Firms in the insurance sector have submitted their responses to the FCA’s recent survey into non-financial misconduct and, before too long, other regulated firms may receive similar survey requests.
In this update, we look at the questions the FCA is asking and what we might expect next.
Our latest legal update considers a recent decision from the Scottish Court of Session which makes it clear that employers can settle future claims which are unknown at the time of entering into a settlement agreement, even if the basis for the claims has not yet arisen (Bathgate v Technip Singapore Pte Limited).
Find out what this means for employers by reading our legal update here.
This week, the Ministry of Justice announced that it is commencing a consultation on the introduction of a fee of £55 which will be payable on presenting a claim to the Employment Tribunal or when lodging an appeal with the EAT (please click here for further information). It is proposed that the same fee will be payable regardless of the type of claim.
In order to address concerns in relation to those who cannot afford the fees, it is proposed that individuals will be supported by a fee remission scheme which will provide financial support to individuals on low incomes and with small savings.
The Ministry of Justice estimates that the fees could generate between £1.3 m – £1.7 m a year from 2025/2026 onwards. It is hoped that the fees may incentivise parties to settle their disputes at an early stage via Acas, however, given the low fee rate it may not have the desired impact.
As some may recall, the previous fee regime was introduced in 2013 and ended in 2017 following a Supreme Court ruling that the fees impacted access to justice. The previous regime had a significant impact on the number of cases, with a sharp decline seen following their introduction. However, fees under the previous regime were much higher as they ranged from £390 to £1,200 depending on the type of case.
The consultation is due to close on 25 March 2024 and it is suggested that, if implemented, the fees will become payable from November 2024. It will be interesting to see if the same concerns regarding access to justice are a feature of the consultation response, notwithstanding the proposed fees are set at a much lower level than before.
With 2024 now underway, this is the perfect time to check out our Insights publication.
In case you missed it, Insights highlights what’s on the horizon for employers this year across a range of jurisdictions, including the UK, France, Germany, Hong Kong and US, and provides a regional snapshot of the key hot topics across the Americas, Asia and EMEA.
Alongside a curated review of news and developments from 2023, Insights provides a helpful overview for businesses as they implement their 2024 plans.
If you have any questions, or would like to discuss any of the items covered further, please contact Christopher Fisher, Miriam Bruce or Louise Fernandes-Owen.
Our latest legal update considers the amendments recently proposed by the Financial Conduct Authority (“FCA”) to its Conduct Rules, to include non-financial misconduct such as bullying and harassment.
We look at issues including:
You can read our legal update here.
Our related article, examining the other proposed new requirements contained within the FCA and PRA proposals, can be found here.
On 21 November 2023, the Supreme Court ruled that Deliveroo riders (“Riders”) are not in an “employment relationship” for the purposes of Article 11 of the European Convention on Human Rights. The Supreme Court decision is entirely consistent with previous decisions by the Central Arbitration Committee (“CAC”), High Court and Court of Appeal.
Litigation between the Independent Workers Union of Great Britain (“IWGB”) and Deliveroo began in 2016, when the CAC rejected a collective bargaining application made by IGWB on behalf of the Riders. The CAC decided that Deliveroo riders cannot be classified as ‘workers’ under Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) and so could not form a collective bargaining unit. The IWGB challenged this decision in the High Court on the grounds that the definition of ‘worker’ under s. 296 of TULRCA should be interpreted to encompass Deliveroo Riders, for the purposes of exercising Article 11 rights. The High Court dismissed this review and IWGB appealed in the Court of Appeal, where the appeal was again dismissed.
