• November Update  

    Sunset on Employment Rights?

    The Government’s forthcoming “Retained EU Law Bill” has the potential to seriously alter the course of UK employment law, directly affecting 313 laws derived from the EU.  If any of this legislation is not  “restated, replaced or revoked” by the end of 2023 – the so-called “sunset clause” –  it will cease to exist.  (However, any employment laws contained within Parliamentary Acts are “safe” as they have already passed into UK legislation). As yet, the Government has given no indication to the likely changes, but the employment laws that are at risk include TUPE, the Working Time Regulations, the Part time Worker Regulations, Fixed Term and Agency Workers Regulations and GDPR. 

    a) TUPE 

    Given that TUPE has been followed for over 40 years (and been developed beyond the requirements of the EU) it seems probable that it will not fall by the wayside completely. However, some aspects may be simplified, for example only requiring larger organisations to inform and consult.

    b) Working Time Regulations 

    The Working Time Regulations may not be so fortunate. The decision in Tyco (i.e. that peripatetic workers can include on call and travelling time as working time) will almost certainly be abandoned,  though the 48 hour working week limit may be retained given that it not enforced in the UK and many employers already opt out.  

    c) Holiday pay 

    We are likely to revert back to the original UK position that employees do not have a legal right to carry over holiday entitlement into the next holiday year if they have not used the entitlement due to sickness absence and that holiday pay is simply a basic pay rate without commission, overtime etc. 

    d) Agency Worker directives

    The current rule that provides agency workers who have worked for 12 weeks with the same benefits as employees, is massively unpopular and likely to be repealed.

    e) GDPR and Data protection

    This will not be automatically repealed at end of 2023. However the current Digital and Culture Secretary told the Conservative Party Conference that the UK would abolish the Data Protection Act and replace it with an alternative system – a horrifying prospect for many UK companies given that they will still have to comply with GDPR in order to do business with anyone in the EU. Costs to business will be massively increased if there are two separate regimes, so let’s hope wisdom will prevail. 

    f) Discrimination laws 

    As anti-discrimination legislation is contained within an Act of Parliament, protected characteristics won’t be scrapped. However, Tribunal compensation may be capped in the same way as unfair dismissal (an attempt was previously made to do this but it was prevented by EU law). As this would require primary legislation it may take time to arrive on the statute books. 

    g) Family friendly rights

    Changes may be made to part of the Maternity & Parental Leave Regulations – probably not maternity leave itself, but parental leave could be affected.  

    Other Issues

    Of particular concern in the Bill is clause 4.1 which states that EU law no longer has supremacy over UK law. This means that any UK case law previously overturned by EU laws – for instance with regard to holiday pay claims – will now take precedence.  Although judges do have discretion in the matter, we may see an increase in legal challenges which will put pressure on already overburdened courts. We are some way off from knowing just how the present Government will deal with the existing regulations, and their decisions may be further influenced by the fact that, under the UK-EU trade deal, tariffs can be imposed if employment rights are reduced so as to confer a competitive advantage. Finally, it’s important to note that  Government Ministers do have the power, in particular cases, to extend the December 2023 date until June 2026 – the tenth anniversary of the Brexit referendum.The Government is calling for evidence to be submitted on the Bill and there is more information at the following link https://www.parliament.uk/business/news/2022/october-2022/call-for-written-evidence-retained-eu-law-revocation-and-reform-bill/ 

    New ACAS advice on employee suspensions

    Suspending an employee – in effect, excluding them from the workplace – is a tough decision to make. It can heighten emotions both for the affected employee and for their colleagues too. Worst of all, an unnecessary or unduly lengthy suspension could eventually form part of a Tribunal claim. 

    ACAS has now published updated guidance on suspensions which should help employers decide when and how they should take such action, but if you are still unsure, our solicitors at Mulberry’s can give you advice tailored to your specific situation. 

    In general you should ensure, first of all, that suspension is an appropriate response. If an employee is being investigated for a serious breach of conduct, or there are risks to health and safety, it may indeed be the best solution. However, always consider alternatives, such as changing staff shifts, moving an employee to a different part of the organisation or another site, or allowing them to work from home. If the issue relates to only one part of their work, remove them from that particular task but allow them to continue with other duties. 

    Suspension almost always impacts employee’s mental health. Be mindful that even if your employee is not in the workplace you still have a “duty of care” to support them and ensure their wellbeing has not significantly deteriorated. To that end, keep in regular contact, updating them on the progress of any investigation and providing realistic timeframes. Make sure the suspension is brought to an end as soon as possible and that employees are given a named contact with whom they can raise any concerns. 

    Finally,  ensure you keep the reasons for any temporary change confidential and tell the employee how it will be explained to colleagues. 

    You can find the updated ACAS guidance at the following link: https://www.acas.org.uk/suspension-during-an-investigation/

    Update – Monitoring employees at work 

    New draft guidance for employers monitoring their staff at work has been published by the Information Commissioner’s Office (ICO).   

    Monitoring employees is not, in itself, illegal in the UK but is subject to data protection legislation, and in the case of public authorities or organisations carrying out work on their behalf, the right to respect for a private and family life enshrined in Article 8 of the Human Rights Act 1998. Added to that, the increase in homeworking has given rise to new challenges and the greater risk of capturing information about employee’s family and private life. 

    The ICO intend to clarify the current regulations, protect worker’s data protection rights, and help employers to build trusting relationships with workers, customers and service users.

    You can find the guidance at the following link and responses to the consultation can be submitted until 11 January 2023. 


    Government backs Protection from Redundancy (Pregnancy and Family Leave) Bill

    Under Regulation 10 of the Maternity and Parental Leave Etc Regulations 1999 (MAPLE) pregnant women and those on parental leave receive some protection from redundancy. Employers are required to offer them a suitable alternative vacancy (if one exists). 

    A new Private Member’s Bill introduced by Labour MP Dan Jarvis seeks to extend that protection for 18 months after the birth of a child, thus ensuring that a mother returning from a year of maternity leave will be protected from redundancy for another six months. 

    Similar legislation was promised as part of the Government’s abandoned Employment Bill but the Government are now offering support for the Private Member’s Bill and provided it is given sufficient Parliamentary time we may eventually see it become law. 

    Whether you are an employer or employee, we can advise you on any workplace issues that may concern you. 

    Please contact Zoe on 0203 858 9765 or email zoe@mulberryssolicitors.com.  Mulberry’s has offices in Brighton and London.

    This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

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