Advice on Settlement Agreements Employees
Advice on Settlement Agreements EmployersAuthor: @deliver_els
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Sunset Clause in the Retained EU Law (Revocation and Reform) Bill Dropped
The UK Government may have scrapped the controversial ‘Sunset Clause’ but there are still plans to reform retained EU employment law that will have implications for UK Employers.
Background
Following the introduction of the European Union (Withdrawal) Act 2018, the legislation that allowed the UK to leave the EU, a new category of UK law was created – EU Retained Law – which preserved EU derived law that would continue to apply in the UK after Brexit, including large sections of UK employment law.
The Brexit Freedom Bill
In September 2022 the UK Government introduced the Retained EU Law (Revocation and Reform) Bill, the intended purpose of which was to repeal, amend or replace thousands of EU laws and regulations. Included in the Retained EU Law (Revocation and Reform) Bill was a “sunset” clause that would have potentially seen all retained direct EU legislation and EU-derived subordinate legislation implementing EU law (regulations) scrapped entirely on 31 December 2023 unless otherwise preserved, ending the principle of the supremacy of EU law, general principles of EU law, and directly effective EU rights.
The sunset clause was considered controversial and created legal uncertainty because it was unclear which EU laws would be retained, replaced or revoked.
Sunset Clause Scrapped
In early May 2023, the UK Government confirmed that it was scrapping the sunset clause in the Retained EU Law (Revocation and Reform) Bill and in its place, it has set out a list of 600 pieces of retained EU law that will be revoked on 31 December 2023, most of which appear to be either obsolete and unnecessary, burdensome and duplicative or irrelevant to the UK.
Reforms to Retained EU Employment Law
On 10 May 2023, the UK Government published a Policy Paper on Smarter Regulation to Grow the Economy and launched a Consultation on Retained EU Employment Law, namely reforms to the Working Time Regulations, Holiday Pay, and the Transfer of Undertakings (Protection of Employment) Regulations.
In its consultation paper, the UK Government has identified three key areas it believes could benefit from reform that it says would ensure they are fit for purpose for both businesses and workers.
Record keeping requirements under the Working Time Regulations
The UK Government is considering removing the requirement that records must be kept in relation to the right to a minimum daily rest period of 11 consecutive hours in each 24-hour period; the right to a minimum uninterrupted period of rest of 24 hours in each seven-day period; and the limit on the maximum weekly working time by introducing legislation to clarify that businesses do not have to keep a record of daily working hours of their workers.
Simplifying annual leave and holiday pay calculations in the Working Time Regulations.
The UK Government is considering combining the right under EU Working Time Directive to 4 weeks’ annual leave entitlement with the domestic right to an addition 1.6 weeks’ annual leave to create a single statutory entitlement of 5.6 weeks’ and introduce a standardised holiday pay calculation method across the single entitlement. They are also proposing to allow employers to pay “rolled-up” holiday pay, something that was deemed unlawful by the European Court of Justice.
Consultation requirements under the Transfer of Undertakings (Protection of Employment), or ‘TUPE’, Regulations.
The UK Government is considering removing the requirement to consult with employee representatives for businesses with fewer than 50 employees (currently 10) where the transfer affects less than 10 employees and instead allow employers to consult with employees directly.
Although the UK Government may have scrapped the controversial ‘Sunset Clause’, which would have potentially created a legislative black hole and significant uncertainty for employers, the above changes being proposed appear to make clear that the current UK Government is intent on reforming retained EU employment laws and this will continue to create uncertainty for UK employers.
We will continue to closely monitor the situation and track changes to EU employment law legislation to ensure we keep ahead of the regulatory changes that are almost certainly coming.
Do You Need Assistance?
The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers on their legal obligations to ensure compliance. If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.
HR Management Software
We are excited to announce the launch of ELS Secure-HRM, a multifunctional HR software solution that will save you time and money in managing your workforce, so you can focus more on your core business.
Key Developments in UK Employment Law in 2023
As we near the end of the first month of 2023, we summarise they key developments in Employment Law we expect to see during 2023.