Notwithstanding its previous lack of success, the IWGB decided to appeal the Court of Appeal decision. However, the Supreme Court (“SC”) rejected the latest appeal and homed in on a number of helpful principles, including:
First, that the right to form and join a trade union under Article 11 was restricted to ‘Article 11 workers’; following criteria set out by the International Labour Organisation Recommendation No. 198 (“ILO”) on determining an employment relationship, it was found Deliveroo Riders were in no such relationship. The ILO mentions that “an employment relationship is one that should be primarily guided by the facts relating to the performance of work and the remuneration of the worker, notwithstanding how the relationship is characterised in any contrary arrangement, contractual or otherwise, that may have been agreed between the parties.”
Second, the SC focussed on Riders’ ‘virtually unfettered’ power to appoint a substitute. The SC deemed this power to be wholly inconsistent with an employment relationship, as it does not satisfy the obligation to provide a personal service for the purposes of Article 11. The right to substitute was deemed sufficient to determine that Riders do not fall within Article 11’s scope. The SC noted that a Rider’s use of substitutes was not policed, nor did Deliveroo exercise its right of termination in the event of a Rider’s failure to accept a certain number of orders. The fact that Riders provided their own equipment, had no specific working hours and had full autonomy over whether they indeed carried out any deliveries at all, were among a few other principles considered. The appeal was dismissed.
The judgment of the SC is interesting for two reasons:
The Worker Protection (Amendment of Equality Act 2010) Act 2023 (the “Act”) became law in England, Wales and Scotland on 26 October 2023, and will come into force in October 2024.
The Act, which introduces a positive legal duty on employers to take reasonable steps to protect their employees from sexual harassment at work, builds upon existing legislation and a recent push by the UK’s financial regulators to tackle non-financial misconduct.
Where an Employment Tribunal (“ET”) finds an employee has been sexually harassed at work, and determines that compensation should be awarded, the ET must now consider whether the employer breached their duty to take reasonable steps to prevent the harassment. Where an ET finds that an employer breached its duty, it will have discretion to increase the employee’s compensation by up to 25%. There is currently no cap on the compensation that can be awarded for sexual harassment claims.
The Equality and Human Rights Commission will also have jurisdiction to bring enforcement action.
While the bill was originally drafted to re-introduce a duty on employers to protect their staff from harassment by third parties (which was abolished in 2013), the House of Lords removed this provision before the bill became law.
Employers should consider reviewing their policies on harassment and related issues, and ensure their staff are properly trained to safely identify and intervene in situations where sexual harassment may arise.
New legislation came into effect at the end of October 2023 which has reduced the period of time during which criminal convictions are legally required to be declared to employers. Under the previous legislation it was necessary for some offenders to disclose their convictions for the rest of their lives, which was seen as a barrier to employment. The Government has suggested that these changes should make it easier for over 120,000 former offenders to find work.
The table below sets out a summary of the changes:
| Length of custodial sentence for adults | Previous length of time to disclose | New length of time to disclose |
| Custodial sentence of over 4 years | Never spent | 7 years |
| Custodial sentence of 2 ½ years – 4 years | 7 years | 4 years |
| Custodial sentence of 1 – 2 ½ years | 4 years | 4 years |
| Custodial sentence of 6 months – 1 year | 4 years | 1 year |
| Custodial sentence of up to six months | 2 years | 1 year |
However, it still remains the case that some convictions are never spent, e.g. convictions for serious violent, sexual and terrorism offences and stricter disclosure rules will continue to apply for jobs involving work with vulnerable people.
In light of these changes, employers will need to make sure any relevant forms and systems are updated to reflect the new time periods.
On 8 November 2023, the Government published its much-anticipated response to key employment law consultations announced earlier this year. The consultations were focused primarily on areas of retained EU employment law where the Government “saw opportunities for improvements” following Brexit. This included reviewing elements of the Transfer of Undertakings (Protection of Employment) Regulations (“TUPE”), the Working Time Regulations (“WTR”) and revisiting the calculation of holiday pay.
