While employers and HR professionals are absorbing the extent of the new Government’s plans for Employment and Health & Safety laws, we would do well to remember the old Government also passed significant legislation. And one of these is shortly due to become law.

Background

The Worker Protection (Amendment of Equality Act 2010) Act 2023 introduces a new preventative duty for employers to prevent both sexual harassment and harassment at work, effective from 26^th October 2024. Taking a preventative stance is an anticipatory duty meaning that employers should not wait until an incident of sexual harassment has taken place before they take any action. The duty requires that employers should anticipate scenarios when its workers may be subject to sexual harassment in the course of employment, and act to prevent such harassment happening. If sexual harassment has taken place, or the organisation has a known history of such incidents happening, then the preventative duty means an employer should act to stop sexual harassment from happening again. However, if an employer fails to take reasonable steps to comply with the preventative duty, there are consequences.

The EHRC has released draft technical guidance for consultation, which runs until 6^th August 2024, with the final guidance expected in September 2024.

You still have time to take part if you feel strongly about it – Consultation page – EHCR

Definition of Sexual Harassment

Sexual harassment involves unwanted conduct of a sexual nature that violates dignity or creates a hostile environment. Being treated less favourably for submitting to or rejecting to such conduct is also harassment.

Current Employer Obligations

Employers are vicariously liable for harassment by their workers during employment, regardless of their knowledge or approval. They can defend claims by proving they took “reasonable steps” to prevent harassment. Individuals can also be personally liable.

Scope of Duty

The duty applies to preventing sexual harassment by both employees and third parties, such as contractors and clients. Failure to take reasonable steps to prevent harassment breaches this duty.

Reasonable Steps

Reasonableness varies by employer size, sector, working environment, resources, risks, third-party interaction, and likelihood of contact. No specific criteria or minimum standards exist, but examples of reasonable steps include:

• Policy: Define harassment and sexual harassment, outline disciplinary actions, and provide reporting procedures. Regularly update and remind staff.
• Training: Training is essential not just on harassment but bullying as well thereby ensuring Managers act and properly handle complaints. Regularly review and refresh training.
• Risk Assessment: Evaluate anticipatory harassment risks that may occur between employees and third parties. Implement control measures.
• Transparency Culture: Encourage workers to report concerns without fear of not being taken seriously.
• Clear Procedure: Establish a clear reporting and response procedure for harassment concerns.
• Zero-Tolerance Communication: Communicate a zero-tolerance stance on sexual harassment to third parties.
• Support: Direct workers to support organisations and Employee Assistance Programmes.
• Timetable: Create a timetable for regularly monitoring and reviewing training and policy updates.

Breach Consequences

Workers cannot bring claims for breaches, but can complain to the EHRC, which can investigate and take enforcement actions.

Employment Tribunals must consider compliance with the preventative duty when awarding compensation for harassment, potentially adding up to 25% to the compensation if the duty was breached.

Action Points for Employers

• Develop and update harassment and sexual harassment policies.
• Implement comprehensive training (and refresher) programmes on your equality and dignity at work policies, for both Managers and for employees.
• Undertake and document a sexual harassment risk assessment.
• Foster a reporting culture for unacceptable conduct of all types.
• Establish clear procedures for handling harassment incidents.
• Communicate zero-tolerance policies to third parties.

Finally, we are noticing an increase in employers receiving either informal or formal complaints about inappropriate conduct, not just in the workplace but in extensions of the workplace, such as at socials organised either formally by the employer, or informally by groups of employees.  When alcohol is a feature in social settings there is a greater risk of incidents happening, so remember the workplace extends to these types of events as well.

BackupHR can provide a range of appropriate in person training for Managers and employees, which will demonstrate that the employer has taken a key reasonable step regarding the new preventative duty.  While e-learning training modules are a quicker and cheaper option, but live interactivity with a trainer really helps to effectively improve learning especially when the training needs to teach people to understand and, if necessary, change their conduct. Being able to directly ask questions, participate in group activities and listen to their peers as part of the training process will make a real difference in reducing the risk of harassment and bullying incidents.

