Our 2024 Employment Law seminar speakers have listed the main takeaways and discussion points from their talks.

Tania Goodman, Partner and Head of Employment – Employment Rights Bill

Considered one of the most significant reforms of employment rights in a generation or two, the Labour Government’s “Employment Rights Bill” was introduced on 10 October 2024. The bill is due to go through a lengthy consultation process throughout 2025, with most of the proposed reforms taking effect in 2026. We don’t have all the details yet, but we will consider some of the likely key changes.

Day one right to claim unfair dismissal

Under current law, employers are generally able to dismiss an employee within the first two years of employment without a potentially fair reason and without following a formal process. There are exceptions such as those claiming unlawful discrimination or whistleblowers.

What are the proposed changes?

The government plans to remove the existing two-year qualifying period for an employee to bring an unfair dismissal claim against their employer, thereby ensuring that all employees have a day-one right to protection from unfair dismissal.

With a view to making it easier for employers to assess new hires, the government also proposes a maximum probation period, probably with a maximum duration of nine months, during which it might be easier to dismiss but it would still have to be for a fair reason.

What should employers be doing now?

• Introduce more thorough recruitment processes to ensure the people they employ are the best possible fit.
• Establish processes throughout the probation period to make it easier for managers to decide whether to pass the probation periods of new employees;
• Train line managers on how to assess, monitor and document performance during probation; and
• Review existing capability and disciplinary policies and procedures to see if they are fit for purpose when the new legislation comes into force.

Are there any workarounds?

The following may enable some employers to mitigate the effect of the new legislation:

• Providing temporary contracts to employees, with fixed terms.
• Hiring agency workers.
• Using settlement agreements to avoid costly and time-consuming litigation arising from unfair dismissal claims.

Dismissal and Re-engagement aka ‘Fire & Rehire’

Currently, if an employer wishes to make changes to an employee’s contract, it will first need to consult with the employee. If the employee consents to the proposed variation/s, the employer can amend the contract accordingly. In some circumstances, however, if the variation cannot be mutually agreed, as a last resort, the employer can serve contractual notice to terminate the existing contract and at the end of that period, offer to re-engage the employee on the new terms.

What are the proposed changes?

The Employment Rights Bill will restrict the ability of employers to use this practice. Specifically, if employment is terminated because an employee refuses to agree to a variation of their contract, the dismissal will be deemed automatically unfair.

There is a narrow exception to this, where the employer is in serious financial difficulties and the contractual variation is deemed necessary to prevent the business from collapsing.

Are there any workarounds?

Employers should consider the following:

• Using staff handbooks (as opposed to the contract) to set out non contractual policies, that can be varied unilaterally.
• Using incentives such as pay rises and promotion (where appropriate) to encourage employees to agree to variations to their contract.
• Incorporating express variation clauses into employment contracts now if they are not there already.
• Making any other overdue changes to contracts before the new law comes into effect.

Sinead Kelly, Senior Associate  – Employment Rights Bill

Flexible Working Requests:

Requests for flexible working are made by individual employees to make a permanent change to their contract of employment. Such requests could be to reduce an employee’s working hours or days, to work from home, or to compress their working hours.

In April 2024, the following changes regarding an employee’s right to make flexible working requests came into force:

• Employees have a day-one right to make flexible working requests.
• Employees can make two requests per year.
• Employers have a duty to consult with employees before refusing a request.
• Employers have two months to provide their final response.

Employers are required to deal with requests in a ‘reasonable manner’ and the guidance on what is considered to be reasonable is set out in a new Acas Code of Practice.

Proposed changes under the Employment Rights Bill:

Whilst employers already have to deal with requests in a reasonable manner, once the new legislation comes into force, if any employer refuses a request, their decision to do so must also be reasonable. Under the Bill, it must be reasonable for the employer to refuse the request based on one or more of eight specific business reasons which are already set out in legislation as follows:

• The burden of additional costs;
• Detrimental effect on ability to meet customer demand;
• Inability to re-organise work among existing staff;
• Inability to recruit additional staff;
• Detrimental impact on quality;
• Detrimental impact on performance;
• Insufficiency of work during the periods the employee proposes to work; and
• Planned structural changes.

There is also a new duty on employers to explain the grounds for refusal and why it is considered to be reasonable.

What can employers do to prepare:

• Update policies and staff handbooks to reflect the changes from April 2024 including in relation to flexible working (and other areas including paternity leave and carer’s leave).
• Make sure HR teams and managers who handle flexible working requests receive appropriate training and are aware of the correct process they need to follow.

Right to Disconnect from work

What is it?

An employee’s right to switch off from work outside of their normal working hours. The idea behind the right to disconnect is to combat the ‘always on’ culture that has become more prevalent with flexible and hybrid working arrangements, and which can lead to reduced productivity.

What will it look like?

It will be set out in a new Statutory Code of Practice and will likely be based on the models implemented by Ireland and Belgium. There is unlikely to be a specific right for employees to bring a tribunal claim based solely on an employer’s failure to comply, however, employees who have a successful connected tribunal claim, could be entitled to a potential uplift in compensation if they are regularly contacted outside of their normal working hours. There could be some exceptions, for example for smaller business or if an employee is contacted in relation to an urgent matter, however, we do not yet know the exact detail.

Consultation on the Code is expected to take place next year, and so we are unlikely to see any significant change for a year or two.