Consultations
On 12 May 2023, the Government began a consultation on areas of retained EU law which it had identified as ripe for review, namely:
In addition, post the Supreme Court decision in Harpur Trust, the Government also consulted on how best to ensure that part year and irregular hours workers received holiday pay directly proportionate to the time they spent working. As detailed in our earlier post on this case, the impact of Harpur Trust has been that part year workers were entitled to a larger holiday entitlement than part-time workers who had worked the same total number of hours across the year. This anomaly had both cost and employee relations implications for employers.
The Government’s response
The Government has issued legislation to clarify that UK businesses do not have to keep a record of daily working hours for each worker.
Uncertainty as to whether such records needed to be retained arose following a European Court judgement in 2019 (CJEU Federación de Servicios de Comisiones Obreras (“COOO“) v Deutsche Bank SAE). This case held that working time records must be kept showing the number of hours a worker worked each day and each week. This was a surprise to most UK employers as, if the ECJ decision was right, it would mean a more onerous administrative burden on both employers and workers than had previously been the case. The WTR requires only that ‘adequate’ records should be kept in order to demonstrate compliance with specific provisions. It does not prescribe the specific form that working time records should take. Further, HSE guidance from 2019 made clear that ‘there is no specific need to keep records of actual daily working time’ and ‘it is not necessary to create records specifically for the purposes of the WTR, and employers may be able to use existing records kept for other purposes such as pay. If particular workers or groups of workers are unlikely to reach the various limits (e.g., because they always work a set 40-hour week), this requirement can be met simply by making occasional checks to ensure that nothing has changed’. The COOO decision cast serious doubt on whether UK employers had been taking the right approach to working time record keeping.
Implications for employers: The Government’s announcement is good news for employers. The uncertainty created by the COOO decision has been resolved.Employers will only need to follow current – and less onerous – record keeping requirements to show compliance with the WTR. They will not have to keep detailed records of each worker’s daily working hours. Note that other key protections under the WTR will remain in place and are unaffected by the Government’s reforms, including: the 48-hour working week and the ability to opt out of it and rest breaks of 20 minutes for a working day of 6 hours or more.
The Government sought responses on whether to: (i) create a single annual leave entitlement of 5.6 weeks (i.e. combining the 4 weeks of so called “Euro” leave and the separate entitlement of 1.6 weeks of leave under the WTR into a single entitlement) ; and (ii) introduce rolled up holiday pay, which would see workers receiving an enhancement of 12.07% in each payslip to cover their holiday pay, as opposed to receiving holiday pay only when they take annual leave.
The Government has opted not to introduce a single annual leave entitlement, preferring instead to keep the ‘pots’ of holiday entitlement separate. The reason for this is that the two separate leave entitlements or pots currently in place are paid at different rates (the 4 weeks of “Euro” leave is paid at the rate of normal remuneration and the additional 1.6 weeks of leave is paid at the basic rate of pay). The Government’s view is that it would only be sensible to move to a single leave entitlement if there is single rate of pay applicable to that entitlement. For now, moving to a single rate of pay for holiday as opposed to the current system of two different rates of pay depending on the type of leave, is seen as too administratively burdensome for employers.
However, the Government says it will legislate to clarify what is meant by “normal remuneration”. This, it says, will allow employers to continue with their current payroll systems whilst clarifying which elements form part of normal remuneration.
In terms of rolled up holiday pay, the Government’s view is that there is little benefit in deploying this for full time or full year workers. Rolled up holiday pay will only be introduced for irregular hours workers and part-year workers (including some agency workers). The Government has confirmed that a worker is an irregular hours worker in relation to a leave year if the number of paid hours that they will work in each pay period during the term of their contract in that year is, under the terms of their contract, wholly or mostly variable.
Implications for employers: The Government’s decision to reject a single leave entitlement will be welcome news for employers. Current arrangements can continue unchanged. However, employers should review the Government’s definition of “normal remuneration” to ensure current arrangements are aligned with the clarification provided. In terms of a return to “rolled up” holiday pay, employers should benefit from the administrative simplicity it will bring to calculating holiday pay for those working irregular hours. It is notable though that the definition requires the worker to work “wholly or mostly variable” hours in order to be classified as an irregular hours worker. In addition to checking whether its atypical workforce falls within one of the categories of worker than can now receive rolled up holiday pay, the main concern for employers will be that there is limited time to prepare for the switch to rolled up holiday pay. The legislation will be effective from 1 January 2024.
