Employment Law Updates to be aware of during ‘wash-up’!

Parliamentary wash-up

As you are all aware, there is a General Election taking place on the 4th July. As a result, on the 22nd May 2024 Rishi Sunak requested permission to dissolve Parliament. Parliament was prorogued (discontinued without dissolving) on the 24th May, and was dissolved on the 30th May. Parliament continues to sit until it is prorogued and this period is called “wash-up”.  This period is the opportunity for Parliament to get through any unfinished business before dissolution. In this election, wash-up only lasted for two days.

During “wash-up”, there were the following updates that we should be aware of:

Paternity Leave (Bereavement) Act 2024

This Act has been rushed through Parliament in the wash-up period. It originally started out as a Private Members Bill which was known as the Shared Parental Leave and Pay (Bereavement) Bill, but this was expanded to include provisions relating to bereavement in adoption and surrogacy, and was renamed the Paternity Leave (Bereavement) Bill at committee stage.

This Bill made an extremely quick passage through the Parliamentary process and completed its committee stage and third reading in the House of Lords on the 24th May, and received Royal Assent on that day too, becoming the Paternity Leave (Bereavement) Act 2024. However, further regulations will be needed to bring this into force, which means this will need implementation by whichever Government is elected after the General Election.

What is included in the Paternity Leave (Bereavement) Act 2024?

• When this is fully implemented, the usual 26-week minimum service requirement to be eligible for paternity leave will be disapplied for fathers and partners where the mother has died in the first year after childbirth. A bereaved parent of an adopted child, or intended parent of a child born through a surrogacy arrangement, will also be covered.

• The provision that a parent who has taken shared parental leave cannot then take paternity leave will be removed in these circumstances.

• In a situation where the child also dies, or is returned after adoption, regulations will then allow the bereaved parent to stay on paternity leave despite the fact that they would not be taking leave for the purpose of supporting the mother or caring for a child.

• Regulations “may” also allow bereaved employees to work for their employer without bringing their leave to an end – by the use of KIT days, and provide for enhanced redundancy protection when the bereaved individual returns to work.

•  At the third reading in the House of Commons on the 26th April 2024, Chris Elmore MP confirmed that the intention of the Act is for a bereaved father or partner to have 52 weeks’ leave available during the first year of their child’s life, from the day on which the mother or primary adopter of the child has died.

During the second reading in the House of Lords on the 17th May 2024, the Government indicated that the legislation should be brought in as quicky as possible, with a view to the new rights being in force at the beginning of the next financial year (so April 2025). Regulations will be required (which will also hopefully provide some more detail of these provisions) but if Labour are successful in the General Election, it does seem that they would be keen to pass the necessary legislation so it is very likely these new rights will come into force next year.

What do employers need to do?

There isn’t anything that employers need to do at present, but it is worth noting that this is only in relation leave and not pay. In addition, if Labour are elected they plan to give day one family friendly rights in any event, so the 26 weeks service requirements for paternity leave may not remain.

Draft statutory Code of Practice on the fair and transparent distribution of tips

This was approved by the House of Lords on the 24th May, however, commencement regulations are now needed to bring the Code and the remaining provisions of the Employment (Allocation of Tips) Act 2023, into force. We had expected this to come into force on the 1st October 2024, but we shall now need to wait and see…

The Code of Practice (Dismissal and Re-engagement) Order 2024

This was laid before Parliament on the 28th May 2024 and the Order brings into force the statutory Code of Practice on dismissal and re-engagement on the 18th July 2024. It will not apply where the prospect of dismissal and re-engagement has been raised by the employer prior to this date. The draft Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment of Schedule A2) Order 2024, that would allow for an uplift or reduction in compensation if the Code is not followed, was also expected to come into force on the 18th July, however this Order was not brought into force prior to the end of “wash-up”. Whether this the Order will be brought into force will depend on the outcome of the election – it is worth remembering that Labour have committed to banning fire and rehire altogether.

Labour’s Plan to Make Work Pay

Labour have produced a “Plan to Make Work Pay” document, which essentially updates their Employment Rights Green Paper. We haven’t seen any of the political parties’ manifestos as yet but from having a look through this updated document produced by Labour,  it’s worth noting the following:

“Labour will also strengthen redundancy rights and protections, for example, by ensuring the right to redundancy consultation is determined by the number of people impacted across the business, rather than in one workplace. Labour will also strengthen the existing set of rights and protections for workers subject to TUPE provisions.”

This means that the case of USDAW and another v WW Realisation 1 Ltd (in liquidation), Ethel Austin ltd and another (‘the Woolworths case’) will effectively be reversed and the duty to collectively consult will occur when looking at the number of redundancies over the whole business, rather than at each workplace, which is the law at present.

“..we would increase the time limit within which employees are able to make an employment claim from three months to six months, bringing this time limit for all claims in line with the time limit for statutory redundancy and equal pay claims.”

There was reference in the original Green Paper to time periods for bringing claims in the Employment Tribunal being increased, but there were no details. This new commitment sets out the extension in time limits envisaged. This seems to be based on the fact that Labour want to support those who are making claims for pregnancy discrimination, as there is evidence that women struggle to make funds available to lodge claims within the time limit. They also suggest that this will allow for more time for internal procedures to be completed, so that the number of claims could decrease. The Green Paper did suggest that the statutory limits on employment tribunal compensation would be removed as they are “unfair”, however,  the new “Plan to Make Work Pay” is now silent on this point.

“Labour will make it easier for workers to raise grievances about conduct at work. Labour will enable employees to collectively raise grievances about conduct in their place of work, to ACAS.”

This wasn’t included in the Green Paper. This commitment has arisen from the concern that some workers may not know that other people have experienced the same issues they have, so that “bad or illegal practice can continue without properly being dealt with”.