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

The Labour Party’s landslide victory in the recent UK General Election has ushered in a wave of employment law reforms that promise significant implications for Occupational Safety and Health (OSH) as well.

No specific announcement was mentioned in the King’s Speech so we will need to further wait for them to outline their programme in more detail.  What we do know is that the Labour government plans to establish a single enforcement body to enforce workers’ rights going forward.

The focus of this new body is to include equality and human rights alongside other aspects of employment law such as health and safety, minimum wage, and worker exploitation. Its purpose is to have strong powers to undertake targeted and proactive enforcement work, such as carrying out unannounced inspections, following up on anonymous tip-offs, and bringing civil proceedings to uphold employment rights.

So Labour wishes to end exploitative employment arrangements – zero-hour contracts, provide greater job security, and rebalance the employer-worker relationship.  Such contracts make workers increasingly vulnerable in terms of their physical and mental health.

But they have also promised to overhaul the rules around Health and Safety at work, and use this single enforcement body to monitor this, low and equal pay, illegal workers and other worker rights.

These measures have had the support of the Health and Safety community, and as Ruth Wilkinson, IOSH Head of Policy and Public Affairs, said “Improvements to statutory sick pay will go a long way to preventing people from returning to work too soon, which can also contribute to long-term impacts on their health.”

Key OSH Areas to Watch

1. Building Safety: Labour promises decisive action on building safety, including regulatory reforms to prevent tragedies like the Grenfell fire and to improve the safety and security of public venues. The Health and Safety Executive (HSE) will initially play a crucial role as the building safety regulator. The outcomes of the ongoing Grenfell Inquiry will shape future enforcement actions.

2. Patient Safety: The new Government’s health reforms include commitments to improve maternity care and regulate NHS Managers, aiming to enhance patient safety across the healthcare sector.

3. Mental Health: Labour acknowledges the mental health crisis in the UK, and plans to integrate measures to support employee wellbeing within health and safety frameworks. This includes engaging with stakeholders to ensure comprehensive mental health support and to modernise the Mental Health Act.

4. Modernisation of Key Regulations: They intend to review and modernise health and safety guidance and regulations to reflect contemporary workplace conditions, including new guidance on managing extreme temperatures.

5. COVID-19 and Long Covid: The Government has committed to reviewing existing regulations and guidance to adequately support and protect workers experiencing long Covid symptoms, ensuring comprehensive workplace safety.

6. Workplace Harassment: Labour will require employers to establish and maintain environments free from harassment, including sexual harassment, through stringent policies and practices. Expect possible future enhancements to the last Government’s new Worker Protection (Amendment of Equality Act 2010) Act 2023, which is due to come into force on 26^th October 2024 that could strengthen protections beyond the new Preventative Duty that employers must demonstrate. They have also made a promise to announce changes to the law to make assaulting retail workers a crime.

7. Self-Employed Workers: Clarifications will be made regarding the status of self-employed workers, and the application of health and safety laws to this group, aiming to ensure their rights and protections are clearly defined.

Action Items for Organisations

To align with the incoming changes, organisations should:

• Enhance Safety Practices: Prepare for new building safety regulations and potential enforcement actions following the Grenfell Inquiry.
• Review your Risk Assessments: You should do this on a regular basis anyway, but it is especially important when the law is changing.
• Support Mental Health: Develop comprehensive mental health support programs to align with the new Government’s wellbeing initiatives.
• Modernise Safety Protocols: Stay informed about updates to health and safety regulations, and ensure compliance with new guidelines on workplace conditions.
• Combat Harassment: Implement robust policies to prevent and address all forms of workplace harassment effectively.

These reforms signal a significant shift in the UK’s employment landscape, prioritising worker protections and modernising OSH standards. Organisations must proactively adapt to these changes to ensure compliance and promote a safer, more equitable workplace.

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

Organisations frequently prioritise the behaviour of their employees when assessing factors, such as engagement, productivity, and attendance.

However, the conduct of Directors and Senior Leaders is equally, if not more, critical to the overall health and reputation of an organisation. Recent events underline this point dramatically.

