Employment in the news | October 2024

Contents

• The Employment Rights Bill
• Preventing sexual harassment
• Fire and re-hire
• Whistleblowing

The Employment Rights Bill

“Game changing” or “chaotic and poorly planned” depending on your perspective, it’s clear that the Employment Rights Bill is a significant shake up of the employment rights landscape. You can read about the Bill here and watch our recent webinar here.

Since the Bill’s publication, the government has issued four consultation papers, considering:

• Increased sanctions for collective redundancy consultation failures, so it’s harder for an employer to “buy out” consultation obligations than it is to comply with them. The government suggests increasing the current cap on the protective award from 90 to 180 days’ (actual) pay per employee or removing it entirely. Employees may be able to claim interim relief in connection with a claim for a protective award in future.
• Extending the new right to be offered guaranteed hours to agency workers, to discourage employers from using agency workers instead of zero/ low hour workers. The paper asks whether the end user or the employment agency should be responsible for making an offer.
• The appropriate rate of statutory sick pay for workers earning less than the national insurance lower earnings limit. The government suggests employees should receive between 60 and 80% of their normal earnings if that is lower than the SSP flat rate.
• Changes to the statutory trade union recognition process and the industrial action framework, to make it easier for unions to obtain recognition or call industrial action. It also covers the government’s proposed approach to union access agreements, which will allow union officials to enter workplaces to represent, recruit or organise members.

Next step

• The consultations close on 2 December 2024 (4 December for the SSP consultation).
• Continue to monitor for further consultation exercises, as the Bill’s requirements are fleshed out in the coming months.

Preventing sexual harassment

The duty to take reasonable steps to prevent sexual harassment came into force on 26 October. An employer who fails to comply risks enforcement action by the EHRC and the possibility of increased compensation in successful tribunal harassment claims.

Next steps

• Employers should make sure they have read the relevant sections of the EHRC technical guidance on sexual harassment and harassment at work. Chapter 4 is particularly relevant when considering what amount to reasonable steps.
• If you would like a copy of our checklist highlighting the key issues to think about when reviewing your approach to sexual harassment in the workplace, please email your usual Hogan Lovells contact.

Fire and re-hire

The Employment Rights Bill will make it harder for employers to change employees’ terms and conditions by dismissing and re-engaging them. In future, such dismissals will be automatically unfair unless the viability of a business is at stake.

As that change won’t come into force immediately, the government is increasing the existing penalties for employers that fail to comply with the ACAS Code of practice on dismissals and re-engagement when seeking to change contractual terms. An employment tribunal can already increase unfair dismissal compensation by up to 25% if an employer unreasonably fails to comply with the Code. From 20 January 2025, tribunals can apply an uplift to collective redundancy protective awards in a fire and re-hire situation. That could be a significant cost if large numbers of employees are involved.

Next steps

• Ensure you are familiar with the “Fire and re-hire” Code of practice if you are contemplating making changes to employees’ terms and conditions of employment.
• Start any required redundancy consultation in good time, and at a stage where consultation about avoiding dismissals and minimising the number of dismissals is meaningful.

Whistleblowing

The EAT decision in MacLennan v The British Psychological Society confirms that a worker can bring a claim for a detriment suffered because they made a protected disclosure before they started work.

Although the main point in the case was whether Dr MacLennan was a worker, the more widely applicable question was whether he could claim whistleblowing protection in relation to a disclosure he made before he started his role. He argued that he had been expelled from the Society because of protected disclosures he made before he became its President-Elect.

It’s already clear that a worker can complain about a detriment they suffer after the end of employment because they made a protected disclosure either during their employment or after it ended. Taking the same purposive approach, the EAT found that a worker can claim protection once they have started work in respect of a disclosure they made to their employer before the employment began.

Next steps

• The situation dealt with in MacLennan is unusual and unlikely to arise unless there is an existing relationship between an employer and a worker when the employment begins. It’s nonetheless a reminder of the wide scope of whistleblowing protection.
• At the moment, job applicants (except in the NHS) are not covered by the legislation.
• That may change. In February 2025, the Court of Appeal will hear Sullivan v Isle of Wight Council, which argues that excluding job applicants from whistleblowing protection is incompatible with the European Convention on Human Rights.

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Authored by Jo Broadbent, Ed Bowyer and Stefan Martin.