HR and Employment Law FAQs September 2024

According to the briefing notes which the new Government published to accompany the King’s Speech on 17 July, an Employment Rights Bill will be introduced to Parliament within the Government’s first 100 days in office. (Note, however, that this does not mean that the planned new measures will be implemented within 100 days, as the process of a passing a bill takes time and some measures will require consultation and secondary legislation.) The King’s Speech briefing notes state that the Bill will include the following:

• Banning “exploitative” zero-hour contracts, ensuring workers have a right to a contract that reflects the number of hours they regularly work and that all workers get reasonable notice of any changes in shifts with proportionate compensation for any shifts cancelled or curtailed.
• Ending ‘Fire and Rehire’ and ‘Fire and Replace’ by reforming the law to provide effective remedies and replacing the previous Government’s statutory code of practice.
• Making parental leave, sick pay and protection from unfair dismissal available from day one of employment – although employers will still be able to operate probationary periods to assess new hires.
• Strengthening statutory sick pay by removing the lower earnings limit to make it available to all workers, as well as removing the three-day waiting period.
• Making flexible working the default from day-one, with employers required to accommodate this as far as is reasonable.
• Strengthening protections for new mothers by making it unlawful to dismiss a woman who has had a baby for six months after her return to work, except in specific circumstances.
• Establishing a new Single Enforcement Body, also known as a Fair Work Agency, to strengthen the enforcement of workplace rights.
• Updating trade union legislation, removing certain restrictions on trade union activity and simplifying the process of statutory trade union recognition.  

To read more about the Government’s planned changes to employment law, see here. We also have a detailed plan setting out key steps Make UK recommends HR take now to prepare - see here. 

On 14 August, Stephen Phipson, CEO of Make UK – along with senior representatives from a cross section of other major business organisations and trade unions – attended a meeting hosted by the Deputy Prime Minister, Angela Rayner, and the Business Secretary, Jonathan Reynolds, to discuss the Employment Rights Bill. To read more about this meeting, see here. Further engagement between Government, trade unions and business representatives is planned and Make UK looks forward to continuing to work with the Government and sharing insights on behalf of Make UK members via both similar meetings and the upcoming consultations on proposed changes to the law.  

We will be covering these proposed legislative changes in more detail in our Autumn Employment Law Updates. Click here to book your place.  

If you are a Make UK subscriber, you can speak with your regular adviser about the Government’s planned changes to employment law and/or access further information on general employment law issues in our HRL Resources. If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business. 

This is a complex issue which needs to be tackled carefully and considered from various angles.  At the outset, it is important to note that a new duty on employers to take reasonable steps to prevent sexual harassment at work will take effect from 26 October 2024 (when the new Worker Protection (Amendment of Equality Act 2010) Act 2023 comes fully into force). This new duty will be enforceable by the Equality and Human Rights Commission (EHRC), and employment tribunals will have the power to uplift the compensation awarded in sexual harassment cases by up to 25% if they find that an employer has failed to comply.  The EHRC has welcomed the introduction of this new duty and plans to produce technical guidance (see details of the public consultation, which has now closed, here).

In order to minimise the risks of sexual harassment occurring within your organisation, it is vital to create a culture which makes clear that inappropriate behaviour will not be tolerated, i.e. that you take a zero-tolerance approach to all forms of harassment. Staff need to feel able to raise concerns and be confident that any allegations will be handled fairly, regardless of the status of the alleged perpetrator. Creating the right culture includes ensuring that you have the right HR policies in place – such as equal opportunities and anti-harassment and bullying policies. That said, policies are of little use if they are just kept in a drawer gathering dust. It is essential therefore that you communicate your policies effectively to all staff and ensure that they are implemented consistently in practice.

You should also provide awareness training to all staff. Thorough training on what constitutes sexual harassment and how employees should report inappropriate behaviour that they have experienced, or witnessed, can be a key method of prevention and help to ensure employees are aware that the company takes the issue seriously.

Separately, we recommend additional training for managers, to help them spot when someone may be experiencing harassment, how to investigate allegations properly and how to support the individuals involved.  Managers also need to be trained on how to take disciplinary action as appropriate. It is important to refresh your training regularly to ensure that it does not go “stale”.

It is worth noting too that the new Labour Government has indicated that it will take further steps to tackle workplace sexual harassment in due course.  We will of course keep our subscribers updated on likely developments.

If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information about discrimination, harassment and bullying, including template policies and drafting guidance, in the HR & Legal Resources section of our website.

In addition, Make UK offers a package of support aimed at preventing harassment at work, including a template anti-bullying and harassment policy (including management guidance notes), staff surveys (Pulse surveys) and anti-harassment training for staff (micro-awareness video and/or half day workshop). For further details see Sexual Harassment | Make UK.

