Welcome to this month's briefing for HR teams and in-house employment counsel – bringing you employment law highlights in an easy-to-read package with our monthly podcast.

Podcast: Legislative reform

In this month's edition, Matthew Ramsey runs through the Government's proposals for reform of TUPE, holiday pay and working time record-keeping. Listen to the podcast.

Collective redundancy

Most readers will be familiar with the consultation obligations that are triggered whenever 20 or more redundancies are proposed within a 90-day period. One element that is often forgotten is the parallel obligation to inform the Government, via the Insolvency Service's HR1 form. Unusually for employment law, a failure can be a criminal matter. The obligation is particularly difficult in insolvency situations, where the very rapid timeframes often make it almost impossible to submit the HR1 form in a timely manner. The employing entity proposing redundancies bears the primary liability in terms of filing the form, but directors, managers and other corporate officers can have personal liability in some cases too. Although there have been relatively few prosecutions, the possibility of criminal sanction and an increased focus on this area in the wake of the P&O situation has made this an essential point to get right. One live question for administrators has always been whether they are personally at risk when they are appointed to step in to run a company in administration. Helpfully, the Supreme Court has now clarified the position, holding that administrators are not officers of the company in administration, and so cannot – as a matter of statutory interpretation – commit the HR1 form offence personally. It remains the case that corporate employers still need to be mindful of the need to submit the form, and directors anticipating insolvency and likely redundancies may still be required to do so before administrators are appointed. For all those reasons, the form should very much be on HR checklists whenever redundancies are a possibility.

Rehabilitation of offenders

The Government has recently altered some of the periods after which some convictions become spent, meaning that they no longer have to be disclosed for many employment roles. The interaction of the Rehabilitation of Offenders Act, the Exceptions Order that requires candidates for some roles (e.g. lawyers, roles involving safeguarding, and many financial services positions) to disclose even spent convictions, and the Data Protection Act can be extremely complicated, so it is essential to understand which roles in your organisation require which checks and disclosures.

Sexual harassment

Regular readers will recall that we flagged in our August briefing the legislation then going through Parliament focussing on harassment and sexual harassment. The legislation has now been passed, but in somewhat attenuated form. The only significant change that has survived the Parliamentary process is a new duty on employers to take reasonable steps to prevent sexual harassment. The original proposal was for this duty to require "all" reasonable steps, and to be accompanied by new drafting that would make employers liable for the harassment of their employees by third parties in the course of their employment if the employer failed to take all reasonable steps to prevent the harassment. Both of those elements have been dropped. Further guidance on the new reasonable steps obligation is awaited, and we shall no doubt revisit this topic when that materialises. Until then, please do revisit the discussion in our September briefing on what steps might be sufficient to discharge the obligation.

Handling data breaches - workshops for in-house counsel

22 November 2023, 8:30 - 11:30am

Data security consistently ranks as the primary concern of in-house counsel, compliance and HR professionals in surveys of perceived risks to their business. On 22 November 2023 our data protection specialists will lead an interactive workshop on how to handle common data breach scenarios. Based on actual cases, we will explore:

  • best (and worst) practice in responding to cyber-attacks;
  • actions by rogue employees; and
  • inadvertent data breaches.

Places are limited, so please get in touch with events@macfarlanes.com if you would like to attend.

Interested in employment tax? Read our recent employment tax update for November.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.