MPs express concerns over EHRC Services Code
The government rejected calls for a Parliamentary debate and vote on the EHRC’s updated Services Code, which it laid before Parliament in late June, despite 142 MPs signing a Commons motion seeking a debate. Nadia Whittome, a Labour MP, tabled the motion objecting to the services code, citing objections to the code that she had heard from trans-led organisations. Whittome and other MPs also questioned the EHRC Chair, Dr Mary-Ann Stephenson, and CEO, John Kirkpatrick, at a Women & Equalities Committee evidence session which included the code. Dr Stephenson explained: “We recognise that there are certain elements of what we now understand the law to be that disadvantage trans people, compared to what they thought the law was. We have tried to make the code clear about how service providers, for example, can follow the law in ways that protect the rights of trans people”. She added: “…what we set out in the code is not us making the law; it is us explaining to people what the law requires. In this instance, where you are providing single-sex services or services separately, that needs to be on the basis of biological sex. We also make very clear that that should not leave trans people without access to services, and we give specific examples of how you could do that”. Despite opposition expressed by some MPs, the code will very likely take effect in its current form. Although the government gave little comment when rejecting the request for a debate and vote on the services code, the Guardian reported on the government’s acknowledgement of strong views. For our thought on the services code and practical guidance for service providers, see our guide on Out-Law.
ERA – ET penalty enforcement passes to FWA
The government updated its guidance on the ET penalty enforcement and naming scheme to show this now falls within the remit of the Fair Work Agency. The scheme provides a mechanism for workers to take action where employers fail to pay ET awards or Acas settlements. Under the scheme, individuals can apply to the FWA if an ET award remains unpaid for at least 42 days, or if the respondent does not pay a COT3 settlement by the agreed date. The FWA will review each application and, where appropriate, the FWA will issue a warning notice requiring the respondent to make payment. If the respondent does not respond within 28 days, the FWA may impose a financial penalty. The FWA calculates the penalty at 50% of the unpaid award, subject to a minimum of £100 and a maximum of £5,000, and the respondent must pay the penalty to the government rather than the claimant. Importantly, the penalty does not extinguish the underlying liability and the respondent must still pay the full award. The scheme also includes a naming mechanism. Claimants can request that the FWA publicly lists non-payers, which creates an additional reputational consequence. The government introduced the ‘naming and shaming’ regime in 2016. The transfer of responsibility to the FWA may increase the scheme’s profile and raise employee awareness of this enforcement option. Employers will also wish to avoid attracting the FWA’s regulatory attention.
Government launches consultation on time off for public duties
Another consultation is now live – this time on the statutory right to take time off work for public duties. The right enables employees to take reasonable time off to carry out certain civic roles and supports participation in public life and the effective delivery of services. The consultation follows a government review of the current time off for public service framework, published last week, which considered whether the existing list of duties reflects modern public service needs and working patterns and suggested changes to the law. In particular, the government is inviting views on which public duties should qualify for time off, as well as additions to and removals from the current list. For example, the government has proposed adding the role of Special Constable to the list. The consultation also seeks feedback on how the entitlement works in practice for both employees and employers and reflects changes in the world of work and the evolving nature of public service roles. Stakeholders can submit responses until 4 September, and the government will use the feedback to inform any future changes to legislation.
Why the ERA matters for commercial contracts and procurement
We hosted a webinar last week, looking beyond the ERA’s impact on HR policies and processes to how it will affect wider commercial relationships and contractual arrangements. The ERA is likely to reshape supply chain dynamics, workforce planning and create new risks and obligations that organisations will need to actively manage, so view the recording to find out more: Employment Rights Act - Why it matters for commercial contracts and procurement. For those looking to take their preparations to the next stage, we have a practical ERA 2025 procurement checklist for HR, commercial and legal teams involved in buying, delivering or managing services. The checklist reflects both customer and supplier perspectives on the key issues covered in the webinar. It is designed to help organisations identify employment law risks early, ask the right questions, and build appropriate protections into procurement, contracts and service delivery. If you would like to receive a copy of the checklist, contact Gillian Harrington or Kate Dodd or your usual Pinsent Masons’ contact.