Just reading through the press, a typical and topical example is the recent suspension of shares in Chill Brands, a relatively small company listed on the New York Stock Exchange. This suspension followed allegations that two Directors acted against the organisation’s interests.

The accusations include attempts to personally acquire the organisation’s domain name, chill.com and the unauthorised disbursement of $400,000 to themselves. By any stretch of the imagination, accusations of inappropriate behaviour!

The New Code of Conduct from the IOD

The Institute of Directors (IOD) has issued a new draft Code of Conduct for Directors for final consultation. Many might argue that this guidance is long overdue.

Nonetheless, its publication is a positive step towards promoting ethical behaviour and accountability among those at the helm of organisations.  The code makes it clear that this is on top of the already existing statutory and regulatory burden placed on all Directors.

Key Principles of the IOD Code of Conduct

The newly issued Code of Conduct aims to set clear expectations for Directors, outlining the standards of behaviour necessary to foster trust and integrity within organisations of all types and sizes, whether the Directors work in the private, public or not-for-profit sectors. While the specific details of the Code are comprehensive, the following principles are among the most crucial:

1. Leading by Example – demonstrating exemplary standards of behaviour in personal conduct and decision-making.
2. Integrity – acting with honesty, adhering to strong ethical values, and doing the right thing.
3. Transparency – communicating, acting and making decisions openly, honestly and clearly.
4. Accountability – taking personal responsibility for actions and their consequences.
5. Fairness – treating people equitably, without discrimination or bias.
6. Responsible Business – integrating ethical and sustainable practices into business decisions, considering societal and environmental impacts.

Action Points for Organisations

To ensure that Directors uphold these standards, and to mitigate the risk of misconduct, organisations can take several practical steps:

• Implement and communicate the Code of Conduct
• Foster an inclusive culture where leaders take personal responsibility, act honestly and reasonably
• Encourage whistleblowing
• Undertake regular ethical audits

Conclusion

While organisations often focus on the conduct of their employees, it is essential to recognise that the behaviour of Directors plays a crucial role in maintaining corporate integrity and trust.

The introduction of the IOD’s Code of Conduct is a useful reminder to Directors that employees are sometimes not the problem.

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

The Government has surprised us on a couple of occasions since taking power. And one of the areas is the National Minimum Wage, and how it will be implemented. Many commentators thought they could and would bring in sweeping changes by 2025.

But, while its stated aim is focused on enhancing the NMW (and the National Living Wage – NLW) to support the lowest earners, it appears to be taking a considered approach. They have published their guidance to the Low Pay Commission, and it can be found on the GOV.UK website.

Key directions to the LPC include:

1. Establishing a Genuine Living Wage:

The Government aims to set an NLW rate from April 2025 that ensures no worker earns below two-thirds of the UK median earnings, with adjustments based on inflation and economic trends. If the economic outlook is bleak, this will affect recommendations.

2. Removing Discriminatory Age Bands:

From April 2025, the government wants to start eliminating age bands for adults, progressively narrowing the wage gap between younger and older workers, and ultimately achieving a single adult rate. (We thought they would do this straight away, but that does not now appear to be the case).

3. Evaluating Youth and Apprentice Rates:

The Low Pay Commission (LPC) will recommend appropriate NMW rates for younger workers (18-20 years) and apprentices to balance wage increases with employment opportunities and education incentives.

4. Monitoring and Research:

The LPC will expand its research on the impact of wage rates, focusing on low-paid workers with protected characteristics and regional variations across the UK.

 5. Final Report and Recommendations:

The LPC is tasked with submitting a comprehensive report by October 2024, outlining recommended wage adjustments and their projected impacts.

Short and Long-term Impact on Employers

Short-term Implications:

• Employers need to prepare for higher increases in wage costs from April 2025.
• Lower inflation may moderate the increases recommended by the LPC, but there will be increasing costs for employers.
• Budget adjustments will be necessary to accommodate higher wages, especially for entry-level and younger workers.
• Businesses may need to evaluate their pricing strategies to maintain profitability amidst increased labour costs.

