Employment law update: laws on the horizon – May 2023

The ever-changing nature of UK employment law can make it difficult for both employer and employee alike to keep on top of the duties owed to members of staff in the workplace.

Several bills are currently making their way through Parliament which have the potential to change the obligations that employers owe to their staff going forward.

Below, we have summarised three of these bills for the purposes of providing you, whether in your capacity as an employer or a worker, with a head-start on important employment law changes on the horizon.

‘Zero hours’ workers to be given right to request predictable working patterns 

The Workers (Predictable Terms and Conditions) Bill, which received support by the government in February of this year, aims to provide workers subject to ‘zero hours’ contracts more predictability around their working patterns.

‘Zero hours’ contracts, also known as ‘casual work’ contracts, are working arrangements that offer no guarantee of any minimum hours of work. Instead, individuals are offered shifts as required by their employer and have the option to accept or refuse those shifts once proposed.

Although such contracts provide individuals with the flexibility to work as they choose outside of prescribed hours of work, they have been criticised for their ‘one-sided flexibility’ as many workers effectively remain ‘on call’ waiting for potential shifts, unable to carry on with their normal day and without any certainty as to income being provided in return.

The new bill therefore attempts to address these criticisms by allowing workers who lack certainty in their hours of work, or who are subject to a fixed term contract for less than 12 months, to make a formal application to their employer requesting a change in their working patterns to a more predictable schedule.

Although the bill will likely be welcomed by those working under zero hours contracts, in its current form it will only allow individuals to make a request after having worked for their employer for 26 weeks and requests will be limited to two a year. Additionally, employers will have the right to refuse requests on certain grounds such as to meet staffing or costing requirements of the business.

Employers to be held liable for third-party harassment of their staff

Currently working its way through the House of Lords, the Worker Protection (Amendment of Equality Act 2010) Bill proposes a reintroduction of rules previously repealed in 2013 that held employers liable for harassment of their staff by third parties.

Under the current law, employers are held to be vicariously liable for acts committed by members of staff in the course of their employment. For example, if one worker is racially abused by another in the course of their work, the employer can be held to be vicariously liable unless they can show that they took all reasonable steps to prevent the discrimination.

The new bill therefore attempts to extend this liability to make employers liable for harassment of staff by third parties such as customers or members of the public. For example, if a shop floor worker at a supermarket is harassed by a customer, the employer could be held to be vicariously liable for the harassment.

As it is currently drafted, the bill will hold an employer liable even in circumstances where there have been no previous incidents of harassment, meaning employers could find themselves to be liable with no prior warning of a risk of harassment to their staff. Employers will however, still have the defence available that they took all reasonable steps in the circumstances to prevent their staff from being harassed.

The bill also enforces a positive duty on employers to take all reasonable steps to prevent sexual harassment against their staff, with an uplift in compensation of up to 25% for staff members who have been the victim of sexual harassment.

The Government Equalities Office is currently in the process of putting together a statutory code of practice on sexual harassment and harassment, with accompanying guidance, to set out of examples of how employers can help prevent third-party harassment.

Clarification as to UK employee rights after repeal of EU law

On 6 April, the Minister for Women & Equalities published a response to the Chair of the Women and Equalities Committee clarifying the effect of the Retained EU Law (Revocation and Reform) Bill on employment and equality rights in the UK.

The bill, which was introduced in September 2022, will enable the government to amend, repeal and replace retained EU law more easily, ending its ‘special status’ in the UK. The default position is that EU-derived rights and general principles of EU law will be removed on a ‘sunset date’ at the end of 2023, whilst other laws which have not been expressly revoked will be ‘assimilated’ into UK law with lowered status.

The bill has come under fire from some commentators who argue that it allows government ministers to let large swathes of law to fall away without parliamentary scrutiny, representing a rushed and undemocratic process. Employment law has been highlighted amongst others as a particular area of concern where it is feared that the bill will lead to a lowering of regulatory standards.

In line with these concerns, Caroline Nokes MP published a letter in January of this year asking the government to confirm the level of progress that has been made in identifying the EU law relating to equality rights which is due to be revoked on the ‘sunset date’. She further asked  how the government will ensure that the bill will not affect the UK’s compliance with international obligations relating to equality.

In response, the Minister for Women & Equalities confirmed that the bill would not make amendments to the Equality Act 2010, nor does the government intend it to repeal maternity rights or undermine individuals’ human rights. The response also claimed that government departments would carefully determine which EU laws should be preserved with input from relevant experts and would not abolish law for the sake of it.

Caroline Nokes MP has published a follow-up letter on 20 April, highlighting that the government are still yet to specify which equality rights are set to be revoked on the ‘sunset date’ and has requested disclosure of the steps being taken by government departments to ensure that they remain aware and complicit with international obligations.

Therefore, although a degree of clarity has been provided, ambiguity still remains as to what the UK employment law landscape will look like after the ‘sunset date’.