What to expect in the employment world

Mini Budget De-Brief

You could be forgiven for choosing to ignore the news at the moment – things are changing so frequently it’s proving challenging to make solid plans for anything.

We take a look at what we thought was happening, which Jeremy Hunt told us on 17 October isn’t going ahead after all. Although not all of these are directly employment related, they ultimately impact the cost of living for individuals, and the cost of running a business.

But it isn’t all bad news – the 1.25% reversal of National Insurance rates will go ahead, from 6 November. The Treasury estimates that this will save people an average of ￡330 per year. Not sure that quite balances out the non-changes above, but at least they left us with something!

The Future of EU Derived Law

When the UK left the EU, all legislation and case law in place at that time was frozen, so that it continued to apply even though we were no longer part of the EU. Retained EU law, as it was named, is now the subject of the Retained EU Law (Revocation and Reform) Bill 2022-23, which was introduced to the House of Commons on 22 September.

The Bill says that all law we currently have which derives from EU law, will either:

1.?????Be reviewed and transferred into UK law by 31 December 2023; or

2.?????It will disappear

Effectively, all Regulations we have in place which implement EU law, for example TUPE, the Working Time Regulations, GDPR and the Part Time Worker Regulations, will cease to apply after the end of 2023, unless the government steps in to save it.

The Bill does enable the government to delay the review or repeal of any piece of legislation until 23 June 2026 (i.e. 10 years following the Brexit referendum). So, if the current government is unable, or more likely, doesn’t want, to consider what to do with a particular law, it can simply make it someone else’s problem.

It also states that, after 31 December 2023:

• EU law will no longer take priority over UK law – its supremacy ends. This includes case law – our courts and tribunals will no longer have to defer to EU case decisions
• Any EU law still in place will be known as ‘assimilated law’ (rather than retained law)

What does this mean for employers?

At the moment, we don’t know. The government hasn’t specified what it intends to do in relation to each of the 2,400 EU retained laws and, even if it does, the risk of that changing seems high based on recent events.

In theory, we could see the disappearance of employment laws such as TUPE, holiday entitlement and the maximum 48-hour working week. In reality, it is very unlikely that our fundamental employment rights will go. The UK already affords workers more holiday than the EU requires (the additional 1.6 weeks), and we are well known for advocating strong employment rights and protections.

That said, this Bill does provide the government with an opportunity to tweak the more burdensome aspects of some EU derived law, and it’s likely we’ll see changes in areas like TUPE. There have already been some ideas floated, including:

• MP Peter Dowd has suggested that the maximum working week be capped at 32 hours, rather than the current 48, with no reduction in pay. He thinks we should work 4 days per week, and anyone who works more than 32 hours per week be paid at an 1.5 x overtime rate.
• The Secretary of State for digital, culture, media and sport, Michelle Donelan, said the UK will replace the GDPR with its own, simplified, privacy legislation. This might sound attractive at first glance, but in practice businesses dealing with the EU will need to be GDPR compliant anyway, so two different systems are likely to cause even more of a headache.

Third party harassment protection - will it return?

The Equality Act 2010 originally contained provisions that protected employees from harassment committed by third parties for example, a contractor, or client of the employer. However, these were repealed in October 2013 and, since then, an employer has not been able to be held liable for harassment of its employees by third parties (except in very limited circumstances).

This may change if the Worker Protection (Amendment of Equality Act 2010) Bill, which passed its second Parliamentary reading on 21 October 2022, becomes law.

The Bill seeks to introduce the following changes to the Equality Act:

1. Introduce a preventative duty on employers to take all reasonable steps to eliminate sexual harassment in the workplace, enforceable by the Equality and Human Rights Commission (EHRC).
2. Introduce an uplift in compensation (of up to 25%) for individual complainants if a tribunal finds that an employer has breached this duty.
3. Reinstate protections for workers from harassment from third parties such as clients, customers and patients which will also be enforceable by the EHRC, and by the Employment Tribunal

If passed, the EHRC will produce a statutory Code of Practice, based on its existing guidance on sexual harassment and harassment at work, to support employers. This Code will set out the steps that employers should take to prevent and respond to sexual harassment to comply with its duties.?

Whilst this would represent an important step to help protect victims of, in particular, sexual harassment more fully, it does place greater responsibility on employers to take positive steps to protect their employees against potential inappropriate behaviour from third parties that the employer may have very little, if any, control over.

Employers are unlikely to need to review their policies and practices anytime soon however. As a Private Members bill, it could take some time to become law, if in fact it ever does.

The Bill has been sent to a Public Bill Committee, which will meet on a date yet to be announced. That committee can make amendments to the Bill. The amended version of the Bill then returns to the Commons. To become law, it must also successfully negotiate report stage and third reading, as well as the House of Lords. In practice, most Private Members bills never end up becoming law.

Other Private Members Bills currently progressing through the bureaucratic process include:

• Carer’s Leave Bill - to make provision about unpaid leave for employees with caring responsibilities
• Employment (Allocation of Tips) Bill - to ensure that tips, gratuities and service charges paid by customers are allocated to workers
• Employment (Application Requirements) Bill - to regulate the use of minimum qualification or experience requirements in job applications; and for connected purposes
• Fertility Treatment (Employment Rights) Bill - to require employers to allow employees to take time off from work for appointments for fertility treatment
• Miscarriage Leave Bill - to make provision for three days of paid leave for people who have experienced miscarriage ectopic pregnancy or molar pregnancy before 24 weeks
• Working Time Regulations (Amendment) Bill - to make provision to amend the Working Time Regulations 1998 to reduce the maximum working week from 48 hours per week to 32 hours per week and to provide for overtime pay; and for connected purposes.