Long-term Implications:

• Employers are likely to experience higher operational costs due to sustained wage increases.
• Improved employee morale and reduced turnover could result from fairer wages, potentially boosting productivity.
• Employers might need to consider investing in automation and efficiency improvements to offset rising labour costs, although recent research shows that SMEs seem reluctant to fully use AI tools.

Action Points for Employers

1. Budget Planning:

Review and adjust budgets to account for expected wage increases from April 2025.

2. Wage Structure Review:

Evaluate current wage structures and prepare for the elimination of age-based wage differences.

 3. Productivity and Efficiency:

Consider investing in productivity-enhancing technologies and training to balance higher wage costs.

4. Financial Forecasting:

Conduct financial forecasting to understand the long-term impact of wage increases on profitability.

 5. Employee Communication:

Keep employees informed about upcoming changes and how it will benefit their earnings.

 

Wages have been rising steadily and talent is short in some industries, adding further pressure.

Planning these actions now will mean that employers can better navigate the upcoming wage changes and maintain both compliance and competitiveness in the evolving economic landscape.

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

One of the issues when an election is called is that Parliament has a limited time to mop up pending legislation, and get it passed through both Houses of Parliament.

One that has been successfully adopted was a Private Members’ Bill introduced by Labour MP Chris Elmore. One of his constituents had found himself ineligible for shared parental leave after his wife died during childbirth. He had recently started a new job and did not have sufficient service to qualify.

So, we now have the Paternity Leave (Bereavement) Act 2024, which has been published and extends to England, Wales, and Scotland. This Act will come into force upon the introduction of necessary regulations by the relevant Secretary of State.

Background

Previously, under the Employment Rights Act 1996, paternity leave lasted a maximum of two weeks, and bereaved partners were only eligible for statutory paternity leave if they met minimum service requirements of 26 weeks continuous service.

This framework left some bereaved partners, particularly those in new jobs or with insufficient length of service, without the crucial support they needed during such challenging times. Especially if their employers were not understanding enough.

Key Provisions

• Automatic Day-One Paternity Leave: Bereaved fathers or non-birthing partners will now have the right to Day One paternity leave if the mother, or the person with whom a child is placed or expected to be placed for adoption, dies. This provision eliminates the previous requirement for a minimum service period.
• Removal of Shared Parental Leave Restrictions: The Act removes the condition that prevented bereaved partners who had already taken shared parental leave from taking paternity leave. This change ensures that partners are not penalised for having utilised their shared parental leave entitlement.
• Rights in Case of Dual Bereavement: In the tragic circumstance where both the mother and child die, bereaved partners will still be entitled to take paternity leave. This provision ensures that bereaved partners have the necessary time to grieve and manage their affairs.

Implications for Employers and Employees

Hopefully these are provisions that will be rarely used, and the Act will only come into force once a new Government has time to implement it, especially as this received full cross-party support.

But where it is needed, the Paternity Leave (Bereavement) Act 2024 represents a significant step forward in providing support to bereaved partners, ensuring that they are granted the necessary time to cope with their loss without the added stress of meeting employment requirements.

We would hope that most employers would be supportive to any parent or partner who finds themselves in this situation. But when this becomes law, organisations should act promptly to implement these changes and support their employees during such difficult times.

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

Labour has many ambitious aims, and one of them is to make some of the most far reaching changes to the relationship between employers and their employees for generations.

This article aims to highlight the Labour Government’s potential quick wins, medium-term initiatives, and long-term aspirations in employment and HR policies. These changes, if implemented, will have significant implications for employers across various sectors.

But even so, the message to most employers is not to panic. A few may happen quickly, others will require legislation and the scrutiny of Parliament. Except where legislation has to be rushed through, most will take 18 months to get onto the statute books and become law.

Labour’s Plan to Make Work Pay

Labour’s detailed plan, which was part of their manifesto, includes over 60 pledges focused on enhancing employee rights and improving working conditions. Key proposals include:

• Single Worker Status: Unifying the rights of employees and workers, granting crucial rights like unfair dismissal from day one.
• Zero Hours Contracts: Addressing exploitative practices.
• Flexible Working: Will become the default, except where the employer can prove it is not reasonably feasible.
• Family-Friendly Rights: Expanding protections and benefits for working families.
• Repeal of Trade Union Act 2016: Reversing restrictions on union activities and membership.

