GFTU Emplaw Monthly - August 2023
NEW FROM OUR AUTHORS
Strikes Bill on Minimum Service Levels Becomes Law
This article from Lewis Silkin considers the passing of the controversial strikes (Minimum Service Levels) Act 2023 and the next steps.
Employment Essentials, The 2023 Mid-Year Report: Part One - Legislation
Would you like a recap of the employment laws that have been passed, consulted on, or guidance has been issued on, as of early July 2023? This article by Gowling WLG provides just that.
Employment Essestials, The 2023 Mid-Year Report: Part Two - Cases
Would you like a recap of the key cases so far this year and their significance? This article by Gowling WLG provides just that.
EMPLOYER/ADVISOR NEED TO KNOW
Flexible working updates
The Employment Relations (Flexible Working) Bill has received Royal Assent (but is not yet in force), Acas is consulting on updating its Code of Practice and the Government is consulting on non- statutory flexible working. The expected change to make the right to request flexible working a day one right is not included in the Act.
The Employment Relations (Flexible Working) Act has received Royal Assent, but the government has announced that it is not expected to come into force for about a year. For background information on the Act see Emplaw Monthly January 2023 . For the current law and practice around Flexible Working requests, see Emplaw Law Card on Flexible Working (full content available to subscribers only).
The Employment Relations (Flexible Working) Act is a short piece of legislation which amends sections 80G (right to request contract variation) and 80F (employer’s duties in relation to such an application) of the Employment Rights Act 1996 (ERA), in the following respects:
- When making a request, an employee’s application currently must state that it is a flexible working request, specify the change applied for and the date on which it is proposed the change should become effective and explain what effect, if any, the employee thinks their requested change would have on the employer and how any such effect might be dealt with. Section 1 of the Employment Relations (Flexible Working) Act removes that latter component so that the employee does not need to explain the effect of their application.
- Currently an employee is only allowed one request in any 12-month period. Section 1 of the Employment Relations (Flexible Working) Act increases that limit to two and provides that it will not be possible to make a further application while another application to the same employer is already proceeding.
- Section 80F of the ERA currently provides that, in relation to a flexible working application, the employer must deal with the application in a reasonable manner, must notify the employee of the decision on the application within the decision period, and only refuse the application because it considers that one or more of the listed grounds applies (e.g., burden of additional costs). Section 1 of the Employment Relations (Flexible Working) Act does not amend these grounds but does:
- Insert a duty to consult the employee about the application (practically most employers would be advised to do so currently in any event)
- Amend the time for an employer to make a decision from the current three months to two months (although it will remain open for the parties to agree a longer period).
These amendments will apply in respect of an employee's entitlement to make a request, and any request that they make once Section 1 of the Employment Relations (Flexible Working) Act comes into force. In determining the number of requests an employee has made during a 12-month period, a request made before section 1 comes into force (and during that period) will be included.
Much of the publicity around the Act refers to the right to request flexible working becoming a "day one" right but that is not covered by the Act and will require secondary legislation. The government has announced that it expects the Act and secondary legislation to come into force in approximately a year's time, to give employers time to prepare.
Since 2014, an important part of the request for flexible working regime has been the Acas Code of Practice on Handling in a Reasonable Manner Requests to Work Flexibly and the Acas guidance which currently covers Making a Flexible Working Request and Responding to a flexible working request.
On 12 July 2023, Acas issued a consultation on an updated statutory Code of Practice (and stated that it will update its guidance too) to reflect the changes introduced by the new Act and ‘to strengthen the Code's good practice message by:
- extending the categories of those individuals who may accompany an employee at meetings to discuss a request.
- providing guidance that employers should set out such additional information as is reasonable to help explain their decision.
- providing guidance that employers should allow an appeal where a request has been rejected.’
The consultation closes on 6th September.
Government consultation on non-statutory flexible working
This consultation seeks views from individuals and businesses on their experiences of non-statutory flexible working and how it operates in practice. Responses received will help to develop the government’s evidence base on non-statutory flexible working and inform its flexible working strategy moving forwards.
The consultation closes on 7th November.
Minor changes to paternity leave announced
In a belated response to the 2019 consultation on Parental leave and pay, the government has announced tweaks to the paternity pay regime to give fathers and partners a little more choice and flexibility around how and when they take their entitlement. The Response also confirms that no changes are proposed to shared parental leave and unpaid parental leave.
The 2019 consultation (see Emplaw Monthly September 2019) took place following publication of The Good Work Plan (the government’s proposals to take forward some of the recommendations in the Taylor Review of Modern Working Practices).
The changes now announced are to statutory paternity leave only and provide:
- A choice to take statutory paternity leave in either one block of two weeks or two separate blocks of one week's leave (currently the leave can be taken either as one week or two consecutive weeks of leave). The current overall entitlement of two weeks' leave is unchanged.
- A choice to take the leave at any time within 52 weeks of birth/placement for adoption. (Currently the leave must be taken within the first eight weeks after birth / placement for adoption).
- A change to the notice requirements for taking the leave. The government is proposing to allow individuals to give their notice of entitlement 15 weeks before birth and give 28 days' notice before the dates that they intend to take each period of leave (and pay, where they qualify). Currently individuals are required to notify their employer of their leave dates 15 weeks before the expected week of childbirth unless this is not reasonably practicable, and the start date can be changed by giving 28 days' notice.
These changes will be introduced via secondary legislation which will be introduced in ‘due course’ but this is unlikely to be before April 2024.
The Response also confirms that no changes are proposed to shared parental leave and unpaid parental leave although the consultation response has been informed by the recently published Shared Parental Leave (SPL) evaluation report which assesses whether the implementation of Shared Parental Leave achieved its original objectives.
