February HR round-up

Stephanie Thomas

Written By Rachael Hurst, Technical HR Consultant

2nd March 2023

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This month we’re looking at some of the key legislative developments around neonatal care and family-friendly leave and the statutory change that employer’s need to be aware of.

There’s new legislation about sexual harassment in the workplace and steps to be put in place to protect employees in the workplace.

In addition to this, new legislation regarding data privacy guidance, resignation with pay in lieu of notice update, including the recent appeal for Fentem v Outform. Some key dates to keep in your diaries over the next month too, including international women’s day and endometriosis action month.

Legislative Developments

Protection from Harassment

The worker protection (Amendment of Equality Act 2010) Bill arose out of the response to the Government consultation on sexual harassment in the Workplace in 2021. The new Bill set to be introduced in 2023 will reintroduce employer’s liability for third party harassment of employees. For example, by customers and clients throughout the course of their employment.

Employers will therefore be liable if they fail to take all reasonable steps to prevent such harassment and liability can apply to the first incident of harassment that occurs. The previous ‘three strikes’ requirement i.e., the need for previous incidents of harassment before a claim can be brought, will not be reintroduced. The liability will apply to all acts of third-party harassment in the workplace, meaning that harassment on the grounds of age, race, religion, or sexual orientation, for example, will be protected.

The Bill will also introduce the fact that employees will not be able to bring a standalone claim based on an employer failing in this preventative duty. If, however employees are successful in bringing a sexual harassment claim under the Equality Act 2010 and can show the employer has breached this new duty, then an Employment tribunal will have the power to uplift the compensation awarded to employees by up to 25%.

The Equality and Human rights commissions (EHRC) will also be able to bring separate enforcement actions against employees for breaches of the new duty, although we expect this is likely to be reserved for the most severe cases.

Family-Friendly Leave

The Neonatal Care (leave and pay) Bill will create a new day-one right for employees to take up to 12 weeks neonatal leave if their baby needs to spend time in the neonatal care. There will be a statutory rate of pay for those with at least 26 weeks continuous service.

In addition, the carer’s leave bill will introduce a day-one right for employees to take one week’s unpaid leave each year to provide or arrange care for a dependant with a long-term care need.

Subject to specified notice periods, the leave can be taken in increments of a day or half a day over a 12-month period, and this will cover any injury/illness that requires care for more than 3 months, a disability under the Equality Act 2010 or care for a reason connected with old age.

The Bill is due to become law this year, and detailed regulations are expected in 2024.

Resignation with PILON

Within the next month the Court of Appeal will hear an appeal in Fentem v Outform EMEA Ltd. The EAT had held that it was bound by the 1994 decision in Marshall Ltd v Halmblin that an employee is not dismissed for unfair dismissal purposes within the Employment Rights Act 1996, when, following their resignation, the employer relies on a contractual payment in lieu of notice provision to bring forward their termination date.

The EAT held the reasoning in Marshall was problematic, but it could not depart from it because the decision was not manifestly wrong.

Employee Data Protection

The government has announced its intention to replace the UK GDPR with a ‘British Data protection system’. This will be introduced by means of amending the Data Protection and Digital information Bill and is likely to steer a move away from some of the perceived inconveniences of the current EU derived regime.

There is also likely to be an update in relation to data protection and employment practices guidance in 2023 from the Information Commissioner’s Office, which will be replacing the ICO’s employment practice code, which are still based upon the old 1998 Protection Act.

Code of Practice on Dismissal and Re-Engagement

The Government is launching a Code of Practice on dismissal and re-engagement, on the 24th of January 2023 BEIS launched a consultation on its draft Code of Practice, which set out detailed steps that an employer should take when contemplating making changes to employees’ terms and conditions. The code advocated the provision of sufficient information (such that employees understand their employer’s motivation and nature of any proposals.) That the employee is engaging in meaningful consultation and deterring employers from using the threat of dismissal.

The draft code does not suggest a prescribed timeframe for consultation but notes that it is unusual for a long timeframe to be detrimental. Subject to the outcome of the consultation, which closes on 18th April 2023, the draft Code would be issued under section 203 of the Trade Union and Labour Relations (consolidation) Act 1992 giving ET’s the power to adjust compensation by up to 25% for non-compliance.

Some key dates for your diary

Note: The above guidance was correct at the time of writing this article on 25/02/23. This does not constitute legal advice and is for information purposes only.
If you have any questions regarding the content of this newsletter or would like more information to support your business with the changes, please get in touch.

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