Employment Law Roundup for SMEs – November 2023

 

1. Equality Act – following a re-jig of the law in relation to Sexual Harassment, employers now have a duty of care to take reasonable steps to prevention. Compensation has been upped by 25% if you lose a case where this cannot be proved. 

Suggested action: Ensure your policies are updated, and that in day-to-day work, any grey areas (typically “banter”) are clearly understood. And that all of your people managers are fully trained on your equality policy and working practices, and this is revisited on a yearly basis. 

 

2. Ex-Offenders – in a bid to support ex-offenders back to work, offences resulting in custody of 4 years or less will no longer have to be declared at application stage after a 7-year period. 

 

Suggested action: Amend any job application forms and take advice on updating your pre-work checks. 

 

3. Post-Brexit Reforms - The Government has published its response to the consultation on post-Brexit reforms to employment, including the headache that is calculating holiday pay for irregular workers. Calculating holiday pay is due to be simplified, which is good news for small employers. 

 

Suggested action: If you employ irregular workers, take advice on updating your holiday policy and methods of calculation. This will save you significantly in time spent. 

 

October 2023 saw the Equality Act get a bit of a ‘re-jig’ in relation to Sexual Harassment. The Worker Protection (Amendment of Equality Act 2010) Act 2023 received Royal Assent and will become law in October 2024. 

 

What does that mean for employers? 

The main changes are: 

 

• Employers will have a duty to take reasonable steps to prevent workplace sexual harassment. 

• Where there is a finding that sexual harassment has taken place at work, the compensation awarded can be uplifted by up to 25% if the employer has failed in its duty to take reasonable steps. (i.e., its going to cost you a lot of money). 

 

What can employers do to hit that ‘reasonable’ criteria – 

 

• Are your Anti-harassment policies up to date and relevant? 

• What does your complaints process look like? Do you have one? 

• How often are your employees trained on bullying, anti-harassment and equality? This should happen on a yearly basis, 

Over 120,000 former offenders will find it easier to get work and turn their lives away from crime following a change in the law. 

As of 28 October 2023, reforms came into effect under the Police, Crime, Sentencing and Courts Act 2022. They will immediately impact thousands of people with previously unspent convictions, and many more each year. Nearly 125,000 people sentenced in 2022 alone will benefit from these changes. 

 

 

• law change will help ex-offenders turn their back on crime and reduce reoffending. 

• certain custodial sentences will no longer need to be declared removing a significant barrier to offenders rebuilding their lives. 

• most serious offenders exempt from changes to keep the public safe. 

 

These changes significantly reduce the time people with criminal convictions are legally required to declare them to most potential employers after serving their sentence and when applying for courses, insurance, and housing. Now, custodial sentences of four years or more years for less serious crimes become ‘spent’ after a seven-year period of rehabilitation, if no further offence is committed. Offenders who have committed serious sexual, violent, or terrorist offences are excluded from these changes to ensure this does not result in an increased risk to the public. Stricter disclosure rules will continue to apply to jobs that involve working with vulnerable people, through standard and enhanced DBS checks. 

The Government has published its response to the consultation on post-Brexit reforms to employment, including the headache that is calculating holiday pay for irregular workers. Calculating holiday pay is due to be simplified. Hooray!! 

 

From 1st January 2024, the Government have announced that employers will be able to use the 12.07% of hours worked formula, to calculate accrual of annual leave entitlement for irregular hours workers and part year workers. 

 

Also, for simplicity when calculating part year and irregular hours workers, rolled up holiday pay will be introduced, which will enhance workers regular pay, rather than to be paid when they take annual leave. 

 

Further, if you have any employees who still have carry-over leave from Covid-19, a backstop of 31st March 2024 has been introduced for all carry-over leave from this period to be taken by this date. When the legislation comes into effect this will make the position on holiday accrual more straightforward for employers and employees. The Government report has also provided clarification of Working Time Regulations (which comes from the Working Time Directive) record-keeping requirements. 

Moving forwards the regulations will make clear that the employer must have records to show: