Employment Law Updates for July 2023

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We have set out below a roundup of recent employment law developments that employers may be interested in. We will keep you up to date with developments in these areas.

The Employment Relations (Flexible Working) Act 2023

The Employment Relations (Flexible Working) Bill has recently received royal assent, becoming the Employment Relations (Flexible Working) Act 2023. This legislation makes changes to the current flexible working regime.

The main changes contained within the legislation are:

  • Employees now have the opportunity to submit up to two flexible working requests within a 12-month period, rather than only one.
  • Employers are obligated to respond to requests within 2 months of receiving them, unless both parties mutually agree to an extension. This is reduced from 3 months.
  • Employers must consult with an employee before they reject a flexible working request although the Act does not state what steps the employer will be obliged to take to meet this obligation.
  • The Act has also removed the need for employees to explain what effect, if any, the flexible working request applied for would have on the employer and how that effect might be dealt with.

It had been widely assumed that the Act would establish the right for employees to make a flexible working request from Day 1 of their employment. This is not the case. The Act itself does not grant employees a day one right to request flexible working and the Government have promised to deliver this by secondary legislation. As it stands, employees are still required to have completed 26 weeks’ of service before becoming eligible to make a flexible working request.

The Government has indicated that the Act and secondary legislation will come into force in approximately a year’s time, to give employers time to prepare. ACAS also has plans to issue an updated Code of Practice to assist employers in meeting their obligations which is currently subject to consultation.

New entitlements for parents and carers

Three Government backed private members’ bills also received Royal Assent in recent weeks. The Neonatal Care (Leave and Pay) Act 2023, Carer’s Leave Act 2023 and Protection from Redundancy (Pregnancy and Family Leave) Act 2023 provide the statutory framework for the introduction of new workplace protections for eligible employees.

The Acts provide for:

  • Up to 12 weeks’ paid neonatal care leave for parents whose children are admitted to neonatal care, so that they can spend more time with their baby at a difficult time. This entitlement is in addition to current family leave entitlements and is expected to come into force after secondary legislation is implemented in April 2025.
  • Up to one week’s unpaid leave per year for employees caring for a dependant with a long-term care need. This is intended to enable carers to better balance their caring and work responsibilities.  Secondary legislation is required to bring these provisions into force which is not expected before April 2024.
  • An extension of existing redundancy protections whilst on Maternity Leave, Adoption Leave or Shared Parental Leave to also cover pregnancy and a period of time after a new parent has returned to work. Timescales for implementation of these new entitlements are not yet known.

New guidance from the Information Commissioner on data subject access requests

The Information Commissioner’s Office (ICO) has published new guidance for employers and businesses on responding to subject access requests (SARs).

The guide is a helpful tool for organisations in ensuring they comply with their obligations when responding to requests for personal data and includes a section of FAQ’s for businesses, addressing some of the issues which have caused difficulties for employers in recent years. This includes when the time limits for a response can be paused for the purposes of clarifying the request, when an employer can regard a request as manifestly excessive and dealing with subject access requests in the context of an employee grievance and/or employment tribunal claim.

The new guidance can be viewed here.

Importance of compliance – National Minimum Wage and National Living Wage

Last month, the Department of Business and Trade released the details of over 200 companies who had failed to pay staff the National Minimum Wage (NMW) or the National Living Wage (NLW). A number of high-profile UK retailers were included on the list that showed over 63,000 low-paid workers were underpaid a sum of approximately £5m.

The consequences of underpaying staff can be significant.  Employers can be required by HMRC to pay staff at the correct level (going back up to six years), to pay fines and can even face criminal charges.  Employment tribunal claims may also arise.  Additionally, HMRC’s current policy of “naming and shaming” non-compliant employers can have implications for an employer’s reputation which is less than ideal at a time where recruitment is a difficult area for many businesses.

The fact that large household names such as WH Smith have fallen foul of the requirements shows that it can be easy to misunderstand the requirements in the relevant legislation which is complex in some areas.  Common issues which have caused non-compliance include counting payments such as tips or allowances towards NMW when they should not be, uniform policies, recovery of training costs and not paying staff for time which is regarded as working time for NMW purposes such as travel between assignments and handover periods before a shift starts or after it finishes.

All employers would be well advised to review the arrangements for employees who are paid by reference to current NMW or NLW (or close to these sums) to ensure that their policies and procedures have not caused them to make mistakes in this area.  We can assist with audits of NMW and NLW practices.

Changes to immigration fees

The Government has announced its intention to partly fund public sector pay increases by raising immigration fees and charges as follows:

  • A 15% increase to work and visit visa fees.
  • At least a 20% increase to the cost of study visas, certificates of sponsorship, settlement, citizenship, wider entry clearance, leave to remain and priority visas.
  • An increase of over 65% to the Immigration Health Surcharge (IHS), from £624 to £1,035 per applicant per year of their visa. For a five-year visa, this means that the new IHS fee alone will be £5,175 per applicant.

It has not yet been announced when these increases will take effect, but employers who are reliant on migrant workers will need to consider the impact of these additional costs in the future.  Taylor Walton’s employment law team can assist you with any queries you may have on business immigration matters.

Lords dilute employer obligations to protect employees from harassment

At the end of last year we reported that the Worker Protection (Amendment of Equality Act 2010) Bill would bring back previously abolished employers’ liability for harassment of their employees by third parties, introduce a duty on employers to take all reasonable steps to prevent sexual harassment of their employees and makes provision for the enforcement of that duty.

In recent weeks the House of Lords has agreed amendments to two controversial provisions in the Worker Protection (Amendment of Equality Act 2010) Bill. The Lords have voted to:

  • Remove clause 1 of the Bill, which would have made employers liable for the harassment of employees by third parties in the course of employment.
  • Amend clause 2 of the Bill so that employers will be required to take “reasonable steps”, rather than “all reasonable steps”, to protect employees from sexual harassment in the course of employment.

The amendments have been made to enable the Bill to continue its passage through Parliament.  The Lords acknowledged concerns expressed by peers that the Bill would jeopardise free speech and increase the regulatory burden on employers.

At present there is no clear timescale as to when the provisions of the Bill will come into force.

If you have any questions about the topics covered in this article, or on any other employment law matters, please contact Taylor Walton’s employment team here.

Disclaimer: General Information Provided Only
Please note that the contents of this article are intended solely for general information purposes and should not be considered as legal advice. We cannot be held responsible for any loss resulting from actions or inactions taken based on this article.


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