Key employment law updates | May 2023

New legislation passed to protect parents and carers in the workforce – 24 May 2023

On 24 May 2023, three bills received Royal Assent and have become law. The new legislation includes:

• The Neonatal Care (Leave and Pay) Act 2023, which makes provision for up to 12 weeks statutory leave and pay for employees whose children are admitted to neonatal care for at least 7 days. This leave is in addition to maternity and paternity leave.
• The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 - this legislation extends the redundancy protections that currently apply to employees on maternity, adoption and shared parental leave, to employees who are pregnant or who have recently returned to work from such leave.
• The Carer's Leave Act 2023 introduces an entitlement of up to five working days of unpaid leave for employees with long term caring responsibilities for a dependant, for the purposes of providing or arranging care for them. This right is a "day one" right and employees who exercise this right will be protected from dismissal or detriment as per the protection afforded to other statutory rights to paid/unpaid leave.

Secondary legislation will be released in due course to implement these new entitlements.

Whistleblowing: Government reviews the UK's current whistleblowing framework

The Government has recently launched a review of the UK’s whistleblowing framework and primarily the Public Interest Disclosure Act (PIDA). The review was initiated following a sharp increase in protected disclosures received by the Care Quality Commission and the Health and Safety Executive during the pandemic.

The review will gather evidence from whistle-blowers, employers, regulators and charities and will consider three key areas:

• Who is protected by whistle-blowing legislation.
• The availability of information and guidance for whistleblowing purposes (both publicly and that provided by employers).
• What have been the wider benefits and impacts of the whistleblowing framework on employers and others.
• How employers and prescribed persons respond to whistleblowing disclosures, including best practice.

The review also follows implementation by EU member states of the EU Whistleblowing Directive, which imposes more stringent obligations than those imposed by UK legislation.

What does this mean for employers?

This review may result in changes to the current whistleblowing regime and employer obligations such as:

• Expanding whistleblowing protection to all those in the workplace.
• Imposing an obligation on employers to respond to whistleblowers and investigate concerns raised.
• Greater access to justice for whistle-blowers.

There is also a possibility that UK legislation could be more closely aligned with the requirements of the EU Whistleblowing Directive.

Ethnicity pay reporting guidance published

Although still not mandatory, the Government has published guidance for employers who wish to voluntarily report on their ethnicity pay gaps. The guidance aims to develop a consistent, methodological approach to ethnicity pay reporting with a hope to spark meaningful change.

What does this guidance address?

The five-part guidance includes:

• Introduction and overview
• Understanding and reporting your data
• Collecting ethnicity data
• Preparing your payroll data
• Making your calculations

What is an ethnicity pay gap?

An ethnicity pay gap is described as a measure of the difference between ethnic groups' average earnings across an organisation or the labour market over a period of time, regardless of role or seniority.

The guidance on reporting follows a similar approach to gender pay reporting. However, ethnicity pay reporting is not a like-for-like comparison of two groups as gender pay reporting is; it requires employers to decide how to select and combine different ethnic groups to ensure the results are reliable, statistically accurate whilst protecting the privacy of individuals. Employers are encouraged to dedicate sufficient time and resources to ensure this is done correctly. Additional guidance can be found on the Government's website.

Next steps for employers

Although still not mandatory, some employers may see ethnicity pay reporting as the next step in their diversity and inclusion journey and Environmental Social and Governance (ESG) strategy. If this is the case, the guidance provides a helpful framework for how to approach the complexities of ethnicity pay gap reporting and how to achieve the accurate, consistent results that are required to make meaningful change, if required.

Inclusive Britain action plan

On 17 April 2023, the Government published guidance for employers on how to take positive action to help people with protected characteristics, overcome barriers to diversity and provide equal opportunities and representation in the work force. The guidance should be read alongside the EHRC's Statutory Code of Practice on Employment.

Employers wishing to take positive action measures should consider and document the following:

• Evidence of the disadvantage, particular need or disproportionately low levels of participation, as appropriate, and an analysis of the causes.
• Specific outcomes which the employer is aiming to achieve.
• Possible action to achieve those outcomes.
• An assessment of the proportionality of proposed action.
• Steps the employer decides to take to achieve these aims.
• Measurable indicators of progress towards those aims, set against a timetable.
• How they will consult with relevant groups.
• Review period

The Government recommends taking legal advice before deciding on a positive action programme. Please contact us if you would like to explore your options and be advised about the risks and opportunities this change presents.

Mental health in the workplace: New Acas guidance

Acas has issued new guidance relating to reasonable adjustments for disabilities related to mental health at work.

The guidance includes the following:

• Advice on how to respond to mental health conditions.
• Examples of possible reasonable adjustments.
• A process to follow when considering reasonable adjustments.
• A recommendation that employers have a reasonable adjustment policy.

The new guidance outlines the importance of treating mental health conditions with the same care as primarily physical conditions – mental health can affect a person's emotional, psychological, physical and social wellbeing. Making reasonable adjustments can boost recruitment success, retention and productivity whilst potentially reducing absence.

Practical steps

When considering whether to make reasonable adjustments in connection to mental health, employers should convene a meeting with affected workers to discuss potential adjustments and to agree a plan. Employers should also obtain occupational health advice and put in place a regular review.

Potential adjustments employers could consider making:

• Changing an individual’s working environment or working arrangements finding a new way to do something.
• Adapting the way the employer’s policies are applied.
• Providing additional support, including equipment or services.
• Preventative adjustments to support workers who are not disabled by reason of a mental health condition.

The guidance does not create any new legal obligations, but it is a helpful practical guide to supporting employees with mental health conditions in the workplace.

Success of the Aching Arms Workplace Bereavement Taster Session

Due to popular demand, on 25 April 2023, Foot Anstey (along with its sister brand, Enable Law) joined forces to collaborate with Leanne Turner, the CEO of the charity, Aching Arms.

Enable Law's Claire Stoneman and Leanne have worked together for many years, supporting each other personally and in their baby loss work. This relationship then led to a conversation that included Gemma Robinson in our Employment team around the current statutory bereavement laws and the training that Aching Arms have developed for employers about how to manage employees affected by baby loss.

There were many valuable insights provided by Leanne during the session and attendees came away with helpful ideas on how to acknowledge, understand and support its employees and colleagues who have been affected by baby loss. Leanne also provided details on their comprehensive training programmes for employers/managers on how to sensitively support staff and colleagues at such a difficult time. Aching Arms offer various programmes, both in the workplace or online, which can be tailored according to your business needs. For more information on the workplace bereavement training available and to make enquiries, please visit their website.