New Rates for Statutory Employment Payments
On 28 November 2022, the Department of Work and Pension (DWP) published its annual rate increases for 2023/24. All of the new rates will take effect on or around the start of the tax year on 6 April 2023.
- Statutory maternity, adoption, paternity, shared parental pay will increase to £172.48 per week on 2nd April 2023 (up from £156.66).
- Statutory sick pay will increase to £109.40 per week on 6 April 2023 (up from £99.35).
- The minimum weekly amount an employee needs to earn to qualify for these will remain at £123.
New National Living Wage and National Minimum Wage Rates
Having accepted the Low Pay Commission’s proposed increases to the national living wage (NLW) and national minimum wage (NMW), the new rates from 1 April 2023 will be:
- Age 23 or over (NLW rate): £10.42 (up 9.7% from £9.50)
- Age 21 to 22: £10.18 (up 10.9% from £9.18)
- Age 18 to 20: £7.49 (up 9.7% from £6.83)
- Age 16 to 17: £5.28 (up 9.7% from £4.81)
- Apprentice rate: £5.28 (up 9.7% from £4.81
Retained EU Law (Revocation and Reform) Bill 2022-23
The intended purpose of the Bill is to repeal, amend or replace thousands of EU laws and regulations that were initially retained when the UK left the EU in January last year and will provide the UK Government with the means to update previously retained EU legislation via Parliament. Included in the Bill is a “sunset” provision that could potentially see all EU-derived subordinate legislation and retained direct EU legislation implementing EU law (regulations) scrapped entirely on 31 December 2023 unless otherwise preserved.
The introduction of the Bill could see changes to:
- The Working Time Regulations
- The Agency Workers Regulations
- The Part-time Workers Regulations
- The Fixed term Employees Regulations
- TUPE (but only insofar as it implements EU law)
- The Information & Consultation of Employees Regulations
- Various Health & Safety regulations
- The Maternity & Parental Leave Regulations
Trade unions and industrial action
The government is seeking to introduce measures to reduce the disruption caused by industrial action. The Transport Strikes (Minimum Service Levels) Bill 2022-23 was presented to Parliament in October 2022 and if passed, will require minimum service levels in transport services during industrial action (see Practice note, Transport Strikes (Minimum Service Levels) Bill). The government has suggested that it might extend the legislation to other services.
Employee data protection
The government has announced its intention to replace the UK GDPR with a British data protection system, which will be introduced by means of amending the Data Protection and Digital Information Bill.
Human Rights Act 1998
In June 2022, the government introduced the Bill of Rights Bill 2022-23, which aims to repeal the Human Rights Act 1998 and create a new domestic human rights framework around the European Convention of Human Rights (ECHR), to which the UK will remain a signatory. After being dropped by Liz Truss’s government, the Bill of Rights Bill is now reported to resume its passage through Parliament.
Employment Bill
It was previously announced that the Employment Bill would be the vehicle for introducing these long-awaited measures. However, in December 2022, the Business Secretary, Grant Shapps, confirmed that there is no Employment Bill “on the cards per se”. Instead, the government is supporting Private Members’ Bills that reflect some of the commitments that were expected to be included in the Employment Bill.
Potential legislative developments that were expected to be in the Employment Bill that are reflected in these Private Members’ Bills include:
- Flexible working
- New duty to prevent sexual harassment
- Extending redundancy protection for women and new parents
- Tipping, gratuities, cover and service charges
- Neonatal leave and pay
- Leave for unpaid carers
- Single enforcement body for the labour market
- Confidentiality and non-disclosure agreements
- Dismissal and re-engagement
We discussed some of these key developments in more detail previously in the following blog articles:
The Retained EU Law (Revocation and Reform) Bill Announced
New National Living Wage & National Minimum Wage Rates from 1 April 2023
UK Government Confirms Flexible Working Will Become a Day One Right
Do You Need Assistance?
The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers on their legal obligations to ensure compliance. If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.
Adverse Weather & Employment Law – Guidance For Employers
It pays to be fully prepared for whatever weather this winter may throw at you – whether its wind, rain, storms or snow and ice. Winter in the UK often brings its own set of workplace problems but making informed decisions will help avoid creating costly problems.
