Keeping up to date

These new laws (including the rolled-up holiday pay changes) will likely come into force on 01 January 2024. Here’s what you need to know:

Rolled-up holiday pay

Rolling up holiday pay (12.07% of pay) will be lawful for part-year workers and individuals working irregular hours.

What needs to be included in holiday pay

Holiday pay must include commission and other payments (such as overtime payments). This means holiday pay will become more expensive for those not currently including those elements.

Record-keeping requirements

Additional working-time record-keeping requirements will be removed. They currently state that working hours and rest records must be kept for all – even those who work regular hours.

TUPE consultation

You’ll be able to consult with employees directly rather than through representatives when there is a small TUPE transfer (fewer than 10 employees), or the business undergoing any size of TUPE transfer has fewer than 50 employees.

EU case law

EU case law is being enshrined into UK law so that:

• All statutory leave can be carried over to the following year if the reason the employee didn’t take it was because they were on family-related leave
• Four weeks’ leave (the statutory regulation 13 leave) can be carried over for up to 18 months where the worker can’t take it due to sickness or because they’ve not been given the opportunity to take it (or haven’t been reminded that any untaken leave will be lost).

Video – Stefan Mars (Head of Legal) has recorded a 30-minute update summarising all of the new laws coming into force and how to deal with them practically – available to access here later this week.

Summary – we’re producing a one-page summary as a reference tool to remind you about the changes – you’ll receive an email to download directly.

Diagnostic – we’re producing a diagnostic tool so you can work out whether the change in holiday laws will affect you – you’ll receive an email to access the tool.

Documents – we’re updating our documents to ensure the changes are all in place on the date of the legal change. If you subscribe to Intelligent Employment you’ll receive notification by email. If you don’t currently access the service and want help with the changes, get in touch here.

Employees already have a right not to suffer sexual harassment at work. This Act introduces a proactive duty on employers to take reasonable steps to prevent it from happening in the first place. What will this mean in practice?

What are ‘reasonable steps’

We’ll need a Statutory Code of Practice from the EHRC for guidance on what constitutes ‘reasonable steps’ but it’s safe to assume that training and appropriate policies and reporting procedures will be high on the list.

Tribunals are already keen to call out ‘tick box’ and ‘stale’ training in this area, so ensuring regular, high-quality training is paramount. We can help – get in touch.

Compensation uplift

A breach of this new duty won’t give rise to separate claims, but, it will give tribunals the power to apply an uplift of up to 25% on any compensation awarded if it finds an employee has been sexually harassed at work and the employer has not taken reasonable steps to prevent it from happening.

Compensation for sexual harassment claims is uncapped so this could have a significant financial impact.

No third-party harassment

The Act was expected to introduce a duty on employers to protect employees from third-party harassment (by customers and clients, for example) but this has been removed and will not come into force.

Timescales

The Act is expected to come into force in 12 months.

Creating greater awareness, education and understanding around neurodiverse conditions will help foster more inclusive practices and help your managers support individuals appropriately – and avoid litigation. Here’s what you need to be aware of:

Training – the importance of educating managers and teams on neurodiverse conditions was highlighted in this case where an employee was successful in claiming disability-related harassment. Comments were made by the appeal officer accusing her of deliberately “masking” her autism – masking symptoms is a common practice amongst autistic individuals.

Medical support – the above case also highlighted the importance of obtaining occupational health or medical guidance on an individual’s neurodiverse condition. In this instance, it would have provided the employer with a clearer picture of the likelihood of recurring behaviour related to her condition and the risks associated with continuing her employment (she worked in a care setting with vulnerable children).

Reason for conduct – this case shows that a tribunal was able to conclude that the effects of an individual’s disability (dyslexia and Asperger’s Syndrome) did not play any part in the conduct giving rise to a disciplinary process. The individual had been aggressive and disruptive to colleagues and argued this was a result of his neurodiverse condition. The tribunal disagreed and said it was a result of a “short temper” rather than his disability.

Hidden conditions – as discussed earlier in this series, many neurodiverse conditions are hidden or remain undiagnosed. Carefully understanding the root cause and reasons behind any performance or conduct issues needs to be approached responsibly to reduce potential discrimination risks and provide the necessary support.

Individual needs will be just that, individual. Supporting neurodiversity won’t be ‘one-size-fits-all’. Here are some of our suggestions on changes to consider to support neurodiverse colleagues:

Inclusive culture – introducing a policy championing neurodiversity is a great way to promote neuro-inclusion, encourage open conversations, and raise awareness of the support you have available. Small practical steps such as providing agendas and follow-up emails/actions for all meetings can help neurodiverse individuals process information at their own pace.

Support plans – if an individual shares that they have a neurodiverse condition, discuss with them whether it’s appropriate to obtain expert medical opinion to help build a personalised plan supporting their specific needs.

Reduce sensory overload – audit your workplace for potential triggers; noise, lighting, background colours (to name a few) and look at how you can address them wholesale to avoid singling out neurodiverse individuals (and creating potential discrimination risks).

Flexible working – discuss with the individual what type of work, tasks and routines might work best for them and help them manage their condition. Discuss varying schedules and flexible working arrangements (where possible) to help set them up for success. Remember that needs may develop over time so review regularly and be open to change.

Mentoring – consider whether individuals may want or be open to coaching or mentoring for any personal development areas they’d like help with (such as organisation or time management).