A copy of the document can be found here: Make Work Pay

They further fleshed this out in the King’s Speech, with this accompanying document to explain their proposals: Briefing Notes

Quick Wins

There are some potential quick wins that don’t require extensive legislation. They include:

• National Minimum Wage: Removing the lower rate for 18 to 21-year-olds, and probably increasing overall wage rates.
• Employment Tribunal Claims: Extending the claim submission period from three to six months, and possibly extending early conciliation periods.
• Right to Disconnect: Introducing policies to support work-life balance, possibly starting with a voluntary code.
• Collective Grievances: Simplifying processes for grievances involving multiple employees.

Labour’s First 100 Days

Labour has committed to significant employment rights legislation within the first 100 days of office, which would mean, perhaps ambitiously, by 25th October.

• Equality Act Amendments: Enhancing protections against workplace harassment, including third-party harassment.
• Unfair Dismissal Rights: Making such dismissals unfair from day one of employment, with clearly defined probation periods for assessing employees.
• Zero Hours Contracts: Strengthening protections against exploitative contracts.
• Repealing 2016 Trade Union Bill: Reversing changes that impacted strike actions, union representation and activities.
• Flexible Working: Making flexible working the default unless impractical for the employer.
• Sick Pay: Removing the lower earnings limit and unpaid waiting days for Statutory Sick Pay (SSP).
• Further Equality Act Amendments and Equal Pay: Introducing new definitions and reporting requirements.
• Fire and Rehire: Implementing stronger provisions against this practice.
• Whistle-blower Protection: Enhancing protections, particularly for those reporting sexual harassment.

Labour’s Long-term Aspirations

Several complex issues may require extensive consultations and longer implementation periods:

• Single Worker Status: Harmonising employment rights across various worker categories.
• Family-Friendly Leave: Creating paid carers leave, and broadening eligibility for other types of leave.
• AI and Workplace Monitoring: Addressing the impacts of AI on employment practices.
• Large Organisations: Introducing new reporting requirements and action plans for gender, disability, and ethnicity pay gaps.
• Strengthening Redundancy Rights: Preventing practices that avoid collective redundancy consultations.
• Voice at Work: Enhancing union representation and worker rights.
• New Enforcement Body for Worker Rights: Creating a single body to proactively enforce worker rights.
• Safer Workplaces: Reviewing health and safety regulations.

Action Plans for Employers

To prepare for these changes, small to medium-sized employers should:

• Keep up to date with the changes: Our clients are properly briefed on each new law and regulation.
• Train Managers: Ensure understanding of new legislation, including holiday pay rules, carers leave, and paternity rights.
• Employee Training: Educate staff on harassment, bullying, and dignity at work to meet new preventative measures.
• Budget for Wage Increases: Prepare for potential increases in the National Minimum Wage, particularly for younger employees.
• Update Handbooks and Policies: Revise policies on sickness, redundancy, pay, and family-friendly rights. Ensure contracts are up-to-date with new requirements.
• Risk Assessments: Include considerations for preventing sexual harassment and other workplace risks.
• Improve Recruitment and Induction: Enhance processes to reduce the likelihood of short-service dismissals and ensure effective onboarding.

Conclusion

As the Labour Government’s plans unfold, staying informed and proactive is crucial. Employers must be prepared to adapt to new regulations, and support their workforce through these transitions.

We hold regular webinars which address changes to the law as they unfold, whether through legislation or through the Courts. See our latest webinar on this very subject.

We run both public and in-house training on people management skills on a raft of issues from delivering bad news or having difficult conversations through to performance management, investigation skills or dignity at work training for both Managers and employees.

BackupHR is here to assist with the necessary changes, providing guidance, training, contractual documentation and support to navigate the evolving HR landscape.

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

We cannot blame employers for feeling bewildered from time to time, especially in the charity sector, when trying to decide the employment status of those who work for them. Especially if they are a mix of volunteer and worker.

