Is 2023 set to be a bustling year for HR, with the promise of a multitude of employment related changes? Perhaps. Last week MPs approved three highly anticipated Private Members’ Bills, sending them across to the House of Lords for further debate. So, what’s on the House of Lord’s agenda and what might it mean for HR; Emma O’Connor, Legal Director and Natalie Wood, Solicitor, report.
If passed, these respective Private Members’ Bills will give the power to the Secretary of State to be able to enact separate enabling Regulations. They do not mean that these new changes will be automatically enacted. So there could be a time delay between their passing (if they are) to when they are (possibly) brought into law. There is much detail still to be ironed out. However, below is a summary of what we do know to date:-
Protection from Redundancy (Pregnancy and Family Leave) Bill
Currently, under Regulation 10 of the Maternity and Paternity Leave Regulations 1999, where a woman is on maternity leave and their role is being made redundant, an employer would be required to offer that individual a suitable alternative role over other individuals who might also be at risk of redundancy. Currently there is no such mirror provision for pregnant women, although other protections are available to them under the Equality Act 2010. Similar protections also apply for employees on adoption and shared parental leave.
The purpose of the Protection from Redundancy (Pregnancy and Family Leave) Bill is to enhance redundancy protections which are already afforded during maternity leave and extend these to employees that are pregnant. Moreover, if passed, the protections would be extended for a period of time (thought to be 6 months, although we await the full details) from when an employee returns from maternity leave, adoption and/or shared parental leave. This could potentially have implications for redundancy programmes to which employers will need to be aware. Similarly, at what point is the employee protected as presumably there needs to be an element of “knowledge” on the part of the employer that the employee is pregnant. Also, will there be a minimum amount of leave that needs to be taken in order to qualify for protection – is someone who takes say a month off as shared parental leave (or less) afforded the same return to work protection as someone who take a whole year as adoption leave? Some details will need to be given here.
Worker Protection (Amendment of Equality Act 2010) Bill
Currently employers are liable for harassment which has been caused by their employees, unless they can show that they have taken all reasonable steps to prevent the harassment from occurring in the first place. The purpose of the Worker Protection (Amendment of Equality Act 2010) Bill is to place a positive duty on all employers to prevent employees from being harassed in the workplace. There will also be an accompanying ACAS Code of practice.
If passed, employers could be liable for the sexual harassment of an employee which has been caused by a third party. Some may remember the three-strike rule which was repealed in 2013, which saw employers being liable for harassment caused by third parties in circumstances where they were aware of two prior incidents of harassment. Unlike previous legislation, employers could be liable after just one incident…that is of course, unless they have taken all reasonable steps to prevent that harassment in the first instance.
This current proposal around third party harassment is giving cause for concern particularly from those in the events and hospitality sector as to what might constitute “reasonable steps” if one considers employees working in a pub or at an event when one considers the working environment and potential clientele.
Carer’s Leave Bill
Currently there is no dedicated statutory leave entitlement for individuals who work alongside their caring responsibilities.
The purpose of the Carer’s Leave Bill (which would seek to amend or insert a new provision in the Employment Rights Act 1996) is to make provision for employees with caring responsibilities to take unpaid leave.
If the Bill is passed, employees will be entitled to 5 days’ of unpaid leave per year as a day one right. Employees will benefit from employment protections that are currently associated with other types of familial leave and will be protected from dismissal and/or detriment when taking leave for their caring responsibilities.
There is still a lot that we do not know. We also do not know whether parliamentary time will allow such further legislation to be passed if/when these Private Member’s Bills are passed. The Bills are a framework and the details will need to be ironed out. Whilst a step in the right direction, could the devil be in the detail? Please keep a look out for further advice and discussion. However, with all challenges are there opportunities for employers to get ahead of the curve and think about how they might include such changes within their current suite of benefits.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.
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