Notice – if you have the contractual right you could place the individual on garden leave or pay them in lieu of notice. Alternatively, you could ask them to serve out their notice.

Redundancy pay – this is based on the individual’s length of service on the last day of their employment (the government calculator is a useful tool). Don’t forget that if you have a redundancy policy it may require you to pay amounts greater than the statutory redundancy payment.

Holiday – employees are entitled to holiday pay for accrued untaken leave when they depart. This can be paid as a lump sum or with appropriate notice you can require them to use their remaining holiday during their notice period.

Outplacement – a great way of reducing the possibility of litigation and creating a positive end to employment. The individual secures CV writing skills, support with job search, coaching and interview skills training. Get in touch if you’d like to find out more.

But with the right tools, knowledge and awareness, managers can confidently approach conversations about neurodiversity and provide colleagues with the support they need. Here are some of our tips:

Choose a setting – find a private, neutral space (outside the workplace if needed) free from interruptions and distractions, and clear your diary to make time so you don’t appear rushed. Keep your body language open and non-confrontational – remember that some neurodivergent individuals may find it difficult to read ‘typical’ social cues.

What to say – ensure you’re able to actively listen to what the individual is sharing. Ask open questions to encourage discussion and avoid making assumptions or comparisons with your own experiences (unless you have the same condition, of course). Following a clear agenda for the conversation will help to keep you on track. We have one in our toolkit.

Objectivity – be aware of their feelings and experiences, even if they differ from yours. Avoid your own expectations entering the conversation of how they could be dealing with their neurodiversity.

Support rather than solutions – be knowledgeable about sources of support that are available (EAP, charities etc.) and know who to signpost them to if needed. Encourage individuals to share what might help them with their neurodiversity instead of jumping to solutions that may not be appropriate.

Keep an open dialogue – agree and diary when you’re next going to check in, and agree on what they may want to share with their team about any changes being made. If an individual is off sick, stay in touch and carry out a return-to-work meeting when they return.

Record – keep a written record and notes of conversations (including dates, times and what was discussed). An accurate paper trail is vital if you need to rely on your records in the future.

Employment tribunal statistics

2022/23 costs and compensation:

• Disability discrimination claims received the largest average award (£45,000) compared to other discrimination claims
• The highest maximum award was £1,770,000 for disability discrimination
• The mean award for unfair dismissal was £12,000 across 790 claims receiving compensation

Auto-enrolment bill receives Royal Assent

The Pensions (Extension of Automatic Enrolment) Act 2023 gives the Secretary of State the power to make two key changes:

1. To reduce the age for being automatically enrolled into a pension scheme (from 22 to 18 years old); and
2. Remove the lower earnings limit for contributions meaning auto-enrolment contributions start from the first pound, not just those over £192 per week.

We currently have no set implementation date but will update you when we have more details. Obviously, there is nothing stopping you from adopting the changes before the legislation comes into force.

Data Protection and Digital Information Bill No.2

The government’s aim is to simplify the UK’s data protection framework – in particular, they’re suggesting that record keeping of personal data will only be required where processing results in a high risk to the rights of individuals (the Information Commissioner’s Office will need to publish guidance on what constitutes ‘high risk’).

Employers with less than 250 employees are exempt from record-keeping duties unless their data processing activities carry a high risk to the rights of individuals. The bill is currently working through the House of Commons and is due its third reading stage.

People dates for your diary 

21 November – Carers Rights Day | Raising awareness of rights and challenges of unpaid carers

25 November – White Ribbon Day | Preventing violence against women and promoting gender equality

07 December – Christmas Jumper Day | Save the Children’s annual fundraising event

02-08 December – National Grief Awareness Week | Supporting those who may be grieving and create better understanding of the grieving process

If you have a colleague who explains they’re neurodivergent (or you suspect may be undiagnosed) you’ll need to know more.

With neurodiversity comes terminology unfamiliar to some. Here are the key terms you may hear and what they mean:

• Neurodiverse – the concept that humans’ brains work in many different ways and there’s no singular ‘right’ way of thinking, learning, processing information or behaving.
• Neurodivergent – people who have differences in their neurological development and functioning.
• Neurotypical – someone who fits the societal ‘norm’ and has typical neurological development and functioning.

Neurodiverse conditions can include autism, ADHD, ADD, dyslexia, dyscalculia, dyspraxia (difficulty with reading, maths, and coordinated movements respectively) and many more.

Each condition is different and has different symptoms. Many people remain undiagnosed – it’s estimated that 700,000 people in the UK are autistic but undiagnosed. Knowing the signs of possible neurodivergence is important – watch out for (but not limited to):

• Physical – sensory differences, repetitive behaviours, pacing, physical tics.
• Emotional or behavioural – low attention span, intense curiosity, difficulty communicating, sensory sensitivities.
• At work – rapid speech, impulsive actions, hyper-focus, easily distracted, difficulty dealing with change.

We explain how simplifying the redundancy process creates better business and people outcomes, specifically:

• Exactly what ‘simplifying’ the process means for your business and people
• How to leverage technology to create a smoother and more compassionate people experience during redundancy
• How a simplified process will allow you to manage more effectively the mental health and productivity impact of a redundancy process

The session includes employment law, HR technology, outplacement and coaching expertise from across our Empowering People Group to share unique insights covering every stage of the process. Definitely worth a watch!