It’s that winter bug season again when employers face increased challenges of managing their business whilst supporting employees with health problems to stay in or return to work!

In the current economic climate and when trying to manage higher client expectations, it’s more important than ever that employers can manage their workforce and tackle absences well. Taking the correct steps from an early stage will help you to meet your commercial objectives whilst also reducing the disruption to the business and legal risks.

During this webinar, we will provide practical advice on how to tackle both short and long-term sickness absence. We will also provide helpful guidance on how to manage and reduce the risks of disability discrimination claims when dealing with absence.

Click here for more information and to register.

As a special feature this month, one of our data protection and privacy specialists, Florence Maxwell, has prepared an update focussing on dealing with data subject access requests (DSARs) from an HR perspective. This blog is available on our website.

The government finally published its long-awaited response to the consultations which took place earlier this year on reforms to retained EU employment law and calculating annual leave entitlement for part-year and irregular hours workers.

Draft regulations addressing the following changes are intended to come into force on 1 January 2024 (if approved) but with some provisions having effect on or after 1 April 2024.

The key outcomes of the response are as follows;

• There will be no single ‘pot’ of holiday entitlement as was suggested. The 4 weeks leave prescribed under EU law, and the 1.6 additional weeks implemented by domestic law, will stay separate and distinct;
• Employers will be permitted to pay rolled-up holiday pay for irregular hours workers and part-year workers.
• Employers will be able to calculate accrual of holiday entitlement at 12.07% of hours worked in a pay period for irregular hour workers and part-year workers;
• Record keeping requirements around working time will be reduced such that employers are no longer required to keep records of daily working time if they can otherwise still prove compliance.
• The regulations will also clarify what must be included in ‘normal’ remuneration for the purposes of calculating holiday pay.
• Rights to carry over holidays in certain circumstances (such as sickness absence and maternity) will be re-stated.
• There will no longer be a need to elect employee representatives under TUPE where business has fewer than 50 employees or the transfer affects fewer than 10 employees.

The response and reforms bring some much needed clarity to holiday pay, and the much discussed topic of retained EU laws following Brexit.

The response does also note that the government is considering ‘more fundamental reforms to the rate of holiday pay’ ,suggesting there is more to come and that as ever, it remains a ‘watch this space’ topic (as evidenced by the case below)!

Actions:

• Review your holiday pay processes and policies in light of the changes due to come into force. Please contact us for any advice or support.

Prior to the above response being published, an important ruling was given by the Supreme Court in the case of Chief Constable of the Police Service of Northern Ireland v Agnew [2023] which could potentially increase employer liability for historic underpaid holiday pay.

In this case employees had not been paid the correct holiday pay, because their payment when taking annual leave had only been basic pay and had not included other elements such as overtime. The case concerned the period for which the employees could claim. The Supreme Court ruled in favour of the employees, allowing use of the ‘series extension’ and holding that whether there is a series is a question of fact, and that a relevant series is not necessarily broken by a gap of 3 months between deductions or by a lawful payment. This is contrary to the previous position, and represents a significant shift in how the value of holiday pay claims, and any back payments, should be calculated.

Actions:

• Review how you calculate and pay holiday pay if you have not already done so.
• When assessing the value of holiday pay underpayments, do not rely on a gap of 3 months or more, or a correct payment, to break the chain (of deductions). You should consider the full period of underpayments which could be claimed for.
• If you are unsure how to calculate any potential liabilities, please contact us for assistance.

In the case of AB v Royal Borough of Kingston upon Thames [2023] the employee transitioned to a female. She gave her employer, a local authority, eight months’ notice that she intended to transition, but her employer failed to update certain employment records, therefore ‘deadnaming’ her (deadnaming is continuing to refer to someone by their pre-transition name). Despite her efforts, it took around two years post-transition to change her name on pension records, the staff directory and on her door pass.

The council accepted that they had not handled the employee’s transition well and that the council did not have up to date policies in place. The tribunal agreed that the council had failed to incorporate the Equality Act’s legal obligations into its policies and did not provide appropriate training to staff.