Gender pay gap: enforcement
The Equality and Human Rights Commission has published the names of employers that have failed to report their gender pay gap data for 2022-23 and updated its information on what they do in response to organisations who don't follow the rules. The EHRC website also has very useful guidance on Gender Pay Gap Reporting.
Changes to UK Immigration Rules
The government has introduced changes to the immigration rules which include access to the EU Settlement Scheme, restrictions on student visas and updates to the Shortage Occupation List.
- Removing the ability for international students to switch out of the student route into work routes and start work before completing their studies.
- Adding certain jobs to the shortage occupation list including construction and building trades not elsewhere classified and jobs in the fishing industry not elsewhere classified.
- Removing the right for international students, to bring dependant family members from 1 January 2024, on courses starting on or after 1 January 2024, to the UK, unless they are on postgraduate courses currently designated as research programmes.
Response to consultation on mandatory ethnicity pay gap reporting
The government has published its response to the mandatory ethnicity pay gap reporting consultation which took place back in 2018. The response is belated not only in time, but also in events given that guidance on Ethnicity Pay Gap Reporting was issued earlier this year (see Emplaw Monthly May 2023).
Not surprisingly therefore, the Response makes clear that the government will not be legislating to make ethnicity pay gap reporting mandatory "at this stage" and employers should instead have regard to the April 2023 guidance.
Some 321 responses to the consultation were received and these showed:
- 91% of employers and business organisations were supportive of ethnicity pay reporting to some extent, as were the majority of individual respondents.
- Nearly all employers and business organisations agree that a standardised approach to classifications of ethnicity should be used to ensure data is consistent, meaningful, and comparable across organisations and over time.
- There was a clear message in the responses that employers wanted to see alignment, where possible and appropriate, between mandatory ethnicity pay reporting and existing arrangements for gender pay reporting.
- there was a strong sentiment that the government should ensure employees' data sharing remains voluntary but positively encouraged through clear communications by both business leaders and government.
Consultations aimed at improving occupational health investment and services
The government has published two consultations, one from DWP on ways to increase uptake of Occupational Health provision, and one from the Treasury considering tax incentives to support occupational health services. Both close on 12th October.
The purpose is to encourage employers to do more to keep workers healthy and reduce the numbers out of work due to long-term sickness.
The proposals from the Department of Work and Pensions (DWP) include introducing a baseline for quality Occupational Health provision. The consultation document includes interesting information on international comparators and seeks views on whether, as in some other countries, a legislative framework setting out clear requirements for employers should be introduced.
The consultation from the Treasury asks if expanding existing Benefits-in-Kind tax reliefs already available for certain occupational health services or introducing new ones could be an effective lever to achieve greater Occupational Health provision, and also asks for thoughts on any alternative tax incentives.
The consultations follow the Chancellor’s announcement in the Spring budget that the government would encourage more occupational health services including consulting on ways to boost UK occupational health coverage (see Emplaw Monthly April 2023) as well as the Transforming Support: The Health and Disability White Paper published in March 2023.
Disability Action Plan consultation
The government's Disability Unit and Equality Hub has launched a consultation, closing on 6th October 2023, on what should be in the 2023 to 2024 Disability Action Plan. The commitment to such a Plan was set out in the Transforming Support: The Health and Disability White Paper published in March 2023 (see Emplaw Monthly April 2023).
The consultation document explains that the Plan will set out the immediate actions the government will take in 2023 and 2024 to improve disabled people’s lives, as well as laying the foundations for longer-term change. A draft plan is not provided alongside the consultation document but rather the responses to the consultation questions will inform the final content of the Plan.
The proposed Plan is separate from the government's National Disability Strategy (see Emplaw Monthly End of Summer 2021) which was subject to litigation but has recently been declared lawful by the Court of Appeal.
LITIGATION AND LEGISLATION
Strikes (Minimum Service Levels) Bill receives Royal Assent
The Act, which gives the Business Secretary new powers to introduce regulations specifying minimum service levels required during periods of strike action in a number of public services, including health, fire and rescue, education and transport, received Royal Assent on 20 July 2023.
The minimum service levels will not come into force in a particular sector until secondary legislation has been passed by Parliament. The government has confirmed that they will now proceed with plans to implement minimum service levels for passenger rail services, ambulance services and fire and rescue services. There were consultations earlier in the year over minimum service levels in these sectors (see Emplaw Monthly April 2023), and the government has confirmed it will respond to those consultations "in due course".
Government will also launch a public consultation on a Code of Practice covering the reasonable steps unions should take to ensure their members comply with a work notice given by an employer.
It is notable that the Strikes (Minimum Service Levels) Bill and other factors such as the pay disputes between the government and public sector workers recently led to the UK's rating in The International Trade Union Confederation's annual Global Rights Index being downgraded from a three to a four, on a scale of one to five, indicating a "systematic violation of rights".
Regulations allowing agency workers to cover striking workers quashed by High Court
From 10 August 2023, regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, which makes it unlawful for an employment business to supply temporary workers to employers to cover employees involved in industrial action, are back in force.
The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022, which came into force in July 2022, revoked the ban, contained in Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, on agency workers being brought in to take the place of striking workers. However, in December 2022, the High Court granted permission for a judicial review of the amendment regulations (see Emplaw Monthly January 2023).
The unions argued that:
• The Secretary of State had failed to comply with his duty to consult under section 12(2) of the Employment Agencies Act 1973 before making the Amendment Regulations.
• The revocation of regulation 7 amounted to unlawful interference with the rights of trade unions under Article 11 of the European Convention on Human Rights (ECHR).
The court agreed that the Secretary of State had failed to comply with his duty to consult and having upheld the challenge on this basis, the court did not consider the arguments that the Amendment Regulations were a breach of Article 11.