Key employment law updates | September 2023

Government launches two consultations on occupational health

The Government has recently launched two consultations on occupational health: "Occupational Health: Working Better" and "Tax Incentives for Occupational Health".

The consultations come against the backdrop of long-term sickness constituting the main reason people of working-age give for being economically inactive and only 45% of workers in Great Britain having access to Occupational Health (OH) services.

Occupational Health: Working Better

This consultation seeks views on proposals aimed at increasing employer use of Occupational Health Services. It focuses on the role of Government, occupational health providers and employers, in increasing OH coverage across the UK, within the broader context of enabling better workplace support to improve productivity and prevent ill-health related job loss.

More specifically, the consultation seeks views on establishing an agreement and partnership between Government, employers and OH providers to drive an increase in OH coverage in relation to:

• The introduction of a national "health at work" standard to help provide a baseline for quality OH provision.
• Best practice from other countries and other UK-based employer models that enable employers to provide support for their employees.
• Developing work and health workforce capacity through new service models, building the skills mix and diversity of the current workforce and partnering with the private sector to develop a long term sustainable.

Tax Incentives for Occupational Health

This second consultation discusses the case for tax incentives and specifically seeks views on providing further support through expanding the Benefit in Kind exemption for medical benefits, to encourage greater employer provision of OH services.

Responding to the consultations

The Government particularly welcomes views from employers, healthcare professionals, non-healthcare professionals and OH providers. Further information on the consultations and how to respond can be found at: Occupational Health: Working Better and Tax Incentives for Occupational Health.

The consultations close on 12 October 2023.

Information Commissioner's Office (ICO) publishes guidance for employers on handling their worker's health information

The guidance is aimed at employers to help them understand their data protection obligations under UK data protection law.

The guidance covers how UK data protection law applies to the processing of workers' health information and what the law requires employers to do, as well as good practice advice, in relation to some of the most common types of employment practices where workers' health information is processed, namely:

• How to handle sickness and injury records
• When using occupational health schemes
• When using medical examinations and drugs and alcohol testing
• When using genetic testing
• When carrying out health monitoring
• When workers' health information can be shared

The guidance can be found on the ICO's website.

Acas publishes updated guidance on absence management

Acas has updated its guidance for employees and employers on managing holiday entitlement, sickness absence and leave. The updated guidance can be found on Acas's website.

The guidance includes sections on recording and reducing sickness absence, including how an employer should record and measure sickness absence, how to record sickness absence, avoiding discrimination and data protection, and absence triggers, looking at absence policies that set automatic triggers to review absence. It provides guidance on how to use review points, absence reviews, avoiding discrimination and reasonable adjustments.

Charity Commission issues new guidance on charities and social media

Following a consultation earlier this year, the Charities Commission has finalised its guidance on the use of social media by charities.

There are a number of steps that trustees need to take such as having a social media policy in place, only using social media in a way which is consistent with the charity's purpose, and taking steps to manage legal risk in the use of social media especially when engaging in fundraising, campaigning or any political activity.

Social media policies must be shared with staff, volunteers and trustees and the guidance sets out a checklist to help create such a policy. The guidance also highlights the need for charities to have a plan of action in situations where a social media post may harm their reputation and deals with social media posts made by trustees, volunteers or employees in a personal capacity. There is often a difficult line to be drawn between social media posts which are the view of an individual which could in some way be linked to the charity. This should be given careful thought by trustees as well as a clear understanding as to how the charity is using social media.

If you would like more information on this please contact Lucy Gill, Andrew Mackie and Kathryn Evens.

Workers (Predictable Terms and Conditions) Act 2023 receives Royal Assent

The Act provides a statutory right for workers to request a predictable work pattern from their employer. Such a request could relate to the worker's hours of work, days of work or period of engagement. The measures are expected to come into force in September 2024.

There will be an obligation on the employer to deal with any such applications in a "reasonable manner". The employer must notify the worker of their decision within one month and may only reject the application if it considers that one or more of the grounds stated in the Act applies. These grounds include the burden of additional costs to the employer, a detrimental effect on the employer's ability to meet customer demand and insufficiency of work during the periods the worker proposes to work. If the employer grants the application, they must offer the new terms and conditions to the worker within two weeks.

A failure by an employer to comply with the Act may provide a worker with the right to present a complaint to an employment tribunal and could result in an award of compensation to be paid by the employer to the worker.

The Act places a limit on the number of applications a worker can make to their employer within any 12-month period of two applications.

Acas is producing a new Code of Practice to provide clear guidance to employers and employees on making and handling requests.

Worker Protection Bill amendments: third party harassment liabilities taken off the table and duty to prevent sexual harassment diminished

The Workers Protection (Amendment of Equality Act 2010) Bill continues to make its way through Parliament and has been significantly watered down in the process. Read our article for an update on the latest amendments.

Reminder: The Employment Relations (Flexible Working) Act 2023   

Just to remind you that The Employment Relations (Flexible Working) Act 2023 received Royal Assent in July 2023. We don't know yet when exactly the new laws will come into force via regulations – but read all about what it will mean in our previous update.