Back in February, we reported on the multitude of proposed employment law changes expected in 2023. Suzanna Ghazal, Solicitor, discusses the developments in relation to the Worker Protection (Amendment to Equality Act 2010) Bill following debate in the House of Lords, and the introduction of the Workers (Predictable Terms and Conditions) Act 2023.
Worker Protection (Amendment to Equality Act 2010) Bill
One proposed legislative change discussed in our article was the Worker Protection (Amendment to Equality Act 2010) Bill. You will remember we highlighted employer’s concerns around third party harassment and the positive duty on employers to take all reasonable steps to prevent sexual harassment of employees.
Initially, the two main provisions of the bill intended to:
Reintroduce protection against harassment of employees by third parties. This would have meant that employers would be potentially liable for any third-party harassment (such as from customers and clients) where the employer had not taken reasonably practicable steps to prevent it; and
Place a positive duty on employers to take all reasonable steps to prevent sexual harassment of its employees in the course of their work.
The provisions attracted controversy during discussions in parliament and when it reached the House of Lords, as the provisions were seen to curtail free speech and place significant burden and costs on employers.
The House of Lords has agreed to remove third party harassment provisions – meaning that there will be no changes on employer liability for harassment by third parties. The deletion of these provisions will be welcomed by many employers, particularly those in the hospitality sector where it would have been difficult to determine what would constitute ‘reasonable steps’ for those working at a pub or an event when one considers the working environment and potential clientele. Despite the amendment to the third party harassment provisions, prudent employers should still take steps to minimise the risk of harassment to employees and adequately deal with any complaints of harassment by third parties.
The new duty on employers to take ‘all reasonable steps to prevent sexual harassment’ has also been watered down. The bill will be amended so that there is no duty to take all reasonable steps, the duty is simply to take reasonable steps. It is not yet clear whether the removal of the word ‘all’ will have an effect on this provision, however employers should take steps to comply with the new positive duty by providing training to its staff and having stringent policies and procedures which deal with complaints of harassment. Employers who do not take reasonable steps to prevent sexual harassment could face enforcement action by the Equality and Human Rights Commission and employment tribunals would have the power to award an uplift to compensation for sexual harassment of up to 25%.
The bill is currently back at the House of Commons for consideration of amendments, however the amendments look likely to be accepted by the government. It is expected that the bill will receive Royal Assent later this year.
The Workers (Predictable Terms and Conditions) Act 2023 receives Royal Assent
The Workers (Predictable Terms and Conditions) Act 2023 received its Royal Assent on 18 September 2023. The Act will come into force around September 2024. It will amend the Employment Rights Act 1996 to give workers (such as those on zero-hour contracts, fixed term workers and agency workers) the right to request a predictable work pattern if they meet certain criteria.
Workers can make a request where there is a ‘lack of predictability’ as regards any part of the work pattern, the requested change relates to the working pattern and the purpose of the request is to get a more predictable pattern. Requests will be subject to a minimum service requirement. It has not yet been confirmed what the minimum service requirement is. However, it has been suggested that it will be 26 weeks. Requests will be limited to two applications in any 12-month period.
We expect that the Act will likely have the biggest impact on sectors where shift patterns are variable, such as the care sector. The term ‘lack of predictability’ has not been defined, however we know that fixed term contracts of 12 months or less will be presumed to lack predictability. The development will benefit a number of workers, as a predictable work pattern will enable them to better plan their working hours and plan around family commitments. However, employers may be thinking that this new founded right will cost them the flexibility they once enjoyed – particularly in sectors where work is based on shifts, rotas and last-minute planning. It is important to note that the Act will introduce a right for workers to request a predictable work pattern, it will not give workers a right to a predictable work pattern.
Similar to flexible working requests, employers will be able to refuse the request on statutory grounds.
A worker will be able to bring a claim relating to the employer’s procedural failings and/or if they suffer a detriment or are dismissed because they have made an application for a more predictable work pattern.
We are expecting ACAS to publish a code of practice to provide guidance for workers and businesses on how requests should be made and considered, and we will report when we hear of any further developments.
Do you need legal advice?
If you would like advice on the proposed legislative changes, or you would like training or a review of current policies and/or procedures in connection with the changes, please do not hesitate to contact the Employment law team on [email protected].
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.