Thu 01 Dec 2022

Employment Law Round Up - December 2022

Our monthly employment law round up.

Changes to Flexible Working Requests Process

The UK Government has published its response to the consultation on updating flexible working laws.  As anticipated the right to request flexible working is to become a day one right (currently it is only available to employees with 26 weeks or more continuity of service).  The Employment Relations (Flexible Working) Bill (a Private Members Bill ("PMB") that has UK Government backing) has also been published, and this largely reflects the other changes set out in the response to the consultation.  The Bill provides for employees making two flexible working requests per year rather than one, requires consultation with the employee on any alternatives before a request is refused, removes the requirement for employees to explain in the request the effect they think it will have on their employer, and reduces the timeline for an employer's decision from three to two months.   There is to be no change to the list of eight reasons available to employers for refusing a request.

Protection from Sexual Harassment

Another PMB, the Worker Protection (Amendment of Equality Act 2010) Bill, has also gained UK Government backing and will legislate for the introduction of the duty on employers to prevent sexual harassment in the workplace and the re-introduction of protection from third party harassment.  The duty to prevent harassment applies only to sexual harassment, whereas the protection from third party harassment applies to all protected characteristics.  Prior to the third party harassment provisions of the Equality Act being repealed in 2013, employers would only be liable for it if there had been two or more instances of third party harassment.  Under the new proposals employers will be liable from the first instance where they have failed to take reasonably practicable steps to prevent it

Employment Bill

Yet more PMBs are being used to legislate for measures first set out in the Employment Bill in the 2019 Queen's Speech.  The Carer's Leave Bill will introduce a flexible entitlement of one week's unpaid leave for employees providing or arranging care.  The leave will be a day one right.  Employees using the right will be protected from dismissal or detriment in consequence of having taken the time off. 

The Protection from Redundancy (Pregnancy and Family Leave) Bill will amend the Employment Rights Act 1996 to enable the Secretary of State to make regulations providing protection from redundancy "during and after" periods of relevant leave.  It also introduces a new provision allowing the Secretary of State to make regulations about redundancy "during or after" a "protected period of pregnancy".  The detail of the rights will be provided by the subsequent regulations but it is intended to provide additional protection in the event of a pregnant employee's role being made redundant or their role being made redundant during maternity leave or during a period following their return from work.

Data protection: ICO information about workers' health guidance

The ICO has opened a consultation on its information about workers health guidance.  The draft guidance covers topics including lawful processing of health information, how long information should be held for, and what the worker needs to be told when their health information is being processed. It also covers handling sickness and injury records, the use of occupational health schemes, medical examinations and testing and health monitoring.  The consultation is open until 11 January 2023.

New report highlights lack of workplace support for fertility issues

A report published by Fertility Network UK has highlighted a lack of support in the workplace for those experiencing fertility issues.  Currently there is no statutory right to pre-conception care so many workplaces have not implemented any relevant policies or guidance.  The report found that although 77% of respondents disclosed they were undergoing treatment to their employer, only 47% had reasonable adjustments made, only 45% felt they received really good support from their employer and only 25% reported the existence of a supportive workplace policy.  Sadly, 58% were concerned their treatment would affect their career prospects, 36% felt their career had been damaged and 15% either reduced their hours or left their job.

Extension of ban on exclusivity clauses to low income workers

The Exclusivity Terms for Zero Hours Workers (Unenforceability and Redress) Regulations 2022 were made in early November and came into force on 5 December 2022. The Regulations extend the ban on exclusivity clauses in employment contracts to employees and workers earning no more than the lower earnings limit (currently £123 per week).  It will be automatically unfair (so no qualifying service is required to make a claim) to dismiss an employee or to subject a worker to a detriment if they breach an exclusivity term in their contract.  Exclusivity terms are defined as any provision or purported provision of a contract that "(a) prohibits the worker from doing or performing services under another contract or under any other arrangement, or (b) prohibits the worker from doing so without the employer's consent".

Racism at work in the UK

Further evidence of the continuing problem of racism in the workplace has been provided by a new report Racism at Work in the UK.  Based on a survey of white, black and Asian employees, participants were asked about perceptions and experiences of racism at work and the actions their employers had taken to combat it.  74.8% considered racism to be a problem in the workplace with black respondents being 15.1 times more likely than white respondents and 1.9 times more likely than Asian respondents to experience racism in the workplace.  Despite 49.7% of respondents working for employers who had taken action to promote greater racial equality at work, the results suggested the likelihood of experiencing racism for black and Asian respondents had increased during the preceding three years.

Minimum service levels in transport strikes

The Transport Strikes (Minimum Service Levels) Bill has been introduced to Parliament.  If passed it will enable employers to ensure minimum service levels in specified transport services during strikes.  To achieve this, employers and unions may enter a minimum service agreement.  If after three months the parties have been unable to reach agreement the matter will be referred to the Central Arbitration Committee which will then make a minimum service determination.  In the absence of both an agreement or a determination, the Secretary of State may set minimum service levels.  Where a union fails to take reasonable steps to ensure the workers identified by the employer as being required to work to maintain the minimum service levels do not take part in the strike, the union will not be protected from legal action by the employer. It remains to be seen whether this Bill will become law.

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