Employment Law

The Government is introducing a new positive duty on employers to take reasonable steps to prevent workplace sexual harassment. The new duty is contained in the Worker Protection (Amendment of Equality Act 2010) Act 2023 which has now received Royal Assent and comes into force on 26 October 2024. The duty will be enforceable by the Equality and Human Rights Commission, under its existing powers, and will be backed up with a statutory code of practice detailing the steps employers should take. Employers who fail to take reasonable steps to prevent sexual harassment could also face an uplift in compensation if an employee brings a successful claim. Employers should review their anti-harassment policies and procedures ahead of the duty coming into force – our briefing contains more detail on the change and what employers can be doing to prepare.

A separate proposal to introduce a duty to prevent any form of harassment of staff by third parties (e.g., customers, clients, suppliers or contractors) has now been dropped. However, employers can, in some circumstances, be liable under existing laws when staff are harassed by third parties and employers should continue to take steps to prevent this.

The Government is planning to make the right to request flexible working a 'day one' right – currently employees need at least 26 weeks' service to make a request under the statutory regime. Also, there will be changes to the flexible working request procedure, including a new duty on the employer to consult with the employee before rejecting their flexible working request, and reducing the time for completion of the process from 3 months to 2 months. The Government has indicated these changes are likely to come into force in around July 2024, in order to give employers time to prepare. Employers should update their flexible working policies to reflect these changes.

The Government is introducing new rights, as follows:

• Carers' leave: employees will be able to take up to one week of unpaid leave per year to care for an adult dependent (such as an elderly relative)
  
  
• Neonatal leave: parents of premature babies will have a right to up to 12 weeks' neonatal leave (in addition to maternity/paternity leave)

There is no confirmed date for when these changes will come into effect, likely to be 2024 at the earliest.

The Government has passed legislation that will introduce a new right for certain workers to request a more predictable working pattern. Workers with at least 26 weeks' service will be able to make a request to their employer to vary their contract where their current arrangements lack certainty in terms of hours, days or times of work, or if they are on a fixed contract of 12 months or less. Employers will have to consider such requests but will be able to reject them on specified business grounds. The right, which will capture many zero hours, casuals and fixed-term workers, is likely to come into force in autumn 2024.

Following a consultation earlier this year, the Government has published draft legislation to make changes in relation to statutory holiday and the rules on employee information and consultation on a business transfer. In summary, the changes are:

• Holiday: for holiday years starting on or after 1 April 2014, part-year and irregular hours workers (such as casuals and zero hours workers) will accrue holiday at the rate of 12.07% of time worked and employers will be permitted to pay rolled-up holiday pay for such workers by including an element for holiday pay in the hourly rate (this was previously unlawful under EU law);
  
  
• Business transfers: from 1 July 2024, employers will be able to inform and consult employees directly on a transfer of a business or service provision change where either the employer has fewer than 50 employees or fewer than ten employees are affected by the transfer (currently employers who do not recognise a trade union must arrange for employee representatives to be elected regardless of how many employees are affected).

The Government has recently announced that fines will triple for employers who are found to employ illegal workers, a move that forms part of its wider initiative to deter illegal migration. From the beginning of 2024, the maximum civil penalty for a first-time offence will triple from £15,000 to £45,000 and the fine for a second breach will increase from £20,000 to £60,000. An employer's defence to such fines is to show it has carried out prescribed right to work checks on all employees before they start work. Employers should therefore ensure they have robust systems for ensuring compliance with the right to work checking requirements.