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Protect Environmental Whistleblowing Toolkit; Neurodiversity in the Workplace; National Living/Minimum Wage; Workers Act 2023; Holiday Pay & TUPE – Employment Law Matters: Edition 6

Welcome to the next edition of Employment Law Matters, our quarterly update on key issues in employment law. Every three months, we will send you a selection of the most important developments for employers in case law and legislation, including practical takeaways for employers as well as things to look forward to in the coming months.
CM Murray LLP are leading specialist employment law advisers to multi-national companies and senior executives. If you have any topics you would like us to cover in our regular updates, please do get in touch.

Protect Environmental Whistleblowing Toolkit

The UK whistleblowing charity, Protect, has published an Environmental Whistleblowing Toolkit which contains useful tips on what a prospective whistleblower ought to consider when raising environmental concerns. The Toolkit also contains numerous case studies and a user-friendly guide on what legal requirements need to be satisfied to qualify for legal protection.

The Toolkit highlights that whistleblowing disclosures pertaining to environmental concerns are rather uncommon, albeit there is an implication that this may change in the future. This is unsurprising in light of the rapidly shifting focus towards more environmentally sustainable practices. For instance, businesses that misrepresent their ESG credentials to suggest that they are more sustainable than they truly are (in other words ‘greenwashing’) might be breaking the law. The Competition and Markets Authority has already published the ‘Green Claims Code’ guidance which deals with greenwashing. The FCA is also expecting to publish its own greenwashing rules in line with its own ESG strategy. 

As the rules on greenwashing will only tighten, it is expected that more environmental whistleblowing concerns will emerge and Protect’s Toolkit can serve as a helpful guide to blowing the whistle safely. You can access the Toolkit here.

Neurodiversity – what should employers be thinking about now?

Is the workplace inclusive? It is likely to be diverse already in relation to neurodiversity, but being inclusive takes more thought. It is not just an internal matter; if a fifth of the workforce is neurodiverse, the client base and business contacts will be too. Common challenges for neurodiverse individuals are a lack of awareness that not all individuals with the same neurodiversity will have the same traits.

Employers are not expected to be experts in this area, but ensuring managers are open to discussion about accommodations for neurodiverse employees is a great first step. Raising awareness will allow colleagues to ask for support or to ask questions about what individuals might need. Where promotion and recruitment opportunities arise, improving transparency and willingness to be flexible in how assessments are carried out will promote inclusion.

For social gatherings, assumptions should not be made that neurodiverse staff or clients won’t want to participate – often they do, but can feel anxious and overwhelmed. Having a quiet space available for use by those who need time out from a crowd is a cost efficient, inclusive step. By far, the most common employment tribunal claims arise where management has failed to listen to a neurodiverse employee asking for reasonable adjustments in a process, or management failing to pass onto new managers information about a neurodiverse employee, resulting in the employee getting into difficulty.

Our three top tips therefore for inclusivity are: raise awareness, be transparent and flexible in processes, and communicate!

National Living Wage and National Minimum Wage

Following recommendations by the Low Pay Commission, the government has announced new National Living Wage and National Minimum Wage rates which will come into force from April 2024.

The National Living Wage will rise to £11.44, an increase of £1.02, which is the largest ever cash increase to the rate and workers over the age of 21 will be entitled to this, whereas it currently only applies to those aged 23 or over.

The National Minimum wage and Apprentice rate will be updated as follows:

  • 18 to 21: Increase to £8.60 from £7.49
  • Under 18: Increase to £6.40 from £5.28
  • Apprentice rate: Increase to £6.40 from £5.28
Workers (Predictable Terms and Conditions) Act 2023

Following the 2019 government manifesto commitment to introduce a right for workers to request a more predictable contract, The Workers (Predictable Terms and Conditions) Act 2023 received Royal Assent on the 19 September 2023.

The aim of this Act is to give workers more predictable working hours by introducing a right for workers on atypical contracts, including zero hours contracts to make a formal application for a more predictable contract if their current working pattern lacks certainty. The government announced that they expect the measures in the Act to come into force approximately one year after achieving Royal Assent, meaning that Employers have time to prepare for the changes that it will bring.

To assist employers and support effective compliance, ACAS have prepared a new draft statutory Code of Practice to provide guidance on the new legislation and this code has been published for public consultation, closing on the 17 January 2024.