The employee was successful in arguing, amongst other behaviour, that her employer’s deadnaming, was less favourable treatment on the grounds of gender reassignment, and therefore she was successful in her claim of direct discrimination.

Actions:

• If you have an employee who is transitioning, talk to them about what they want colleagues to be told about their transition and how they wish to be known after their transition.
• Ensure that other employees are aware of how they should address the employee (e.g. specifying what pronouns should be used) in accordance with the employee’s wishes.
• Make alterations to all relevant records promptly and sensitively.
• Ensure that you have up-to-date policies in place supported by staff training on the topic of gender reassignment and in particular deadnaming.

In the case of Henry v Tattu Manchester Ltd [2023] the employee worked as one of the waiting staff in a restaurant. During the employee’s short employment, there were a number of concerns about her performance in the role, and a number of exchanges between the employee and her line manager. On one occasion her line manager said that she looked “tired and unpresentable” and suggested that the employee wear make-up on her next shift.

It was ruled that commenting that the employee looked “tired and unpresentable” was not related to sex, as this could equally be said to a man. However, suggesting that the employee wear make up, is a sex-specific comment which created a humiliating environment for the employee, and was therefore harassment related to sex.

Actions:

• Employees can be required to look smart and professional for the purposes of their employment, but take care not to make comments that are too personal about someone’s appearance.
• Make sure that any appearance requirements are applied equally to everyone, irrespective of their sex.

New harassment legislation in force from October 2024

Keeping with the subject of harassment, the Worker Protection (Amendment of Equality Act 2010) Act 2023 was passed on 26 October 2023 and will come into force in a year’s time. Employers will be under a duty to take reasonable steps to prevent sexual harassment of their employees in the course of their employment, and a tribunal award may be increased by up to 25% for breach of this duty.

It's interesting to note that the draft Bill had proposed to introduce the mandatory requirement for employers to take “all” reasonable steps to prevent sexual harassment, but the “all” requirement has been removed from the Act.

In addition, the draft Bill had proposed to reintroduce employer liability for third party harassment. However, this has also been excluded from the Act because of concerns about impact on free speech and the regulatory burden on employers.

The European Human Rights Commission now intends to update its guidance on sexual harassment in the workplace in order to set out the steps that employers will be required to take in order to be compliant with the new legislation coming into force.

Actions:

• Ensure that robust policies and training are in place to prevent and deal with incidents of sexual harassment in the workplace.
• Consider this additional liability when assessing risks and value of potential harassment claims.

New law on Economic Crime to come in force from December 2023

The Economic Crime and Corporate Transparency Act 2023 also received royal assent on 26 October 2023. The Act is extensive and contains a raft of measures intended to improve transparency over corporate entities and tackle economic crime. The Act will be of interest to employers, as the measures include a new offence of ‘failure to prevent fraud’ plus reform of the identification doctrine.

The failure to prevent fraud offence:

• imposes criminal liability on large organisations where an associated person commits a specified fraud offence intending to benefit the organisation;
• it is a defence if the organisation can prove that at the time of the fraud it had reasonable fraud prevention procedures in place; and
• the government has a duty to produce guidance setting out what would constitute fraud prevention measures, and the offence will not come into force until after this guidance has been published.

The reform of the identification doctrine:

• expands the range of individuals whose actions mean the organisation itself is criminally liable however at this stage applies only to those economic crimes listed in the Act;
• achieves this by extending the identification doctrine to senior managers acting within the actual or apparent scope of their authority; and
• will come into force from 26 December 2023.

Actions:

• Given the potential for criminal liability, organisations should act now to consider how the Act could affect them. A proactive approach to compliance will be needed to avoid both prosecutions and reputational damage.

Steps to consider:

• ensure senior level awareness and understanding of the new offences, and senior level support for implementation of necessary measures;
• involve legal and compliance teams and think about who else needs to be involved in your business;
• review existing processes and procedures, undertake risk assessments, identify and implement new processes and procedures; and
• introduce training thinking about areas of particular risk where additional training is needed, for example with senior managers.