Employment Law Round-Up August 2024

Click the links below to read more about the changes in employment law from August:

• • UK government considers ‘right to switch off’ legislation with potential compensation uplift
  • ICO launches privacy notice generator to help small businesses with GDPR compliance
  • UK government confirms plans to repeal Trade Union Act 2016, signalling shift in industrial relations policy
  • Government confirms full implementation of ‘plan to make work pay’
  • Police’s non-competitive promotion of minoritised ethnic sergeant was unlawful positive discrimination

 

UK government considers ‘right to switch off’ legislation with potential compensation uplift

The government’s ‘right to switch off’ for workers, as outlined in their ‘plan to make work pay’, would allow employees to disconnect from work outside of their designated working hours, prohibiting employers from contacting them during this time.

It is suggested that employers who persistently breach this new right may face increased compensation claims from affected workers. It is understood that the government is likely to enact this right through a code of practice, similar to the approach taken in Ireland. While such a code would not create a standalone claim, it could potentially allow workers to seek up to a 25% uplift on compensation in certain employment claims, though the specific claims that this might apply to are yet to be determined.

Government sources have indicated that the policy may be tailored to individual workplaces, with employers potentially required to agree on contact hours with workers, similar to the current system in Belgium. The government has acknowledged the need to consider the impact on smaller businesses and has stated that they are exploring various approaches to benefit both employers and employees.

ICO launches privacy notice generator to help small businesses with GDPR compliance

The Information Commissioner’s Office (ICO) has recently introduced a privacy notice generator tool, designed to help small businesses and organisations create customised privacy notices. This development aims to facilitate compliance with the UK General Data Protection Regulation (GDPR), particularly in relation to Articles 13 and 14, which outline the requirements for controllers (the employer) to provide privacy information to data subjects (the employee).

The tool has been specifically tailored for sole traders, start-ups, small and medium-sized enterprises, and charities. Its primary purpose is to alleviate the financial and administrative burden associated with adhering to the UK GDPR’s fair processing, transparency, and accountability requirements. It also aids in fulfilling the employee’s right to receive comprehensive information about the employer’s personal data collection and processing activities.

By providing this resource, the ICO is taking proactive steps to support smaller businesses to navigate the complexities of data protection regulations, hopefully making GDPR compliance more accessible and manageable for businesses with limited resources. For any relevant businesses who use this toolkit, it is advisable to review any generated notices carefully to ensure they accurately reflect your specific data processing activities and are compliant with current regulations.

UK government confirms plans to repeal Trade Union Act 2016, signalling shift in industrial relations policy

The UK government has recently announced its intention to repeal the Trade Union Act 2016, a move that aligns with commitments made in its ‘plan to make work pay’. This decision marks a shift back to the previous position on industrial relations and trade union rights.

The Trade Union Act 2016 introduced several restrictions on the organisation of lawful industrial action. These included:

• Extended notice periods for industrial action
• Higher ballot thresholds for strike action
• Limitations on picketing activities
• The expiration of industrial action mandates after six months.

The government has characterised this act as an infringement on workers’ rights.

The government intends to introduce legislation to repeal the act within the first 100 days of office, setting a target date of 12 October 2024. This move is part of a broader shift in Labour policy, which also includes the previously announced repeal of the Strikes (Minimum Service Levels) Act 2023 through the upcoming Employment Rights Bill.

These changes signify a potential rebalancing of power in industrial relations, potentially providing trade unions with greater flexibility in organising industrial action. Employers for whom this will be relevant should closely monitor these developments, as they may need to review and potential adjustment of industrial relations strategies and policies in the near future.

Government confirms full implementation of ‘plan to make work pay’

The UK government has officially confirmed its commitment to fully implement the “plan to make work pay”, signalling a comprehensive overhaul of employment rights and practices across England, Scotland, and Wales.

In response to a written question, Baroness Jones of Whitchurch, representing the Labour government, confirmed that ministers are actively working to identify the most effective way to deliver the commitments outlined in the plan. This multi-faceted approach includes both legislative and non-legislative measures.

A cornerstone of this implementation strategy is the Employment Rights Bill, which is scheduled to be introduced to parliament by 12 October. This bill is expected to be a primary vehicle for carrying out many of the plan’s proposals.

At the same time, the government is exploring avenues for implementation through secondary legislation and non-legislative routes. As an example of measures already in motion, Baroness Jones cited the recent change to the Low Pay Commission’s remit. This change instructs the commission to consider the cost of living in its recommendations and to work towards narrowing the gap between the National Living Wage and the National Minimum Wage.

This comprehensive approach underscores the government’s determination to make significant changes in employment law and practice. Employers should closely monitor these developments, as they are likely to have far-reaching implications for workplace policies, remuneration structures, and employee rights.

Police’s non-competitive promotion of minoritised ethnic sergeant was unlawful positive discrimination

An Employment Tribunal has recently ruled that a police force’s decision to promote a minoritised ethnic sergeant to a detective inspector role without a competitive process constitutes unlawful positive discrimination. This case highlights the great care employers must take regarding diversity initiatives, to avoid inadvertently falling foul of equality law in the workplace.

The case involved three white police officers who had expressed interest in an upcoming detective inspector vacancy. However, the position was filled by a minoritised ethnic sergeant without the role advertised or a competitive recruitment process, as part of the force’s initiative to fast-track minoritised ethnic officers from sergeant to inspector. The claimants brought direct race discrimination claims.

The police force argued that this appointment was part of their Positive Action Progression Program (PAPP) and fell under the general positive action provisions of Section 158 of the Equality Act 2010. They challenged it was not subject to the more stringent requirements of Section 159, which governs positive action in recruitment and promotion.

However, the tribunal rejected this argument, ruling that the appointment clearly fell within the remit of Section 159. The tribunal found that the claimants had been treated less favourably on racial grounds by being denied the opportunity to apply for or be considered for the role.

Key factors in the tribunal’s decision included:

1. The lack of necessity for this specific action, given the sergeant’s good chances of success on merit.
2. The absence of a proper balancing exercise to assess the proportionality of the action.
3. The failure to conduct an equality impact assessment.

The tribunal was particularly critical of what it termed a “cavalier approach” to equality considerations and expressed surprise at the lack of equality and diversity training among decision-makers.

This ruling underscores the importance of carefully navigating positive action initiatives within the legal framework of the Equality Act 2010. Employers should carry out regular reviews of any existing positive action programmes to ensure they are legally compliant and to avoid potential discrimination claims.