Employment Edit: 25 July 2024

New government’s plans for reform

Prior to the election, the Labour Party set out an ambitious vision for employment law reform in its ‘Plan to Make Work Pay’ (MWP). Following last week’s King’s Speech and accompanying briefing notes (which we discussed in this blog post), we have a clearer idea of the new government’s priorities and legislative agenda. We have now updated our article on the proposals set out in MWP to reflect the latest position. Check it out below.

In addition, we have also taken a closer look at what the new government is proposing on the business immigration front and what its proposals could mean for employers recruiting overseas nationals.

Legal updates

Preventing sexual harassment

From 26 October 2024, employers will be under a proactive duty to take reasonable steps to prevent sexual harassment of their workers and employers should be taking steps to address this now. Ahead of the new duty coming into effect, the Equality and Human Rights Commission (EHRC) has issued a consultation on the changes that it proposes to make to its technical guidance to take the duty into account.

In this blog post, Kate Redshaw and Huw Cooke pick out some key takeaways from the draft changes and consider what employers should be doing. In particular, they note the nature of the duty as an anticipatory duty meaning it is crucial that employers anticipate scenarios when its workers may be subject to sexual harassment in the course of employment and put in place pre-emptive measures to prevent such harassment from occurring. We consider how employers can prepare for the new duty in more depth in our article below. If you need advice on how this new duty will affect your organisation, please get in touch with your usual Burges Salmon contact or contact [email protected].

‘Fire and rehire’

A new statutory code of practice on dismissal and re-engagement (often referred to as ‘fire and rehire’) came into force on 18 July 2024. Although prior to the election the Labour Party criticised the code for not going far enough, the Department for Business and Trade issued a statement last week explaining that the government has decided to allow the code to come into force as planned to provide a small additional level of protection. It then intends to bring forward a strengthened version of the code alongside its other planned reforms to fire and rehire set out in its Plan to Make Work Pay, which we explore in our article here.

The newly in force code (which can be found here) sets out the steps that an employer should follow when it is contemplating changes to terms and conditions and envisages it might dismiss employees if they do not agree to the proposed changes. Where an employer has unreasonably failed to comply with the code, awards for relevant employment tribunal claims can also be increased by up to 25%.

Discriminatory adverts

The EHRC has amended its guidance on discriminatory adverts. The guidance aims to help employers and organisations ensure that adverts are lawful and do not discriminate. In particular, EHRC has updated the guidance on when an advert can restrict a job to those with a particular protected characteristic where it is necessary for the role. This is known as the ‘occupational requirement’ exemption under the Equality Act 2010.

The updated guidance contains examples of occupational requirements and when such a requirement might be a proportionate means of achieving a legitimate aim. The guidance also makes clear that, where the occupational requirement relates to a person’s sex, ‘sex’ means a person’s legal sex as recorded on their birth certificate or their Gender Recognition Certificate.