Crucially for employers, the code states that an employer must accept a predictable working pattern request unless there is a genuine business reason not to. These are detailed as follows:

  • The burden of additional costs.
  • A detrimental effect on ability to meet customer demand.
  • A detrimental effect on the recruitment of staff.
  • A detrimental effect on other aspects of the business.
  • Insufficient work available for the periods the worker proposes to work.
  • Planned structural changes to the business.

ACAS will also be preparing non-statutory guidance to sit alongside the statutory code and we will update on any significant developments in future editions.

Preservation of discrimination protections derived from EU law following Brexit

Under the Retained EU Law (Revocation and Reform) Act 2023, several discrimination protections deriving from the case law of the European Court of Justice were due to disappear from UK law on 31 December 2023. The government has sought to maintain some of those protections by introducing new secondary legislation which codifies some key aspects of EU case law. The key changes to the Equality Act are as follows:

  • Protection from indirect discrimination is being extended to those who do not share a protected characteristic with a group that is placed at a disadvantage by a particular policy, but who nonetheless suffers the disadvantage with that group.
  • An extension to the statutory definition of disability to provide that in considering whether someone is disabled for discrimination purposes Tribunals should consider whether they are able to participate fully and effectively in working life on an equal basis with other workers.
  • Clarification that less favourable treatment on the ground of breastfeeding constitutes direct discrimination because of sex and that women are protected from unfavourable treatment after they return from maternity leave where the treatment is in connection with the pregnancy or a pregnancy-related illness occurring before their return.
  • Clarification that women who have a contractual entitlement to maternity leave which is equivalent to the statutory rights will benefit from the same period of protection from discrimination as those with the statutory right. This will apply, for example, to members of an LLP (who are not entitled to statutory maternity leave) where the relevant LLP agreement contains a contractual right to equivalent leave.
  • Confirmation that employers may be liable for discrimination if a discriminatory statement is made regarding recruitment practices, even where there is not an active recruitment process underway.
  • The test for who can be a valid comparator for the purposes of an equal pay claim is being clarified to confirm that a comparison may be made where there is a single body responsible for setting or continuing terms and which is in a position to ensure equal treatment between them.
After 31 December, there will be no obligation on the UK courts to interpret the law in line with ECJ case law principles, so these new regulations provide some useful clarity and consistency for employers and employment lawyers alike by preserving the status quo. It remains to be seen, of course, how they will be interpreted in practice.
Holiday Pay

Holiday pay cases, such as Bear Scotland and Harpur Trust, have provided judicial guidance on how employers should interpret our holiday pay legislation. The government’s response to the recent holiday consultation provides further clarification on how employers will be calculating holiday pay:

  • The government will legislate so that ‘rolled up’ holiday pay can be paid for irregular hours and part-year workers, which will allow for an annual leave accrual of 12.07% of hours worked for this group of workers. These workers can therefore be paid an additional amount with their regular pay instead of being paid it when they take their annual leave once that legislation is in force.
  • The four weeks’ statutory annual leave mandated by the EU will not be merged with the additional 1.6 weeks’ leave prescribed under the Working Time Regulations 1998 (WTR) given the difference in calculation requirements for payment of these two different types of leave.
  • The government will also, helpfully, legislate to clarify what is meant by ‘normal’ remuneration for holiday pay purposes.
  • For seasonal workers, the consultation considered whether a longer reference period for calculating holiday pay might be helpful (i.e. 52 weeks). In response, the government says it will introduce an accrual method to calculate annual leave entitlement at 12.07% of hours worked in a pay period which reversing confusion caused by the Harpur Trust decision.
  • Other various EU case law on holiday pay will be restated by the government where necessary to retain worker protection such as carry over of accrued holiday where a worker was unable to take it due to long term sick leave or family related leave (i.e. maternity).
  • In addition, the record keeping requirements under the WTR will be amended to provide that employers will not have to keep a record of workers’ daily working hours.

One interesting government response to its recent consultation on TUPE is that the government will publish legislation to remove the requirement for small employers (organisations with less than 50 employees) from having to consult collectively where there are no existing employee representatives, in connection with a TUPE transfer, instead allowing those employers to consult individually, if that would be its preference, to electing employee representatives for the purpose.

If you would like to discuss any of the topics covered in this update in more detail, please contact Partners Merrill April or David Fisher, both of whom specialise in employment and partnership law issues for multinational employers, senior executives, partnerships, LLPs, partners and LLP members.

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