Employment Edit: 30 May 2024

Labour’s employment law proposals

Following the announcement of the general election last week, the Labour Party published it’s ‘Plan to Make Work Pay’, which sets out its proposals for employment law reform. The plan builds on and supersedes its Green Paper, ‘A New Deal for Working People’.
 
The proposals are wide-ranging and could have a significant impact on the world of work, if Labour were to win the election and bring these changes into effect. Headline reforms include making basic employment rights (like unfair dismissal rights) available from day one of employment, updating trade union legislation and moving towards a single status of worker (rather than the current system which differentiates between workers and employees). 

Codes of Practice update

Prior to the dissolution of parliament ahead of the general election, there was a ‘wash-up’ period in which several pieces of pending legislation were reviewed. Two important codes of practice progressed during this period:

• Legislation bringing a new code of practice on dismissal and re-engagement (often referred to as ‘fire and rehire’) into force on 18 July 2024 was passed. Read more about the code here. Where an employer has unreasonably failed to comply with the code, any awards for relevant employment tribunal claims can also be increased by up to 25%. Legislation which would have extended these uplift powers to apply to a protective award of up to 90 days’ pay made for an employer’s failure to comply with its collective consultation obligations does not appear to have been passed during the wash-up period, so it remains to be seen whether that change will be made. 

The enacting legislation states that the code does not apply where the prospect of dismissal and re-engagement has been raised by the employer with the employee and/or their representatives before the code comes into effect on 18 July 2024.

• A code of practice on the fair and transparent distribution of tips was approved by the House of Lords. Further legislation is required in order to confirm the commencement date of the code and the measures under the Employment (Allocation of Tips) Act 2023 – both were anticipated to come into force on 1 October 2024 but watch this space for more news on these timings. Read more about the code and the measures included in the Act here.

Other legislation progressed?

During the wash-up period, the Paternity Leave (Bereavement) Act 2024 was passed – this Act will enable regulations to be passed which set out the leave that can be taken by a father or partner in circumstances in which the child’s mother or adopter dies, and to remove the requirement for such fathers and partners to have 26 weeks’ service. Further details on this entitlement to leave, including the length of that leave, are expected to be set out in regulations in due course.
 
We will have to wait until after the general election to see how other pending legislation, announced reforms and consultations (see further below) progress. One of the main outstanding areas for reform in the employment space is the new right to request a predictable working pattern – it was expected to come into force this autumn, but we have been awaiting further details on the right, including the length of service a worker would need to have in order to be eligible to make a request. We will keep you posted if there are any further developments in relation to this right.

Consultation on TUPE and Works Council reforms

Earlier this month, the government launched a consultation into proposed changes to the TUPE Regulations. These proposed changes are:

• to reaffirm that only employees (and not workers) are protected by the TUPE Regulations; and
• to remove the obligation to split employees’ contracts between multiple employers where a business or services are transferred to more than one transferee.

Each of these proposals aims to tackle uncertainties that have arisen from recent caselaw, around the scope of TUPE and the practical implications where there are multiple incoming transferees. The consultation closes on 11 July 2024.
 
The consultation also sets out a proposal to abolish the remaining framework that is in place for European Works Councils (EWCs) in the UK. After Brexit, steps were taken to remove the obligation for relevant multi-national businesses to set up new EWCs in the UK, but the framework remained in place for existing EWCs to operate. It is this framework that the consultation proposes to abolish to allow remaining EWCs in the UK to be disbanded.

Challenge to minimum service levels strike restrictions

The Public and Commercial Services Union (PCS) has reportedly been granted permission to pursue judicial review proceedings challenging the legislation that introduced minimum service levels affecting border security. Although its challenge is specific to border security, equivalent legislation applies to other specified public services, including passenger rail and fire & rescue services.

One of PCS’ arguments is that the minimum service level requirements fail to give lawful and proportionate protection to the right to strike, which forms part of the right to freedom of assembly and association under Article 11 of the European Convention on Human Rights. A hearing to consider the case is expected later this year.

EHRC priority areas

In its business plan for 2024-2025, the Equality and Human Rights Commission (EHRC) identified six priority areas. These include:

• tackling sexual harassment in the workplace, including via a campaign to help employers prepare for the new duty to prevent sexual harassment of their employees in the course of their employment which comes into force on 26 October 2024. Read more about how to prepare for the new duty here.
• regulating AI, including looking at tools that could tackle algorithmic bias and discrimination.