Flexible working: day one right
The Employment Relations (Flexible Working) Act 2023 (“the Act”) received Royal Assent on 20 July 2023 but its enactment is expected to be delayed until next year.
The updated legislation introduces greater flexibility in several ways: employees can make two flexible working requests in any 12-month period (currently only one request is permitted); there is no longer a requirement for an employee to explain the effect of their request on their employer and how this may be mitigated; and employers must respond to an employee’s request within two months as opposed to the current three months. The new legislation also mandates that any rejected requests must be preceded by a consultation process with the employee.
Whilst the Act itself does not grant employees the right to ask for flexible working from day one, it remains the government’s intention to remove the 26-week qualifying period, which is likely to come about through secondary legislation. In a trailblazing move, Tesco has already implemented the right to request flexible working from day one for all its employees. We strongly recommend that employers address this issue in the light of post-pandemic changes to working patterns and an increase in the demand to work from home. Please contact a member of the team if you wish to review your flexible working policy in advance of the changes.
Protection against redundancy
The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 will require secondary legislation in order to give additional protection to pregnant women. This is unlikely to happen until next year so nothing will change in the immediate future and no timetable has been published. The proposal was to extend redundancy protection for pregnant employees from the time they inform their employer until six months after the end of their pregnancy or their return from maternity leave. Employers are advised to review their redundancy and pregnancy policies in advance of the anticipated changes.
Update to proposed sexual harassment legislation
The House of Lords has amended the Worker Protection (Amendment of Equality Act 2010) Bill so that employers will be obliged to take ‘reasonable steps’ to prevent sexual harassment at work rather than ‘all reasonable steps’. The third-party harassment provisions have also been removed. The bill continues its progress through Parliament.
Relaxation of paternity leave rules
The government consulted on the relaxation of paternity leave rules in 2019. It has finally published its response to the consultation findings and has indicated it intends to allow fathers or partners to take their two weeks’ leave in two separate blocks of a week each; leave to be taken within 52 weeks of the birth of their child (or placement for adoption) rather than 8 weeks as currently; and an adjustment and simplification of the notice requirements (please note that the requirement for the notice of intention to take leave will remain at 15 weeks before the expected week of childbirth/placement). No changes are planned to either shared or unpaid parental leave.
Sickness absence: new ACAS guidance
ACAS has updated its guidance on managing absence including holidays, sickness, and compassionate leave. It covers how to manage a return to work after a period of absence, keeping in touch during absence, and creating absence policies. New sections include recording and reducing sickness absence, and absence trigger points. You can read the full guidance here.
AI and employment law
The House of Commons Library has published a research briefing on AI and employment law. It notes that AI is currently used in three broad categories: recruitment; task allocation and performance management; and surveillance and monitoring. It notes that there are three areas of law that may restrict the use of AI: in the context of the employer / employee relationship based on mutual trust, employers must be able to explain their decisions where AI has been used to reach those decisions; the Equality Act’s protection against discrimination on ground of protected characteristics could be subverted by AI which can exhibit bias; and data protection law whereby ‘data subjects…have the right not to be subject to a decision based solely on automated processing’. This is an increasingly important area for HR and employment law professionals so we will be following this closely. You can read the briefing here.
Proposed cap on non-compete clauses
A government policy paper (“Smarter regulation to grow the economy”) outlines plans to cap the length of non-compete clauses to three months. No timeframe has been given or any indication on how a cap would apply to existing non-compete clauses, nor has comment been provided on what this would mean for existing non-compete clauses exceeding three months. It is currently difficult to enforce lengthy non-compete clauses anyway, although the test of ‘reasonableness’ depends on the individual circumstances.
For those of you who have signed up for the Ignite Portal, you’ll be pleased to see that some new features have been introduced including a ‘new look’ staff handbook; ‘Blocked holiday’ periods; customisation of sickness types; and updates to the bank holiday schedule to allow incorporation of international bank holidays. Dates have also been scheduled for maintenance of the SMS message software during September. For more information, please contact Kash Dosanjh or Gemma Clark from our Employment team.
Employee dismissed for expressing belief ‘in an offensive manner’.
Higgs v Farmor’s School
Ms Higgs worked in an administrative pastoral role at Farmor’s School, a Gloucestershire secondary school, and, as such, dealt with a range of pupils including several considered vulnerable. She had posted comments on her Facebook page criticising the government’s approach to making relationship and sex education compulsory in secondary schools and promoting same sex marriage and gender fluidity, a position that was directly contradictory to her Christian beliefs. A Farmor’s School parent alerted the school’s head to Ms Higgs posts, complaining that her views were offensively homophobic and transphobic.
Ms Higgs was suspended prior to an investigation in which she confirmed that she was neither homophobic nor transphobic but merely wished to bring to the attention of other parents at her son’s Christian primary school the government’s intention to ‘brainwash’ children. She held that her Christian belief that marriage was between a man and a woman was not tantamount to holding discriminatory views. Following a disciplinary hearing, Ms Higgs was dismissed for gross misconduct ‘on the balance of probability she could have held discriminatory views’. In response she brought a claim of discrimination on the grounds that her gender-critical views were a protected characteristic.
The Employment Tribunal found for the respondent, agreeing that Ms Higgs’ manifestation of her views were discriminatory against those with protected characteristics: “our view was that [Ms Higgs’s’] treatment was not because of the relevant beliefs and accordingly her claim of direct discrimination failed”. Ms Higgs’s claim for harassment was also dismissed by the Employment Tribunal - the judgement stated that the disciplinary process was “unexceptional” and that the Tribunal was not satisfied that “the conduct had either the purpose or effect of violating [Ms Higg’s] dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.”
Ms Higgs appealed, arguing that “it is not transphobic to have doubts about gender reassignment for children”. The Employment Appeal Tribunal allowed her appeal and remitted the case back to the Employment Tribunal as the latter should have applied the proportionality test in determining whether the right balance was struck between Ms Higgs’ right to express her Christian beliefs on the subject of same sex marriage and gender fluidity, and the ‘objectionable’ way in which they were expressed which may have caused offence. This is an important case in an increasingly sensitive area of law so we will report on the outcome of the Employment Tribunal’s determination when it is available.