Key employment law updates | February 2024

Government publishes consultation response and revised draft Code of Practice on Dismissal and Re-engagement

The government published a consultation in January 2023 on a draft Code of Practice on Dismissal and Re-engagement (the Code), which sets out how employers should act when seeking to change employment terms and conditions, if the employer envisages possibly having to dismiss and re-engage. The consultation response (published on 19 February 2024) details the amendments that have been made to the Code following the consultation responses received.

The Code seeks to ensure dismissal and re-engagement is only used as a last resort and includes a requirement for employers to consult with employees and explore alternative options, without raising the prospect of dismissal unreasonably early and/or using the threat of dismissal as a negotiating tactic (to put undue pressure on employees in circumstances where the employer is not actually envisaging dismissal).

Although the Code will not impose any legal obligations on employers, employment tribunals will be required to take it into account when considering relevant cases and will have the power to increase compensation by up to 25% if an employer has unreasonably failed to comply with the Code.

The Code will now be laid before Parliament for approval, subject to which a commencement order will then bring the Code into effect - we will update you as and when we have further information as to when this will be.

Technical consultation closes on draft legislation for off-payroll working (IR35): calculating PAYE liabilities in cases of non-compliance

The government's four-week consultation on the technical detail of the draft Income Tax (Pay As You Earn) (Amendment) Regulations 2024 has now closed.

The draft legislation aims to deal with the over-collection scenario that arises when a business incorrectly determines its off-payroll worker to be self-employed for tax purposes, when they should have been treated as an employee.

The draft legislation allows HMRC to set-off any tax and NICs already paid by a worker and their intermediary against the deemed employer's Pay As You Earn (PAYE) liability. It also sets out the conditions under which this can apply, the mechanics of the recovery and the appeal rights associated with it. The government intends for the legislative change to be effective from 6 April 2024.

Responses to the consultation are now being reviewed and the draft regulations revised accordingly before they are laid before Parliament.

EHRC publishes guidance for employers on menopause in the workplace

On 22 February 2024, the Equality and Human Rights Commission has published guidance for employers on menopause in the workplace, which seeks to assist employers in understanding their legal obligations in relation to supporting workers experiencing menopausal & perimenopausal symptoms.

As well as summarising the various symptoms and the impact such symptoms can have on a worker (including decreased concentration, increased stress, reduced patience and feeling less physically able), the guidance provides practical advice in terms of implementing possible adjustments to support workers and having open discussions with workers regarding the menopause and the support they need.

This is an increasingly prevalent issue and, with previous research highlighting that 1 in 10 employees employed during their menopause left work as a result of their menopausal symptoms, it is one that employers should be engaging with to ensure they both attract and retain key talent.

Bright Horizons publishes Modern Families Index 2024 Report

Bright Horizons has published its annual Modern Families Index Report for 2024. The report is based on a survey of 3,000 working parents with at least one child aged 0-17 years, randomly selected from across all UK regions and industry sectors.

Key findings from the report include:

• The risk of employees leaving their employer and seeking new employment has increased from last year's report, with over two fifths (42%) of respondents likely to look for new employment in the next twelve months. After pay, seeking better support for family life was the highest reason for seeking new work.
• Childcare is needed to support career progression. Over 3 in 4 (75%) of respondents would need to carefully consider their childcare options before a promotion or new job.
• The top 5 benefits and services employees would look for in a good employer for working families were:

1. Benefits that help with the cost of living
2. Choice in benefits
3. Enhanced parental/dependent leave
4. Employer-subsidised regular childcare
5. Employer subsidised back-up or emergency care

CIPD publishes guidance for employers on supporting employees with terminal illness and long-term health conditions in the workplace

The guidance on supporting employees with terminal illness provides practical strategies on how to create a supportive culture and people management framework for employees with a terminal diagnosis.

The guidance on supporting employees with long-term health conditions provides information on effectively managing an employee with a long-term health condition or illness and emphasises employers fostering a compassionate culture and empowering people to take steps to proactively manage their health.

50 Plus Choices Employer Taskforce report makes recommendations to employers and government to aid retention, retraining and recruitment of workers over 50

The report explores what flexible working means for the over 50s and assesses the benefits for individuals and organisations. The report and its recommendations can be accessed here.

Now:Pensions Gender Pensions Gap Report 2024 finds that women need to work an extra 19 years to retire with the same pension amount as men

Now:Pensions is a UK workplace pension provider. The report is based on research carried out in partnership with the Pensions Policy Institute (PPI) in October 2023. It considers the causes of the gender pensions gap and includes policy recommendations for helping to close the gap.

Labour party proposes extension of equal pay claims and a right to claim "dual discrimination"

The Labour party has announced proposals for a Race Equality Act to enable black, Asian and minority ethnic workers and disabled workers to be able to make an equal pay claim in the same way as equal pay claims based on sex.

They have also proposed a right for an individual to claim "dual discrimination" i.e. where an individual has been discriminated against because of having two protected characteristics, such as because they are an Indian woman.

The proposed legislation would follow consultations with business groups and unions. Full details are yet to be published.