July 3, 2023
This year we celebrate our 20th Anniversary, with a big thank you to all of you who have been with us on this incredible journey – We look forward to serving you for many years to come. However, we’ve put together a list of some of the latest Employment Law legislation and news that may affect your. business.
New Rights for Parents and Carers
Parents and carers are set to receive new employment protections. The new laws received royal assent on 24 May. Secondary legislation is required in order for the laws to come into force and this could take at least 12 months. There is no need, therefore, to take action yet. However, once enacted, your employment policies and procedures will almost certainly require updating.
Neonatal Care (Leave and Pay) Act 2023
Creates a new statutory right to leave and pay for working parents whose children are receiving or have received neonatal care. Parents will be eligible for up to 12 weeks of paid neonatal care leave so that they can spend more time with their baby. This is in addition to other leave and pay entitlements such as maternity and paternity.
The Protection from Redundancy (Pregnancy and Family Leave) Act 2023
Will afford greater protection to pregnant women and new parents in a redundancy situation by giving them the right to be offered (instead of merely the opportunity to apply for) a suitable alternative vacancy where one exists. This is the same protection that is currently afforded to women who are put at risk of redundancy while on maternity leave. It is expected that the protection will extend from when an employee informs her employer that she is pregnant until 18 months after the birth.
Careful consideration will need to be given in any redundancy situation, and we would strongly suggest that you contact us for advice before making any decisions.
Carers Leave Act 2023
Eligible employees will be able to take one week’s unpaid leave each year to enable them to provide or arrange care for a dependant with a long-term care need. This will apply from the first day of employment and employees will be protected from being dismissed or subjected to a detriment for exercising their right to this leave.
Non-compete Clauses to be Capped
The Government has recently published its response to the consultation paper on non-compete clauses in contracts of employment. They have decided against requiring businesses to pay for a non-compete period as this, “would apply a substantial direct cost to businesses… at a critical junction in our economic recovery”. They have also decided against a ban on non-compete clauses for fear that this could lead to unintended consequences such as a loss of investor confidence and a reluctance to invest in training employees. The Government has instead decided to cap the period of non-compete clauses to 3 months through legislation.
There will be no change to other post termination restrictions such as non-solicitation and non-dealing clauses. There will also be no change to confidentiality clauses; these are notoriously difficult to police which is why employers have traditionally sought to rely on the protection of non-compete clauses. The changes will only apply to employment and worker contracts not to non-competes in other types of contracts such as sale and purchase or partnership and LLP agreements.
The changes are some way off being implemented but it is worth starting to consider alternative ways of protecting your business particularly for new starters in senior or sensitive roles. This could include longer notice periods and clear garden leave provisions as well as maximizing the protection afforded by non-solicitation and non-dealing restrictions. With regard to existing employees, pay increases could be used to negotiate changes to the restrictions.
Those of you who are on the Premier Total Cover scheme will have insurance to cover the cost of seeking to enforce non-compete clauses and will shall be in touch to review your contracts
Annual Leave Changes Expected
There has been considerable discussion around holiday pay, the ability to pay ‘rolled up’ holiday pay, what needs to be included and the methods of calculating pay for atypical employees. Caselaw has been evolving at pace and now we have a situation where the calculations are almost Newtonian. It is expected that this is going to change, within the year and a fair chunk of EU caselaw and legislation will be removed to make way for new, clearer and simpler legislation. We will let you know in the normal way as soon as there is concrete information.
It seems that Businesses have not seen the last of Coronavirus
| In one recent case, the tribunal decided that a person, who was not furloughed in order to see if the position changed and there was still a job, had been unfairly dismissed. This case was widely reported at the time and it was expected to go to appeal. We now have the judgment from the Employment Appeal Tribunal and they are clear that there was no error in law and the original decision that the Claimant was unfairly dismissed will stand. The Judge was correct that a failure to use, or even consider, the Coronavirus Job Retention Scheme was the same as failing to consider any other options before making the Claimant redundant. As we know, redundancy must always be a last resort and all options must be considered before a person loses their job.|
However, telling lies to try to avoid going back to work in the office, did not help a Trade Union worker in her claim that she had been bullied and threatened in order to get her to work in the office, when she preferred to continue working from home – a subject we discussed in the last Newsletter. This persons constructive dismissal claim failed. It should be noted that other claims, perhaps where the claimants were not caught out in lies have succeeded in the employment tribunal and we will, no doubt, be seeing many more as these claims work their way through the system.