And, if ever a case demonstrated the need to take professional advice, then Groom v Maritime and Coastguard Agency was one.

The Employment Appeal Tribunal (EAT) examined whether a volunteer within the Coastal Rescue Service could be classified as a “worker” for the purposes of employment rights.

Background

The dispute centred on a seemingly simple question – did Mr Groom, a Coastal Rescue Officer (CRO), have the right to be accompanied at a disciplinary hearing? This is a right typically reserved for “workers” – it was crucial as he had been denied the right, and was thus claiming unfair dismissal, which he could not generally do as a volunteer.

To establish his status as a worker, Mr Groom needed to show he was engaged under either a contract of employment or an agreement where he personally performed work or services for another party for which he was getting paid.

Mr Groom was described as a volunteer, and was asked to operate under a Volunteer Handbook. Despite the absence of a written contract of employment, he received remuneration for certain activities, with these earnings documented via payslips and a P60 form.

EAT’s Findings

The EAT’s decision emphasised several key points:

• The EAT clarified that being a volunteer does not automatically mean that in certain circumstances they cannot be a worker as well. The relationships can overlap depending on the specifics of the engagement.
• The fact that he had to claim his remuneration, as opposed to receiving it automatically, and that some CROs did not claim remuneration, was deemed irrelevant. The right to claim remuneration was the critical factor.
• When Mr Groom performed activities for which he was paid, his work was controlled by the organisation, indicating an implied contract. Therefore, during these activities, Mr Groom was considered a “worker.” Therefore, the Respondent (the employer) was found to have breached his statutory right to be accompanied at a disciplinary meeting.

Limitations of the Decision

While a decision at appeal carries great weight in the law, this was a very limited decision. The EAT did not address several important questions:

• Was he a worker during activities that did not attract remuneration?
• Was there an over-arching worker contract that governed his engagement?
• It did not establish that volunteers are always workers.

Implications and Action Points

This case underlines the complexities involved in determining employment status, and the necessity for careful consideration of each case’s specifics. Here are some practical steps for organisations to consider:

• Review Volunteer Agreements: Ensure that all volunteer agreements clearly outline the nature of the relationship, and any conditions related to remuneration or expenses.
• Document Remuneration Practices: Maintain clear records of any payments or remuneration provided to volunteers to avoid ambiguity about their status.
• Training for HR and Managers: Equip HR professionals and Managers with the knowledge to distinguish between volunteers, workers and employees, particularly regarding rights and obligations.
• Seek Professional Advice: When in doubt, seek proper expert advice to navigate the complexities of employment status, especially for roles that blur the lines between volunteer and worker.

Understanding the distinctions between various forms of engagement is crucial for maintaining compliance, and ensuring fair treatment within organisations. This case serves as a reminder of the importance of clarity and thoroughness in defining the different types of employment relationships that can happen and at times overlap.

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

Holiday pay and entitlement is one of the most common topics we are asked to provide assistance with by our clients.  As many of you will already know, the Government introduced new guidance from 1st January 2024 on how to calculate holiday entitlement and holiday pay, which was supposed to provide clarity.

On reviewing this guidance, we actually found them to be rather confusing and “mudded” the waters in respect to what constitutes “normal” pay.  As such, we have decided to use terms such as “basic” pay (being the minimum flat rate that an employee is guaranteed to receive) and “normal” pay (being what we previously referred to as average pay) to show a clear distinction.  So, to help our clients, we have put together our own Employment Law Guide on Holiday Pay and Entitlement for Employers and attach a copy for your reference, which we hope you will find useful.

Employment Law Guide

Due to the complexity of this guidance, we also dedicated our last bi-monthly webinar to this particular subject only – something we do not normally do.   Below is a link to the recording, that includes copies of the slides, which we hope you will also find of interest.

Bi-Monthly Webinar Recording

We hope that the attached will assist you when it comes to calculating both holiday entitlement and pay.  However, if you have any queries or questions relating to this subject, please do not hesitate to drop us an email or give us a call as we would be pleased to help.

 
Clients are welcome to raise any concerns with our Consultant team, who would be pleased to advise you on any element of the issues arising from this update.