Employment update: news in brief | Autumn 2023

A quick round-up of recent employment law developments

New duty to prevent sexual harassment of staff

The Worker Protection (Amendment of Equality Act 2010) Bill has received Royal Assent, becoming the Worker Protection (Amendment of Equality Act 2010) Act 2023 and will come into force in October 2024.The Act will i) introduce a proactive duty for employers to take “reasonable steps” to prevent sexual harassment of their employees in the course of their work and ii) provide for enforcement of the obligation via the EHRC with a potential uplift to compensation of up to 25%. A clause, which would have restored the third-party harassment provisions, which were repealed in 2013, was voted against by the Lords and omitted from the Act.

New right to request predictable terms

The Workers (Predictable Terms and Conditions) Bill received Royal Assent on 18 September 2023 and will give workers and agency workers the right to request a predictable work pattern in certain circumstances. A minimum service requirement to access the right, expected to be 26 weeks, will be specified in regulations. Claims will be possible based on procedural failings by the employer, unlawful detriment and automatic unfair dismissal. The Act and secondary legislation are expected to come into force approximately one year after Royal Assent so that employers have time to prepare.

ICO Guidance on monitoring workers

The Information Commissioner’s Office (ICO) has published guidance, Employment practices and data protection − Monitoring workers. The increase in remote working and technological developments have meant that many employers are seeking to carry out checks on their workers. However, research commissioned by the ICO reveals that over two-thirds of staff (70%) would find monitoring in the workplace intrusive and that fewer than one in five (19%) would feel comfortable taking a new job if they knew that their employer would be monitoring them. The aim of the guidance is to help employers comply with their obligations under the UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018 (DPA 2018) when monitoring staff.

National Living Wage to increase to £11.44 per hour from April 2024

The Government has accepted the Low Pay Commission’s recommendations for the rates of the National Living Wage (NLW) and the National Minimum Wage, which will come, take effect in April 2024.

The NLW, for which the age threshold will be lowered from 23 to 21, will rise from £10.42 to £11.44 per hour.

The other rate changes are as follows:

• 18-20 – £8.60 (increase of £1.11)
• 16-17 and apprentices – £6.40 (increase of £1.12)
• The accommodation offset will be £9.99 per day (increase of 89p).

Equality Act 2010 to be amended to preserve discrimination protections derived from EU law

The Government has laid draft legislation before Parliament to amend the Equality Act 2010 to retain various key rights and principles of equality and discrimination law, which would otherwise have fallen away at the end of this year due the sunsetting provisions of the Retained EU Law (Revocation and Reform) Act 2023 (REUL Act). The amendments include the right to claim indirect discrimination by association; a ‘single source’ test for establishing an equal pay comparator; confirmation that employment discrimination on grounds of breastfeeding falls under the protected characteristic of sex; and an amendment to guidance on the definition of disability to state that consideration of a person’s ability to participate fully and effectively in working life on an equal basis with other workers is relevant when looking at ‘day-to-day activities’

Gender pay gap data published

The Office for National Statistics (ONS) has released gender pay gap information for the UK in 2023. The data covers differences in pay between men and women by age, region, full-time and part-time, and occupation. The gender pay gap in April 2023 stands at 14.3% among all employees (down from 14.4% in 2022), 7.7% for full-time employees (up from 7.6% in 2022) and -3.3% for part-time employees (unchanged from 2022).

Criminal record disclosure timescales reduced for less serious offences

The Government has introduced reforms under the Police, Crime, Sentencing and Courts Act 2022 to shorten the length of time some criminal convictions must be declared to employers. The changes reduce the rehabilitation period for less serious offences, provided no further offence is committed in that time and introduce a rehabilitation period for custodial sentences of over four years, which were previously unable to become “spent”. More details can be found here.