HR teams face a busy year updating policies, procedures and staff training to reflect legislative changes expected to come into force next year. Several Private Members’ Bills have been enacted in recent months (including on carer’s leave, flexible work requests, predictable work requests and extended redundancy protection for pregnancy/family leave returners); yesterday it was the turn of the Worker Protection (Amendment of Equality Act 2010) Bill to receive Royal Assent. Unfortunately for those keen to get a head start on updates, most of these changes require regulations and statutory codes to flesh out the detail and many of these are yet to be published and finalised.
The Worker Protection (Amendment of Equality Act 2010) Act will introduce a new proactive duty on employers to take reasonable steps to prevent sexual harassment (ie, unwanted conduct of a sexual nature) of employees in the course of employment, in force from 26 October 2024. The original provisions to introduce liability for third party harassment and for the new duty to require all reasonable steps were removed following opposition in the House of Lords. The one year lead-in period will allow the EHRC to finalise a new statutory code of practice (likely to be based on the EHRC’s technical guidance published in January 2020, discussed here), and employers will then need to take appropriate steps to comply with the duty. Policies and manager/staff training will need reviewing and likely updating to reflect the new code.
Breach of the new duty will not give rise to a separate tribunal claim, but compensation for a sexual harassment claim (under the current law, where the employer defence to vicarious liability still requires the taking of all reasonable steps) could be uplifted by up to 25% if there is a breach of the duty to take (some) reasonable steps. An employer could also be subject to enforcement action by the EHRC for breach of the new duty.
…
This week has also seen the publication by Acas (for consultation until 17 January 2024) of its draft statutory Code on the new right to request more predictable working conditions provided for in the Worker (Predictable Terms and Conditions) Act passed last month. Regulations have yet to be made (or a draft published) to fill out the details of the new right and bring it into force, expected to be in Autumn 2024 – but hopefully the detail in the draft Code is reflective of inside knowledge on the likely content of those regulations! For example, the Act leaves it to regulations to specify the service requirement to be eligible for the right; the draft Code provides that:
- for a request to an employer, the individual must have worked for the employer “at least once in the month in the period before the 26 weeks” leading up to the day of the request (the words “in the period” seem to be superfluous)
- for a request to an agency, a worker must have had a contract with the agency “at some point in the month before the 26 weeks” leading up to the day of the request, and
- for a request to a hirer, a worker must have worked in the same role with the same hirer for 12 continuous weeks within the 26 weeks leading up to the day of the request.
The Act will give workers and agency workers the right twice a year to request a predictable work pattern if their work is currently unpredictable, ie their contract is for 12 months or less, or they work an unpredictable number of hours or days of the week or times. The Act does not specify that it is the contractual hours/times requirement that must be unpredictable (as opposed to the actual working pattern in practice); the draft Code does not touch on this either but hopefully the regulations will clarify this.
The statutory framework of the new right is similar to that for making flexible working requests – see our blog post here for further details. In the same way as for flexible work requests, the legislative obligation on employers is to deal with requests ‘in a reasonable manner’ and it is the statutory Code that tribunals will take into account in determining what that means in a particular case. As for flexible work requests (see our blog post on the draft revised Code here), the Code recommends that employers hold a meeting to consider a request, allow a companion (a colleague or union representative or official) to attend, provide reasonable additional information to help explain a refusal, and allow an appeal. All of these will need to be completed within the one month timescale for giving a final decision – so it will be important to avoid procedural delays. (The timescale is shorter than for flexible work requests, which is currently three months but due to be reduced to two.)
The Act provides that, if the employer accepts a request after the current contract has ended, a new contract must be offered within two weeks, but does not set out a timeline for employers to give effect to an agreed change where the worker has remained employed since making the request. Surprisingly, the current draft of the statutory Code does not address this.
Acas is also planning to publish non-statutory guidance with more detail on the new right.
Employers may want to respond to the consultation here, and should keep a watching brief and plan to update their policies and staff training once the drafts and implementation dates are finalised.
Please do get in touch with your usual HSF contact if you would like to discuss any of these developments in more detail.
For further information, please contact:
Anna Henderson, Herbert Smith Freehills
anna.henderson@hsf.com
