As usual, the weeks before the Summer Parliamentary recess have seen a flurry of consultation announcements and legislative progress. Our round-up is below:
Legislation
- Reforms to right to request flexible work: The Employment Relations (Flexible Working) Bill received Royal Assent on 20th July 2023. It requires regulations to be implemented, but once in force will:
- allow employees to make two (rather than one) flexible working requests in any 12 month period (but there can only be one live application at a time),
- require employers to consult before refusing a request,
- require employers to make their decision within two rather than three months (unless an extension is agreed), and
- remove the requirement that the employee must explain in the statutory request what effect the change would have on the employer and how that might be dealt with.
The Act does not include any detail on the new consultation requirement, but the general obligation to deal with a statutory request “in a reasonable manner” remains. Further detail of what may be required (depending on the circumstances) is set out in the draft updated Statutory Code recently published for consultation by Acas until 6 September 2023. Tribunals will be required to take the Code into account where relevant. See here for further details.
- Proposed harassment law watered down: the Worker Protection (Amendment of Equality Act 2010) Bill is currently at the Report stage of the House of Lords. The Bill originally provided for the introduction of employer liability for harassment of employees by third parties and a new proactive duty to take all reasonable steps to prevent sexual harassment in the workplace. Although these were both included in earlier government proposals, concerns about freedom of speech have led to the House of Lords amending the Bill to remove the third party liability provision and dilute the proactive duty to an obligation to take reasonable steps to prevent sexual harassment in the workplace (rather than “all reasonable steps”). It appears that the Government will support these amendments in the Commons. Breach of the new duty will not give rise to a separate tribunal claim, but compensation for a sexual harassment claim (under the current law, where the employer defence to vicarious liability still requires the taking of all reasonable steps) could be uplifted by up to 25% if there is a breach of the duty to take (some) reasonable steps. An employer could also be subject to enforcement action by the EHRC for breach of the new duty.
- Changes to paternity rights: the Government has finally published its response to a 2019 consultation confirming that it does not currently intend to make any changes to shared parental leave and pay, maternity leave and pay and unpaid parental leave. The only changes proposed are to give employed fathers and partners more flexibility around when they take paternity leave (allowing this to be in two separate weeks and at any time in the first year from birth) and reducing the notice required. Regulations will be introduced “in due course”.
- New form of ADR for employment tribunal claims: Updated Presidential Guidance has introduced a new form of ADR for more complex claims. The Dispute Resolution Appointment (DRA) will be evaluative and mandatory (with potential costs consequences for failure to attend) where a judge considers it appropriate (unless a party can persuade the judge otherwise). They are intended for cases with a listing of at least six days, although there is likely to be regional variation in their use. See our post here for more details.
- Strike law permitting use of agency workers quashed: the High Court has allowed a judicial review challenge to the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 on the basis that the Secretary of State had failed to comply with his duty to consult before making the regulations. The Court made an order quashing the regulations with effect from 10 August 2023. From this date employment businesses will no longer be able supply temporary workers to employers to cover those involved in industrial action. The Strikes (Minimum Service Levels) Bill has also received Royal Assent, but will require secondary legislation to be brought into force.
Consultations
- The Government is consulting until 6 October 2023 on its Disability Action Plan 2023-2024. One proposal is to develop a “Disability Enabled” badge to encourage businesses to provide disability awareness training to their staff.
- The Government is consulting until 12 October 2023 on measures to increase employer uptake and widen the reach of Occupational Health and a new national “health at work” standard for businesses to adopt (see here). A separate consultation looks at options to increase investment in Occupational Health services through tax incentives.
- The Government has launched a review into the effectiveness of the whistleblowing framework. The evidence-gathering stage will end in Autumn 2023. The policy paper states that the review will examine evidence related to the definition of worker for whistleblowing protections, but there is no other indication of what potential reforms might be considered.
- A Government consultation response published in 2019 set out proposals to legislate on the use of confidentiality clauses in settlement agreements and employment contracts “when Parliamentary time allows”. In May 2023 the Justice Minister commented that the government was planning its next steps carefully. Meanwhile the Legal Services Board issued a call for evidence (ending on 14 July 2023) on the role that lawyers’ conduct can play in the misuse of NDAs. It expects to publish its conclusions and any proposals later in 2023.
- The Government has published a Call for Evidence from individuals and employers, open until 7 November 2023, on their experience of non-statutory flexible working, in particular for examples of best practice. The consultation also seeks information on employer policies such as for compassionate or special leave.
New guidance/other resources
- The Great British Workplace Adjustments Survey 2023 published by the Business Disability Forum highlights limitations around the use of disability passports and occupational health and makes a number of useful recommendations to improve support for disabled employees needing reasonable adjustments in the workplace.
- The Government has announced the launch of a new review supported by the charity Autistica, to make recommendations to the Secretary of State in September 2023 on measures to support employers in recruiting and retaining autistic people. Alongside the review, Autistica are promoting awareness of the barriers faced by autistic people in the traditional interview process and have produced the Autistica Employers Guide to Neurodiversity with guidance on how to run inclusive interviews.
- The British Standards Institute has published a new code of practice on equality, diversity and inclusion in the workplace. It provides recommendations for practical steps that employers can take to help develop and implement an effective framework to support diversity, equity and inclusion in its workplaces.
- The British Standards Institute has also launched a new standard on menstruation, menstrual health and the menopause in the workplace, which sets out practical recommendations for workplace adjustments, as well as strategies to sit alongside existing well-being initiatives.
- The Government has published guidance for employers on helping individuals return to work, covering key considerations, how to design a return to work programme, and how to effectively conduct and deliver the programme.
Please do get in touch with your usual HSF contact if you would like to discuss any of these developments in more detail.
For further information, please contact:
Anna Henderson, Herbert Smith Freehills
anna.henderson@hsf.com
