Next year looks set to be as busy as ever for HR practitioners in the higher education sector. So what are the key priorities?
Consider the impact of new employment legislation
It has been a while since there has been any substantial new employment legislation, but this year a number of important private members bills have become law and will come into force during 2024. These will necessitate a review of institutional policies and procedures to check where change is needed and to consider where training or guidance should be provided to line managers.
Key areas affected are:
- Flexible working – the right to request will become day one right (extending the right to an additional 2.2 million employees) – other changes are the introduction of the requirement for employers to consult with the employee making the request, to increase the number of requests that can be made and reduce the time the institution has to deal with the request
- Requesting a more predictable contract – allowing a worker after 26 weeks to apply for a change in terms and conditions of employment if there is a lack of predictability
- Extending redundancy protection – extending the obligation to offer suitable alternative employment (where that exists), for those at risk of redundancy while on maternity and adoption leave to include a period of six months after the return to work from the relevant leave and expanding protection to include those taking shared parental leave
- Neonatal care – the right for employees from day one to leave and for those with 26 weeks' service to pay for a prescribed period to be confirmed
- Carers leave – a day one right for employees to a week’s leave from work during any period of 12 months in order to provide or arrange care for a dependant with a long-term care need.
Sexual harassment and misconduct
We are awaiting the outcome of the Office for Students consultation on a new approach to regulating harassment and sexual misconduct in English higher education. This will impose a new ongoing condition of registration on all registered higher education providers in England, which could:
- Provide “clear definitions” of harassment and sexual misconduct to support consistency across the sector
- Require a provider to develop and publish a single document with minimum content requirements
- Require each provider to have the capacity and resources to deliver everything required by the proposed condition
- Ensure freedom of speech and academic freedom are protected
- Prohibit non-disclosure agreements
- Place regulatory requirements on registered providers in relation to personal relationships between students and relevant staff.
A further development in this area is that the Worker Protection (Amendment of Equality Act 2010) Bill is likely to receive Royal Assent later this year and come into force next year. This will introduce a new pro-active duty on employers to take reasonable steps to prevent sexual harassment of their employees and provides for a compensation uplift (of up to 25%) in successful sexual harassment cases where the employer has been in breach of this duty.
HR practitioners are advised to keep an eye on these areas and consider the impact on how the institution manages sexual harassment complaints.
Free speech
The Higher Education (Freedom of Speech) Act finally received Royal Assent on 11 May 2023, some two years after the draft legislation was first introduced. It is expected that all provisions will be in force by the start of the next academic year.
Although the Act, which requires the governing body of a registered higher education provider in England to take reasonably practicable steps to achieve the objective of securing freedom of speech within the law for its staff, members, students and visiting speakers, repeats a number of existing obligations there are important changes. HR practitioners should note that protection now specifically extends to academic staff applying for a job or promotion and that the Act is more prescriptive in terms of what the institution’s code of practice for securing freedom of speech the code must contain.
A new provision contained within the Act is the obligation to promote the importance of both freedom of speech within the law, and academic freedom for its academic staff.
As a result of these changes, institutions will need to review their existing policies and procedures on free speech and consider the practical implications of the new legal framework. Existing Codes on freedom of speech will need to be reviewed and updated to reflect the new requirements under the Act. Another important dimension is the introduction of a duty to promote freedom of speech on campus which will require proactive measures and action, including the review of existing policies and practices.
Anything else?
There will, of course, be other matters HR will need to consider. This year we have delivered training for IHE members on the duties to provide training for staff development, mental health and wellbeing in the workplace, and on the responsibilities on providers in respect of remote working. All of these will remain important in 2024.
Other areas where we are likely to see developments, which will be of particular interest to the sector, are in the entitlement to holiday pay, the process to follow when changing terms and conditions, and the law on minimum service levels during strikes.
To view the recordings of HR updates delivered by Eversheds Sutherland to IHE members during 2023, please email [email protected].
Robert Gray
Robert specialises in providing advice to the higher education sector and is a member of the senior management team for the firm’s national education practice. He leads the firm’s education employment team in the North West but his network of clients extends across the UK and beyond.
Robert regularly advises institutions across a full spectrum of contentious and non-contentious employment law issues. This includes: restructuring and redundancy and outsourcing exercises; contracts of employment, including atypical contract models; international and cross-border staffing issues; HE governance matters; equality and discrimination law issues, including tensions between equality legislation and rights of freedom of expression and academic freedom; and the conduct of complex, multi-day employment tribunal claims.
Robert is recognised by Legal 500 for his legal expertise in the education sector.