Key employment law updates | May 2024

The government has announced a consultation seeking views on proposals to clarify two elements of TUPE legislation so that:

1. It is made explicit that TUPE does not apply to limb (b) workers and applies to employees only.

A first instance employment tribunal decision had created uncertainty as to the scope of application of TUPE to workers. The consultation therefore proposes amending the definition of “employee” within TUPE to specifically state that limb (b) workers do not fall within the scope of protection of TUPE.

2. Where a business or service transfers to multiple buyers or service providers, TUPE will require that the whole (not part) of an employee’s role transfers to a single employer (rather than having their employment split between multiple buyers or service providers).

The consultation states that this creates a risk where employees are required to work between multiple sites and also regarding the division of employees’ terms and conditions between multiple employers. It is not clear how this proposal would practically be implemented.

The Equality and Human Rights Commission intends to open a six-week consultation in early summer on its revisions to its technical guidance on Sexual harassment and harassment at work in order to reflect the changes that will be introduced by the Worker Protection (Amendment of Equality Act 2010) Act 2023 (Act), which is due to come into force on 26 October 2024. The new legislation:

• Introduces a new mandatory duty on employers to take reasonable steps to prevent sexual harassment of their employees.
• Gives employment tribunals a new power to uplift an employee’s compensation by up to 25% where an employer has breached that duty.

The final guidance is due to be published in September 2024 and should help to clarify the sorts of measures employers should implement in order to meet the mandatory duty. This is likely to include clear policies, significant training for staff and managers, having workplace champions, conducting regular surveys and having multiple methods for reporting concerns.

The report found that more organisations are focusing on neuroinclusion, with an increase in employers having neuroinclusion strategies and adapting their recruitment practices for neurodivergent applicants as compared to the previous year.

However, it also found that 50% of individual respondents had been off work during 2023 due to neurodivergent-related challenges. More than 33% of neurodivergent workers had not received any guidance from their employer and a 20% were still waiting for adjustments to be made.

The government says that its Green Paper is aimed at addressing spiralling costs of the disability benefits system and ensuring that it is working to support those who need it most. The proposals are centred on Personal Independent Payments and propose changing the eligibility criteria, removing the assessment process for specific health conditions or disability and looking at vouchers or one-off grants as an alternative to ongoing cash support.

This follows the Transforming support: the health and disability White Paper published in April which introduced a consultation on proposals to remove responsibility for issuing fit notes from GPs and grant this to specialist work and health professionals, as part of a strategy to make fit notes harder to obtain.

Volunteers and interns are not explicitly covered by discrimination law and will, therefore, only be protected if they are in “employment” for the purposes of the Equality Act 2010 (which broadly means being a worker or an employee).

Angela Rayner (Deputy Leader of the Labour Party), announced at the Chartered Management Institute women’s conference that Labour would legislate to protect interns and volunteers against sexual harassment. No detail has been provided as to how exactly this would be achieved.