introduce legislation within the first 100 days of entering government, which would mean by 12 October 2024.
There is the well-established policy of only implementing employment law changes in October and April rather than spread across the year and so if Labour do keep to this precedent it will likely mean we won’t see changes until next Spring. Additionally, many changes may require codes of practice or substantial secondary legislation before being enacted and this means many more months of drafting and consultation.
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