Impact of Poor Weather on Employers
The impact poor weather may have on Employers will be determined by the decisions they make, many of which may be based on issues completely out of their control, but those decisions and the way the issues they create are handled will ultimately determine the full legal / HR implications.
Key questions for Employers:
- What if an Employer decides to close the business temporarily due to poor weather conditions? Do staff still need to be paid?
- What if an Employer does open for business but staff can’t make it in because of the weather? Is this unauthorised absence? Should absent staff be paid?
- What if some staff make it in but other staff from the same area don’t, should they face disciplinary action?
Employer Initiated Closures
If an Employer decides to temporarily close their business due to extreme weather conditions they are effectively laying-off their staff, albeit temporarily. However, unless there is a contractual right to lay employees off without pay, or employees expressly consent to being laid off without pay, Employers are obliged to pay staff their normal pay for the duration of the lay-off.
Employee Initiated Absence
Employees are protected by a number of statutory rights, some of which may apply in instances of extreme weather where schools or childcare facilities are themselves suspended due to poor weather.
Employers should start with a full review of existing HR policies. Do you have an absence policy? Does it include an ‘adverse weather policy’? Having such a policy can help provide clarity when unpredictable weather causes challenges and can confirm what the company’s expectations are in terms of absence, what options are available to staff (eg. parental leave) and what the company’s pay arrangements in will be in these circumstances.
Employees have a right to time off for dependants and could invoke this right if schools or childcare provisions are cancelled due to adverse weather. Equally, qualifying parents have the right to take unpaid time off work to look after their children or make arrangements for their welfare. Effective staff absence and absence management polices as part of a thorough employee handbook containing critical HR policies is essential in acting as a point of reference when issues arise and can help make life less difficult and costly for Employers.
At Employment Law Services (ELS) we specialise is protecting businesses and helping them prevent problems by providing them with legally compliant contracts of employment and comprehensive Employee Handbooks tailored to meet their specific requirements.
How Can You Avoid Getting Caught Out?
- Contact Us – we will undertake full review of your current arrangements and provide you with our findings and recommendations.
- Ensure you have appropriate contracts should be drafted and issued to ensure the nature of the working relationship is clearly determined.
- Give us a call on 0800 612 4772 and we’ll help you to prevent problems and protect your business.
Office Closure During the Festive Period
Our offices will close for Christmas and New Year at 4:30pm on Thursday 22 December 2022 and shall reopen again at 9.00am on Monday 9 January 2023.
On behalf of the team here at Employment Law Services (ELS) LTD, we would like to wish all those celebrating Chanukkah (18 to 26 December) peace, love and joy during this Festival of Lights and to all those celebrating Christmas, may the magic of Christmas fill every corner of your heart and home with joy and laughter.
New Regulations Ban Exclusivity Clauses for Low-Income Workers
New regulations extending the ban on exclusivity clauses in employment contracts to low-income workers earning no more than the lower earnings limit came into force on 5 December 2022.
New Regulations Banning Exclusivity Clauses
The new regulations replicate the rights of zero-hours workers set out in section 27A of the Employment Rights Act 1996 and the Exclusivity Terms in Zero Hours Contracts (Redress) Regulations (SI 2015/2021) and make unenforceable exclusivity terms in an employment contract or other worker’s contract which is not a zero-hour contract and entitles the worker to be paid net average weekly wages that do not exceed the lower earnings limit (currently £123 a week).
In the same way as for zero hours contracts, exclusivity terms are defined as any contractual term which prohibits a worker from doing work or performing services under another contract or arrangement, or which prohibits a worker from doing so without their employer’s consent. The regulations specify how net average weekly wages are to be calculated.
Under the regulations, it is automatically unfair to dismiss an employee if the reason or principal reason for the dismissal is that the employee breached an exclusivity term, and there is no qualifying period of employment to bring this claim. In addition, workers are protected from detriment if they breach an exclusivity term in their contract.
Do You Need Assistance?
The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers on their legal obligations to ensure compliance. If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.