If you are not a Make UK subscriber, see here for more information on our subscription, consultancy and training services.

A “wrongful dismissal” will arise where an employer dismisses an employee in breach of the terms of an employee's contract.  For example, if an employer dismisses an employee without giving proper notice, the employee will have a claim for wrongful dismissal.

A dismissal can also be wrongful if an employer has disregarded other terms of the employee's contract. As another example, if the disciplinary procedure has been incorporated into an employee's contract of employment, it would be wrongful to dismiss the employee for misconduct without first going through that procedure. It is for this reason that we recommend employers avoid incorporating disciplinary procedures into the contract of employment.

Where an employee resigns in response to their employer’s fundamental breach of the terms of their contract of employment, this may be considered a constructive wrongful dismissal – i.e. the employee is entitled to treat themself as having been wrongfully dismissed by the employer.

An employee who is wrongfully dismissed can claim compensation, known as damages, from the employer. This claim can be made either in the civil courts or in an employment tribunal (although an employment tribunal cannot award more than £25,000 in damages).

When assessing the amount of damages to award, the court or tribunal will aim to put the employee in the position they would have been in had the employer observed the terms of the contract. For example, if the employer has dismissed the employee without proper notice, the employee will be awarded their loss of earnings and other benefits for the notice period that should have been given, net of tax and National Insurance contributions. The employee is under a duty to minimise their loss by looking for another job, and any earnings that the employee receives from other employment in what should have been the notice period will reduce the damages awarded.

Note that it is important not to confuse the concept of wrongful dismissal with the concept of unfair dismissal. A dismissal will be wrongful if it is effected in breach of contract, whereas a dismissal will be unfair if you have dismissed for an unfair reason and/or not acted reasonably in deciding to dismiss.

If you are a Make UK subscriber, you can speak with your regular adviser about dismissal related queries and/or access further information in our HRL Resources. If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business. 

No, since 1 January 2024 employers are no longer required to keep records of all daily working hours. However, you must keep records to prove that:

• employees are not working more than the 48-hour weekly maximum which is permitted under the Working Time Regulations (WTR), unless the individual has signed an opt-out agreement, in which case you need to keep a signed copy of that opt-out agreement;
• working hours are not exceeding the limits which apply in relation to night working;
• you have offered regular health assessments to night workers; and
• young workers are not working during a restricted period. (Note that for workers who have not yet turned 18, the WTR impose a limit of 40 hours on the working week and eight hours on the working day, with no possibility of averaging or opting out. Workers aged under 18 are also prohibited from working between 10pm and 6am.  These limits can be exceeded in some exceptional circumstances, but particular care needs to be taken in relation to young workers so we recommend taking legal advice on your specific circumstances when managing employees who are under 18.) 

You are required to retain records for two years, but you may want to retain them for at least three years, in case they are needed to defend a personal injury claim.

Remember that under data protection law you should not keep employees’ personal data for longer than necessary. Keeping records as required for compliance with the WTR will be permitted. If you intend to keep records for longer than required under the legislation, you will need to consider whether this is compliant with data protection law requirements.

If you are a Make UK subscriber, you can speak with your regular adviser about working time related queries (as well as issues relating to retention and deletion of employment records) and/or access further information in our HRL Resources. If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business. 

On termination of employment, an employee is entitled to receive a payment in lieu of any statutory holiday entitlement they have not used prior to their departure from the business.  This untaken statutory holiday should be calculated in accordance with a formula which is set out in the Working Time Regulations (WTR). Essentially the formula reflects the proportion of the holiday year that has expired and the proportion of the employee’s annual holiday entitlement that has been taken at the termination date and provides for payment based on the statutory holiday pay calculations applicable when holiday is taken during employment. Although the WTR state that employers can pay for untaken holiday entitlement in accordance with a ‘relevant agreement’ (e.g. the employment contract), case law indicates that an employer cannot use a relevant agreement to provide a smaller payment.

Note that the payment in lieu of holiday should also include payment for any untaken statutory holiday that has been carried forward, such as holiday that the worker has been unable to take due to sickness or family leave.

It is worth keeping in mind that if a departing employee has taken more statutory holiday than their proportionate holiday entitlement for that holiday year, you can require them to compensate you, as long as this has been made clear in a relevant agreement. If this has not been made clear, then you will not be entitled to recover the overpayment.

Remember too that you are free to deal with/agree with employees how to deal with contractual holiday on termination of employment as you wish. In our experience, this is usually set out in the employment contract and, for simplicity and administrative reasons, employers tend to deal with contractual holiday in the same way as statutory holiday.

If you are a Make UK subscriber, you can speak with your regular adviser about holiday and termination related queries and/or access further information in our HRL Resources. If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.