What can employers do to prepare?

• Ascertain which employees are regularly working outside of their normal working hours and why.
• Clarify expectations around working hours.
• Review any home working or hybrid working policies that you have in place.
• Consider steps to encourage work/life balance.

Tom Herbert, Associate – The New Duty: Preventing Sexual Harassment

Background

From 26 October 2024, The Worker Protection (Amendment of Equality Act 2010) Act 2023 introduces a new proactive duty on employers to take reasonable steps to prevent sexual harassment in the workplace.

When does it apply?

It applies to sexual harassment only and not where other forms of harassment are alleged (for example, harassment related to disability, age or religion or belief). It also covers sexual harassment by third parties.

What should employers be doing?

Employers should do all they would do to make available an ‘all reasonable steps’ defence in a harassment claim. The European Human Rights Commission (EHRC) has produced the following four-stage assessment by way of guidance for employers:

• Consider the risks of sexual harassment in the workplace.
• Consider what steps could be taken to reduce or remove that risk.
• Consider which of those steps it would be reasonable to take, bearing in mind time, cost and potential disruption caused by taking that step. Factors like size and nature of workplace are relevant.
• Implement any reasonable steps identified.

If an employer breaches its duty, it may expose itself to the following risks:

• The EHRC has enforcement powers to investigate non-compliance, to issue unlawful act notices and to prepare an action plan to remedy any breach.
• If an employer loses a sexual harassment claim, the tribunal can uplift compensation by up to 25% if it finds that it has failed to take reasonable steps to prevent sexual harassment.

The key considerations for employers in order to comply with the duty are: (1) policies, (2) training and (3) culture:

• Policies

Employers should develop robust anti-harassment and bullying, and equality and diversity policies. A good policy will set out what an employer means by key terms and the workplace’s approach to them, how the business defines bullying and harassment, how it can be reported and what the business will do with any complaints it receives.

Employers should have the following in place:

• a grievance policy setting out how employees can raise issues in the workplace;
• a disciplinary policy that makes it clear that harassment is gross misconduct; and
• a social media policy that sets out acceptable communications between colleagues on social media.

Employers should also conduct regular reviews of all relevant policies and keep evidence that they have made all employees aware of the policies and their implications.

• Training

Employers should tailor their training to their specific operational context and their own harassment ‘risk areas’. Training should include workplace-specific scenarios that gives clear advice to employees on how to deal with internal and third-party issues.

Additionally, managers and supervisors should receive specific training on handling harassment complaints and on handling (and role-modelling) appropriate behaviour generally. Managers should familiarise themselves with the signs and symptoms of victims, which may include increased time off work, refusal to work with certain colleagues, changes in behaviour and reduced productivity and engagement. Finally, managers should be trained to listen effectively and empathetically to actually ‘ask the question’ in the first place to bring an employee’s experience out of the shadows.

• Culture

The first questions for an employer to consider are:

• What is the current workplace culture?
• Does it discourage harassment?

Employers should conduct a risk assessment to investigate the extent of the potential problem and identify areas of risk. They should also conduct reviews of past incidents and their outcomes to identify patterns or recurring issues.

The preventative duty, and all measures taken to comply with it, are not one-off steps but should be ongoing and regularly reviewed. Employers need to monitor workplace conditions and employee feedback to detect new risks or assess the effectiveness of implemented measures.

Charles Avens, Partner and Head of Immigration – Immigration Update

A number of key visa changes have come into effect in 2024.

Changes to Skilled Worker visas:

• The income salary threshold for sponsoring a Skilled Worker visa applicant rose from £26,200 to £38,700 or the ‘going rate’ for the relevant occupation, whichever is higher.
• The manner of calculation of each occupation’s ‘going rate’ has also been changed, resulting in higher ‘going rates’ across occupations.
• The list of shortage jobs attracting a reduced ‘going rate’ has been significantly shortened.

Changes to Spouse/Partner visas:

• The income salary threshold for a British national or person with settled status in the UK sponsoring their spouse/partner for a visa has increased significantly from £18,600 to £29,000.
• The threshold is set for two further rises: to £34,500 in late 2024; and to £38,700 in early 2025 although specific dates are yet to be set.

Changes to Standard Visitor visas:

• The range of permitted activities for Standard Visitor visa holders has been widened to include working remotely in the UK, so long as such remote work is not the primary purpose of the visit.

There have also been two new schemes brought in by HM Visas and Immigration:

eVisas:

• From 1 January 2025, eVisas will replace Biometric Residence Permits (BRPs), Biometric Residence Cards (BRCs) as well as vignette stickers and visa stamps in passports.
• The above types of immigration status evidence will no longer be valid and anyone who currently relies on any of them to prove their immigration status must switch to an eVisa as soon as possible and in any event before 1 January 2025.
• eVisas will be linked to the passport of the holder; no other documents will need to be carried when travelling to the UK.

Electronic Travel Authorisation (ETA):

• By 2 April 2025, all non-visa nationals, that is all those who do not currently require a visa to visit the UK, will be required to obtain an ETA in order to enter the country.
• An ETA will be linked to its holder’s passport, cost £10 and remain valid for 2 years or until the expiry of its holder’s passport, whichever is sooner.

For any follow-up questions, do not hesitate to contact our Employment team or Immigration lawyers or visit our Employment Lawyers page.