Worker Rights Changes (UK)

We don’t advise on Employment Law, however the UK Government has made the following announcements that are tangential to the EHS law documents we supply to clients., and of interest.

(1) Workers (Predictable Terms and Conditions) Act 2023 – this document will amend the Employment Rights Act 1996 to give workers and agency workers the right to request more predictable terms and conditions of work. The document is here.

Note the EU has a 2019 Directive conferring similar rights. Member states were required to implement this Directive by 1 August 2022. More details are here.

Royal Assent for the UK Act was given on 19th September 2023, but the provisions are not expected to be commenced for another year.

(2) Changes to the Working Time Regulations and TUPE – the Government had earlier in 2023 consulted on three areas for change –

• Record keeping requirements under the Working Time Regulations
• Simplifying annual leave and holiday pay calculations in the Working Time Regulations
• Consultation requirements under the Transfer of Undertakings (Protection of Employment), or ‘TUPE’, Regulations

The Government also launched a consultation in January 2023 on calculating annual leave entitlement for part-year and irregular hours workers.

Announcement today 8th November confirms these proposals will be taken forward. We supply the Working Time Regulations in client systems, and will supply the updated text once the relevant Statutory Instruments are issued.

(3) Sky (news) reported yesterday “The government has announced plans to reinstate EU equality laws before they expire at the end of the year”

According to Sky – the protections being retained include the ‘single source test’ test, which gives women the right to equal pay with men for doing work of equal value, and preventing women from experiencing less favourable treatment at work because they are breastfeeding.

Other laws being retained include:

• Protecting women from unfavourable treatment after they return from maternity leave, where that treatment is in connection with a pregnancy or a pregnancy-related illness occurring before their return;

• Ensuring that women can continue to receive special treatment from their employer in connection with maternity, for example through enhanced occupational maternity schemes;

• Confirming that the definition of disability in the context of employment will explicitly cover working life;

• Holding employers accountable if they create or allow discriminatory recruitment conditions, such as if they make public discriminatory statements about access to employment in their organisation;

• Providing explicit protections from indirect discrimination by association, so that those who may be caught up and disadvantaged by discrimination against others are also protected.

These are currently EU Treaty equality rights. Unless retained by Statutory Instrument (SI), all EU Treaty rights are extinguished at the end of this year (the REUL Act).

Once the SI has been published, we will note it on the Removal of EU-Era Law tracker list on client systems.

Environmental Outcomes Reports (UK)

In March 2023 DLUHC (the Levelling Up Government Department) issued a document (for consultation) on its proposed new Environmental Outcomes Reports regime (England). The document is here.

The March 2023 document identified that the Levelling Up and Regeneration Bill would be seeking powers to replace the current processes set out in EIA and SEA Directives (EU-era laws) with a new system of Environmental Outcomes Reports (EORs).

The Levelling-up and Regeneration Act 2023 is now enacted, and includes the powers to create the Environmental Outcomes Reports regime (Part 6, ss 152-167).

Note, the sections are not commenced.

Section 158 and Schedule 13 contains restrictions on the exercise of powers under Part 6 by devolved authorities.

Section 164 deals with the interaction between the EOR Regulations that may be made under Part 6 and the existing EIA and SEA Regulations and the Habitats Regulations.

Section 164(1) – EOR Regulations may make provision about, or in connection with, the interaction of Part 6 with existing environmental assessment legislation or the Habitats Regulations.

Section 164(3) – EOR Regulations may amend, repeal or revoke relevant existing environmental assessment legislation.

Note section 164(3) does not mention the Habitats Regulations. As identified in the DLUHC document “The Bill does not include powers to reform assessment under the Habitats Regulations. The powers in Clause 149 (Interaction with existing environmental assessment legislation and the Habitats Regulations) mirror the position under the current system to allow for co-ordination between the processes and joint working, with a view to avoiding duplication.”

Clause 149 became Section 164 in the Act.

EOR Regulations will be added to client systems, when Part 6 is commenced and the Regulations are issued. It is expected further consultation will take place, as there is little information in the public domain on the shape of the EOR Regulations.

New EU Energy Efficiency Directive (EU)

The EU has revised its existing Energy Efficiency Directive, here.

Member states must implement the revisions by 11th October 2025.

The revised directive expands the scope of energy audit obligations to include all those companies, regardless of their size, which are consuming energy above a certain threshold. Therefore, small and medium-sized enterprises (SMEs) would also have to carry out an energy audit, where there is significant energy saving potential.

The revisions also make energy management systems a mandatory requirement for large industrial energy consumers to monitor and optimise their energy efficiency.

Also, under the revised directive, EU countries will need to ensure an appropriate level of competence for energy efficiency related professionals, aligning them with market needs and enforcing clearer and stricter requirements for the necessary competencies. This includes energy service providers, energy auditors, energy managers and installers.

Detail – Article 11

Para 1 Member States shall ensure that enterprises with an average annual consumption higher than 85 TJ of energy over the previous three years, taking all energy carriers together, implement an energy management system. The energy management system shall be certified by an independent body, in accordance with the relevant European or international standards.

Member States shall ensure that the enterprises referred to in the first subparagraph have an energy management system in place at the latest by 11 October 2027.

Para 2 Member States shall ensure that enterprises with an average annual consumption higher than 10 TJ of energy over the previous three years, taking all energy carriers together, which do not implement an energy management system are subject to an energy audit.
Such energy audits shall be either:
(a) carried out in an independent and cost-effective manner by qualified or accredited experts, in accordance with Article 28; or
(b) implemented and supervised by independent authorities under national legislation.

Please read the rest of Article 11.

New EU Asbestos Exposure Limit (EU)

In October 2023, the European Parliament adopted a replacement asbestos directive, already agreed with member states, that will decrease the occupational exposure limit of asbestos.

The occupational exposure limit (OEL) will be ten times lower – the limit value will be decreased from 0.1 to 0.01 fibres of asbestos per cubic centimetre (cm³), without a transition period.

After a maximum transition period of six years, member states will be obliged to switch to more modern and sensitive technology that can detect fibres, namely electron microscopy. They will then have the option to either decrease the level to 0.002 fibres of asbestos per cm³ excluding thin fibres, or to 0.01 fibres of asbestos per cm³ including thin fibres.

The new rules also include new requirements to protect workers more robustly. They will have to wear individual protective and respiratory equipment, clothing will have to be cleaned safely, there will be a decontamination procedure, and high-quality training requirements for workers.

The next step is formal endorsement by the Council, before publication in the EU Official Journal and entry into force.

Details are here.

This post will be updated with the link to the new Asbestos Directive, when it is published. [a post update does not result in a new email notification]

New US EPA Rule on PFAS (US)

The US has rules on PFAS – details are here.

In October 2023, the Environmental Protection Agency (EPA) is adding per- and polyfluoroalkyl substances (PFAS) subject to reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA) pursuant to the National Defense Authorization Act for Fiscal Year 2020 (NDAA) to the list of Lower Thresholds for Chemicals of Special Concern (chemicals of special concern). These PFAS already have a lower reporting activity threshold of 100 pounds.

This new rule is effective November 30, 2023 and applies for the reporting year beginning January 1, 2024 (reports due July 1, 2025).

Manufacturers, processors and users of listed PFAS or any chemicals listed under 40 CFR 372.28, may be potentially affected.

The rule is here. Readers are advised to check the industry codes listed.