It was a busy summer in terms of legal developments for employers, so as we leave the summer warmth behind us and move into the autumn, we provide a quick roundup.

If it’s all too much, do just skim to the headings that are of interest to you. We’ve broken it into three sections:

• Regulatory developments – the things that have actually happened
• The pipeline of regulations still to come
• Guidance and other useful documents – things that have been published over the summer

Regulatory developments …

• The Employment Relations (Flexible Working) Act 2023 received Royal assent on 20 July 2023. It’s not expected to be introduced for another year, and ACAS is consulting on an updated Code of Practice. The amendments are:

• • employees will not have to explain the effect their flexible working request might have on the organisation;
  • two requests may be made each year, instead of one;
  • the time for making decisions is reduced from three months to two;
  • employers should consult employees before making their decision; and
  • the government has also indicated that the right to request flexible working will become a day one right.

This may not represent much change to the practical approach we see many employers already taking with flexible working requests.

• Neonatal Care (Leave and Pay) Act 2023 received Royal Assent on 24 May 2023, but it’s not expected to be implemented until April 2025, as further regulations are needed. In principle, employees will have the right to take leave with pay where a child receives neonatal care, subject to eligibility criteria and detail that will follow in regulations.
• Strikes (Minimum Service Levels) Act 2023, received Royal Assent on 20 July 2023 and provides for the possibility for minimum service levels during strikes in the fields of health, transport, education, fire and rescue, border control and nuclear decommissioning and radioactive waste. Further regulations are needed, but the principle is that when an employer is facing a strike, they will be able to issue a notice specifying the people that are required to come to work. The union then has to take reasonable steps to ensure that those workers do not take part in the strike. The detail will be in regulations and the government has started consultation and published a draft code of practice.
• Workers (Predictable Terms and Conditions) Act 2023 – received Royal assent on 18 September 2023 and is expected to come into effect in 12 months. This gives employees, workers and agency workers the right to request a predictable work pattern in certain circumstances, and employers will need to give a statutory reason for refusing. Regulations will provide more detail in due course and a draft code of practice for handling these requests is expected from ACAS this autumn.
• Pensions (Extension of Automatic Enrolment) Act 2023 received Royal Assent on 18 September 2023 and when it comes into force the Secretary of State can:
  – reduce the lower age threshold for auto enrolment, and
  – reduce or remove the lower limit for qualifying earnings.
  Further regulations are needed before it has any effect.

The pipeline of regulations still to come…

• The proposed Bill of Rights to replace the Human Rights Act has been dropped.
• The Retained EU Law (Revocation and Reform) Act 2023 has been amended to cover only specific measures, so no longer the ‘bonfire’ of worker rights. However, there will still be changes as our courts will no longer need to comply with relevant European law when interpreting UK law. It may lead to fresh debate around some contentious topics such as holiday pay.
• Working Time Regulations, holiday pay – the Government has started consultation on proposed reform. It’s looking at allowing for rolled up holiday pay, merging the two holiday entitlements into one 5.6 week entitlement, and removing the obligation for employers to keep records of hours worked.
• TUPE there are proposals to change consultation obligations for small businesses.
• Restrictive covenants – the Government has also confirmed that when there is time, it will legislate to limit the duration of non-compete clauses to 3 months.
• Parental leave and pay – proposals to support families. The Government has published its Parental Leave and Pay – response to consultation document confirming that some changes will be made, in due course.
• Worker Protection (Amendment to the Equality Act 2010) Bill – a private members bill to reintroduce employer liability for the harassment of employees by third parties. The House of Lords has amended the Bill to remove this protection, and the new duty on employers to prevent sexual harassment has been amended so that the proposed requirement for employers to take “all reasonable steps” is just “reasonable steps”. It’s thought that the bill as amended will be accepted by the government.
• A draft code of practice on dismissal and re-engagement (‘fire and rehire’) was issued by the government in January and consultation closed in April. There’s no indication of what happens next, but the draft code of practice is a useful summary of the practical steps and issues that it would be good to consider
• National Minimum Wage (Amendment) (No.2) Regulations 2023 – draft regulations have been laid before Parliament. If implemented, these will remove the exemption from the NMW that currently applies to domestic workers who live in the employer’s family home and are treated as members of the family. This exemption is intended to cover au pairs, nannies and companions. In October 2021, the Low Pay Commission recommended that the exemption be removed, following the decision of an employment tribunal that this exemption was indirectly discriminatory against women. The Regulations are expected to come into force on 1 April 2024.

Guidance and other useful documents:

• ICO has issued new guidance for employers dealing with subject access requests. Helpful guidance for what can be really tricky situations manage. Links here to the blog, and the guidance.
• Menstruation and menopause in the workplace – the British Standards Institute has published a new standard (BS 30416) providing guidance for employers on managing menstruation, menstrual and menopausal health in the workplace. The standard is designed to help employers support and retain employees experiencing difficulties and provides guidance on:
  • workplace culture
  • training
  • suitable facilities
  • reviewing policies to consider menstruation and menopause
  • considering adjustments such as flexible work or comfort adjustments
• Updated ACAS guidance on managing sickness and other types of absence – this includes advice on absence policies, unauthorised absence, sick pay, sick notes, doctor’s reports and return to work plans. It includes new sections on recording and reducing sickness absence and absence trigger points.
• Artificial intelligence (AI) and employment law – many employers are now engaging with the use of AI in the workplace and implications for employment law. The House of Commons library has published a research briefing on AI and employment. It provides an introduction to AI, considers the various issues of AI at work, identifies employment law implications of its use and current proposals for regulatory reform. As employers inevitably engage with this at work it may be worth a read, and giving careful thought to how AI may be being used in your organisation.
• ACAS encourages employers to ‘do the right thing’ – redundancy or restructure are on the rise and in May ACAS published a blog post urging employers to ‘do the right thing’ and really consider alternatives to redundancies. They suggest increasing the availability of part-time and flexible working, reducing the availability of overtime, and looking at alternative roles and retraining. Five key principles should apply: being fair, open, thorough, genuine and respectful. We’ll add that a process that applies these principles, truly engages with employees at all stages, and reflects the organisation’s purpose and values, will feel and run much more smoothly and feel more human (and is therefore also less likely to lead to litigation).
• Gender reassignment leave – not a legal obligation, but Currys has announced new benefits to support diversity, equality and inclusion including additional annual leave for employees undergoing gender reassignment surgery, IVF, pregnancy loss and premature birth. We’re sharing here as a positive example of what employers might do voluntarily!