Highlights in this edition include: an update on flexible working developments, the duty to make reasonable enquiries when making reasonable adjustments for disabilities, the new right to request a predictable working pattern and the consequences of refusing time off for trade union duties. We also cover the increase to civil penalties for employing illegal workers and the latest developments with Home Office compliance visits.
Employment: To The Point (September 2023)
Flexible working – a balancing act
Where employees should be working remains a huge area of focus for employers. A significant number now want to be more directive, requiring office attendance on a set number of days per week. Real estate considerations play a role in this – if employers are retaining expensive premises they want employees to use them. However, it is not all about imposing requirements. Employers are also considering what will encourage employees into the workplace, and how they will use the space while they are there.
With employers having a more rigid approach, an increased number of flexible working requests are likely and employers need to be prepared, including considering how to balance competing requests. Indeed, ACAS has recently closed its consultation on its draft Code of Practice on handling flexible working requests. It will be interesting to see how Tribunals view arguments about requirements to attend the office on a set number of days per week. It would be unfortunate if these requirements came at the expense of more litigation in this area, or a loss of flexibility that allows employees to balance work and home lives and potentially extends work opportunities to a broader and more diverse group of people.
Editorial by Sarah Harrop
Flexible Working: Is it all change?
New measures are being introduced giving employees additional rights to make flexible working requests. Read about the proposed changes
Reasonable adjustments: are you making "reasonable enquiries"?
In the recent case of AECOM Ltd v Mallon the Employment Appeal Tribunal held that an employer was under a duty to make reasonable adjustments where the requirements for its online job application form put an applicant with dyspraxia at a substantial disadvantage. Read our thoughts on the case
UK Immigration: How compliant are you?
Recent immigration developments include the proposed increase to civil penalties issued to those who employ illegal workers and a noticeable rise in the number of Home Office compliance visits being undertaken. Our update takes a closer look at these latest issues. Take a look at these latest issues
International: The new Oman Labour Law – What you need to know
The new law in Oman introduces several significant changes relating to employment including, amongst other things, extended leave entitlements, increased overtime rates and the introduction of redundancy as a permitted reason for termination. Find out what it means for businesses affected.
What else you should know
- Find out about new guidance on Alternative Dispute Resolution in the Employment Tribunals (England and Wales only).
- We look at the learning points and consequences for refusing time off for union duties in Trade unions: tribunal award for refusing time off to union rep
- Workers and agency workers will be given the right to request a predictable work pattern under the Workers (Predictable Terms and Conditions) Act 2023.
The Workers (Predictable Terms and Conditions) Bill received Royal Assent on 18 September 2023 becoming the Workers (Predictable Terms and Conditions) Act 2023. This new legislation addresses one of the key recommendations of the Taylor Review in 2017 which was to introduce measures to address the problem of "one-sided flexibility". That is where a worker has no guarantee of work but is expected to be available at very short notice when required.
Under the Act workers and agency workers will have the right to request a predictable work pattern in circumstances where:
- there is a lack of predictability as regards any part of their work pattern and
- the change relates to their work pattern and
- the purpose in applying for the change is to get a more predictable work pattern. Fixed term contracts of 12 months or less are presumed to lack predictability.
The Act allows for two applications to be made in a twelve-month period and employers will be able to reject applications on statutory grounds. Workers and agency workers will have the right not to suffer a detriment short of dismissal for making an application and it will also be automatically unfair to dismiss an employee for making an application. Regulations will be required to introduce a minimum service requirement (expected to be 26 weeks) to access the right.
The right to request a predictable work pattern is separate from a right to request flexible working. This is made clear in the draft ACAS Code of Practice on flexible working requests. The draft Code refers to predictable working requests and sets out that employees may have a separate right to request a predictable work pattern and may wish to follow the procedure for requesting a predictable work pattern set out in a new ACAS Code of Practice (yet to be published but expected in draft this Autumn). It also explains that employees will only be able to have one live request either for flexible working or for a predictable work pattern with the same employer at any one time.
The Act and secondary legislation are expected to come into force in September 2024.
- For our latest Horizon Scanner covering all the latest legislative developments and forthcoming cases in employment law, visit our website page
We are delighted to announce our Autumn HR Breakfast Seminars for HR professionals, taking stock of recent and future employment law developments and providing expert insight and practical guidance on the latest issues. You can find more information and register for the events
For more information on that and all our upcoming training events please visit our Employment and Immigration Group Training Calendar page on our website
New UK proposals on D&I and non-financial misconduct in the financial sector
National Minimum Wage increases: Beware compliance pitfalls
UK immigration: Sponsor update and industrial action – when and what do sponsors need to report?
Autumn HR Breakfast Seminars for HR professionalsRegister your interest
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