As noted above, the Government has decided to introduce rolled up holiday pay for irregular hours works and part-year workers (including some agency workers).
In response to the difficulties created by the Harpur Trust decision, the Government will also legislate to introduce an accrual method to calculate entitlement at 12.07% of hours worked in a pay period for irregular hour workers and part-year workers in the first year of employment and beyond. Other workers will continue to accrue annual leave in their first year of employment as they do now by receiving 1/12th of the statutory entitlement on the first day of each month and to pro-rate it thereafter.
Implications for employers: The Supreme Court judgment in Harpur Trust resulted in part-year workers getting different pro rata amounts of leave (in days or hours) than other workers who work similar hours over the year but with a different work pattern. Tackling this anomaly, through the introduction of a 12.07% accrual method, will no longer result in that outcome. This means that the approach to holiday entitlement and pay for irregular hours workers will be easier for employers to manage from an administration, costs and employee relations perspective. In addition, many employers will be familiar with the 12.07% accrual method, as it had been widely used (and well understood) prior to the Harpur Trust judgment.
Since 2015, TUPE has included a “micro business” exemption, i.e., that employers with fewer than 10 employees can consult directly with those employees in relation to TUPE transfers where there are no existing appropriate representatives or a recognised union. The Government has decided to extend this exemption even further by confirming that small businesses (with fewer than 50 employees) undertaking a transfer of any size, and businesses of any size undertaking a small transfer (of fewer than 10 employees) will be able to consult their employees directly under TUPE if there are no existing worker representatives in place.
Implications for employers: The Government’s decision does not change the need for employers to engage in a proper and effective consultation process. It is also important to note that the exemption does not apply where representatives are already in place, even if the business is small or the number of transferring employees is under 10. Whilst extending flexibility in the way outlined will be viewed positively by employers, it may not have much practical impact. There are likely to be many employers who already opt to consult directly on small transfers where affected employees have consented to direct information and consultation.
The Government will also restate various pieces of retained EU case law that it considers necessary to retain workers’ overall level of protection and entitlement in relation to the carry-over of annual leave when a worker is unable to take their leave due to being on maternity/family-related leave or sick leave.
Overall
Whilst the reforms do not go as far as some employers would like (particularly in relation to TUPE where many employers hoped to see some flexibility around harmonising terms and conditions of employment), the changes will be viewed positively by most employers. They promise much needed simplicity and flexibility on historically complicated areas of the law which have been heavily litigated in the European and domestic courts.
However, it is worth noting that the reforms are due to come into force from 1 January 2024 and so there is little time for businesses to adapt, particularly if they want to re-introduce rolled up holiday pay quickly. In addition, the Government response promises that “more fundamental” reforms to the rate of holiday pay are being contemplated, so employers will need to continue to monitor developments in this area for some time to come.
You can read the Government’s Response and draft statutory instrument online.
Edit – February 2024: Please note that it has now been confirmed that these changes will take effect for leave years beginning on or after 1 April 2024.
The Labour Party has announced that, should it win the next general election in 2024, Britain can expect a significant reform to employment law. In her recent speech to TUC Congress, Angela Rayner stated that within the first 100 days of entering office Labour will bring forward an Employment Rights Bill to legislate a “New Deal for Working People”.
Within the speech and Green Paper, extensive reforms are being proposed including:
Labour believes that implementing these changes will lead to fairer working conditions which, in turn, will improve productivity, economic opportunity, health and wellbeing. While the details have not yet been finalised, if implemented, the New Deal for Working People could mean the most significant reform to employment law in decades.