Employment Law +

Employment Rights Bill timeline update

We are of course monitoring for consultations in line with the government’s roadmap, so we thought a quick update on timings might assist… The Bill didn’t complete its parliamentary journey before the summer recess because the Lords proposed a lot of amendments, including changes to eligibility for unfair dismissal rights. Specifically, they suggested removing day one eligibility and replacing this with a six months’ service qualification period. We expect the government will need to resolve these amendments before it can launch the consultation on day one unfair dismissal which its roadmap had scheduled for Summer/ Autumn this year. There’s a tight window for that to happen before Parliament breaks up again, but it’s doable, just!

Here’s how timings currently look:

• 31 August – parliamentary summer recess ends.
• 3 September onwards – third reading begins, then the Bill will ‘ping-pong’ between Commons and Lords.
• 19 September – Parliament breaks up for party conferences.

We anticipate that the government will want to conclude the Bill before the conference recess. We also expect the Lords to concede to the government’s position on day one rights, especially since this forms part of a manifesto commitment. However, the timing of the consultation on day one rights remains fluid.

Equality regulator suggests return of discrimination questionnaires

The EHRC published its response to the UK government’s call for evidence on multiple equality topics and makes several recommendations, including the return of statutory discrimination questionnaires. The EHRC plays a formal advisory role to government about equality regulation so its response is significant. It attracted attention this week because of the suggestion that the government considers reinstating the statutory discrimination question and answer procedure which set out a legal framework for individuals to ask questions about alleged discrimination at work. ETs could draw inferences of discrimination if an employer failed to reply or provided an evasive answer. It was repealed in 2014 to reduce the regulatory burden on business - and was replaced by ACAS guidance on a question and answer process. The EHRC also suggests:

- giving the EHRC, or any new enforcement unit, a power to order an equal pay audit where equal pay law has been breached. Currently, only an ET can order this and the EHRC notes that ETs have only used this power once; and 
- whether mandatory pay transparency measures may be more effective than voluntary guidance.  

The consultation closed in June and a government response is expected later this year. 

Failure to prevent fraud offences – issues for HR investigations into fraud

As we near the 1 September implementation date of the new corporate criminal offence of failure to prevent fraud, we thought it would be helpful to flag some issues about investigations into fraud allegations for our HR and employment legal audience. Our colleagues in Pinsent Masons’ Global Investigations team issued a reminder at the beginning of August: ECCTA: one month to go as businesses urged to review fraud prevention procedures. 

From an HR perspective, most investigations can be managed effectively via the usual internal audit or HR investigation routes - for example, a low-level misconduct such as a small-scale employee theft. 

However, if there is a potential for corporate criminal liability or serious financial misconduct, it is essential to stop and think before cracking on with internal investigations into fraud to preserve the integrity of the investigative process. For example:
• Does the interview need to be held ‘under caution’? 
• Is "tipping off" a concern? (Individuals can be criminally liable if they disclose information which risks prejudicing an investigation by a law enforcement agency.)
• Are there regulatory or criminal issues and/or reporting obligations? 
• Do you aim to assert legal privilege protections? 

Please get in touch with any queries.

This page is updated weekly with News and Views from that week’s employment weekly briefing email. For previous articles, please contact us: Employment Law Plus.

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