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Employment Matters - November 2023 (Financial Services)

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Publish 10 November 2023

Overview

This month there are fewer case law developments to report. However, a significant development is that the last of seven employment related private members' bills has become law having received Royal Assent at the end of October, and a new obligation on employers to take reasonable steps to prevent sexual harassment of their employees is due to come into force in 2024. 

At a minimum, employers will need to be delivering training and reviewing their policies and processes ahead of this change. The government has also just published its response to the consultations on holiday pay, working time and TUPE – we consider its proposals and the implications for employers. 

You may have already seen our alert here on proposals to address non-financial misconduct in SMCR firms in the Financial Conduct Authority (FCA) and the Prudential Regulation Authority's (PRA) recent consultation papers. Those papers also propose a range of measures aimed at improving diversity and inclusion (D&I) in the financial sector which we look at below.

We also take a look at the Information Commissioner's Office (ICO) guidance, published on 23 August 2023, to assist employers in understanding their obligations when handling any information about the health of the people that they employ.

1. D&I in the financial service sector: FCA & PRA consultation proposals aimed at moving the dial

The financial conduct authority (FCA) and the prudential regulation authority (PRA) published consultation papers which propose a range of measures aimed at improving diversity and inclusion (D&I) in the financial sector. This alert looks at the measures aimed at improving D&I. Please see our separate alert here on the aspect of these consultations which address proposed changes and clarifications in respect of non-financial misconduct.

2. Increase to the immigration health surcharge

On 16 January 2024, the immigration health surcharge (IHS) will be increased.

3. Data privacy: ICO guidance to assist employers handling any information about employees' health

The information commissioner's office (ICO) published new guidance on 23 August 2023 to assist employers in understanding their obligations when handling any information about the health of the people that they employ.

4. Bonuses: Bonus 'claw back' provisions were not a restraint of trade

Contractual provisions requiring an employee to repay his bonus if his employment terminated within three months of the bonus payment were not a restraint of trade.

5. Spent convictions: Criminal record disclosure timescales reduced

The period of time for which ex-offenders are required to declare offences is to be reduced for some offences.

6. Disability discrimination: Tribunal upholds claim of indirect associative discrimination

An employment tribunal has held that an employee who was made redundant when she could not be fully office based because she cared for her disabled mother had suffered indirect associative disability discrimination. 

7. Vicarious liability: Liability for sexual assault

The court of appeal has held that a secondary school was not liable for acts of sexual assault committed by a student who was on a one week work experience placement.

8. Sexual harassment: New duty to take reasonable steps to prevent sexual harassment

Legislation imposing a new obligation on employers to take reasonable steps to prevent sexual harassment of their employees to come into force in 2024.

9. Religion and belief discrimination: Protected beliefs

An employment tribunal has found that an employee's opposition to critical race theory is a protected belief.

10. Government moves forward with changes to holiday pay, working time and TUPE

On 8 November the Department for Business and Trade published its response to the consultation on amendments to the law on holiday pay, TUPE and working time. The government has also published a draft statutory instrument containing the amendments. The regulations are likely to come into force in January 2024.

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