Employment legislation update: Summer 2023

There have been a number of important developments regarding employment legislation in recent weeks. Here we summarise the key developments and what they mean for employers.

Employment Relations (Flexible Working) Act 2023

On 20 July 2023 the Employment Relations (Flexible Working) Bill received Royal Assent. It provides that:

• employees are able to make two flexible working requests in any 12-month period rather than being limited to one;
• employers must respond to flexible working requests within two months of receipt rather than three months;
• employers cannot refuse the request unless they have first ‘consulted’ with the employee; and
• employees no longer need to explain the effect of any flexible working request and how to mitigate that effect.

The Act does not make the right to request flexible working a ‘day one’ right. The current position is that employees are entitled to make a request if they have been employed for at least 26 weeks and this remains the position for now.

However, that is likely to change as it has been reported that the change to the service requirement will be brought in through secondary legislation. This may be introduced to coincide with the implementation of the provisions of the Act as that will also be subject to further Regulation. It will probably not be until July 2024 that the changes actually have any impact in the workplace.

In preparation, consideration should be given to policies concerning flexible work applications and whether any changes will be necessary.

The Strikes (Minimum Service Levels) Act 2023

On 20 July 2023 the Strikes (Minimum Service Levels) Bill 2023 received Royal Assent.

The Act provides that future Regulations may fix the minimum service levels in relation to health services, fire and rescue services, education services, transport services, nuclear decommissioning, and border security.

In practice, locally negotiated minimum service levels are usually agreed between unions and employers. However, when implemented, national minimum service levels may replace these.

Once a national minimum service level is set for a particular sector, an employer facing a strike in that sector can serve a ‘work notice’ on the union. The effect of a work notice – which will also be communicated to workers affected personally – will be to inform employees that if they do strike, they will lose protection against unfair dismissal.

The union once served with a work notice will be required ‘to take reasonable steps to ensure that all members of the union who are identified in the work notice comply with the notice.’ Failure to do so will mean the strike will be unlawful, unfair dismissal protection may be lost and the union may be liable for damages.

A new Code of Practice will outline the steps that will be required in order to comply with these requirements.

A number of unions have expressed their opposition to the provisions and challenges in the courts are expected.

Tips Code of Practice legislation implemented

On 31 July 2023, the Employment (Allocation of Tips) Act 2023 (Commencement No 1) Regulations 2023 brought a number of enabling provisions in the Employment (Allocation of Tips) Act 2023, relating to the issue of a statutory code of practice, into force. These enable the Secretary of State to issue a “Code of practice about tips etc.” that will be inserted into the Employment Rights Act 1996.

The Employment (Allocation of Tips) Act will require employers to fairly allocate tips over which they exercise control or significant influence and pay them to workers in full within a month of payment by the customer. Where tips are paid on more than an occasional and exceptional basis, an employer must have a written policy, available to all workers, setting out how qualifying tips are dealt with. Failure to comply with the statutory code of practice on the fair and transparent distribution of qualifying tips will be admissible in evidence in employment tribunal claims. A consultation on the code of practice is expected later this year. The Act itself will not be fully brought into force until May 2024.

EU Retained Law Parliamentary Briefing Paper

On 28 July 2023, the House of Commons Library published a research briefing, Retained EU Law (Revocation and Reform) Act 2023 which gives an overview of its main provisions and the Government’s change in approach to sunsetting during the Bill’s passage through Parliament.

It also explains how “assimilation” provisions will remove EU law concepts and terminology from domestic law after 2023 and confirms that at the end of 2023 retained EU law will be renamed assimilated law.

As regards the repeal of the general principles of EU law, the briefing observes that it is not clear what principles the courts will be expected to use instead of the retained general principles of EU law, when construing the meaning and effect of assimilated law. UK common law principles partly overlap with the EU general principles and would likely need to adapt to fill any gaps.

Permitted countries list published for evidence in Tribunal

On 1 August 2023, the Foreign, Commonwealth and Development Office (FCDO) published a list of countries permitting the taking and giving of evidence by video link from their territory for the purpose of UK tribunal cases.

If evidence is to be taken from a person in a country not on the list, the Tribunal will need to give permission and will need to be satisfied that the relevant country has consented to oral evidence being given from there.

Amendments to the proposed tougher laws on sexual harassment and third-party liability

Recent changes to provisions in the Worker Protection (Amendment of Equality Act 2010) Bill as it proceeds through Parliament have significantly watered down the scope for employer liability when it becomes law.

The House of Lords has removed the provision which would have made employers liable for the harassment of employees by third parties in the course of employment.

The third-party liability provision had been controversial, reintroducing a liability that had been repealed ten years earlier but without the ‘three strike rule’ that had previously applied. Earlier amendments had made some qualifications in respect of when the employer would be liable relating to discussions that staff may overhear that were not grossly offensive.

These had been seen as necessary to protect freedom of expression rights. However, the complications of having specific exceptions have led to the proposal to remove the third-party liability provision entirely.

In addition, the new duty that employers take all reasonable steps to prevent sexual harassment has been changed by removing reference to ‘all’. The proposed new duty will mean 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 existing reasonable steps defence for employers in relation to liability for discriminatory acts of employees is in practice difficult to establish due to the fact that it is always arguable that the employer could have done more e.g., better equality training, more frequent reminders about policies, etc.

It looks likely that the duty to prevent sexual harassment will be subject to a similar test but now that that the reference to ‘all’ has been removed it may be easier to establish. 

The Bill is due to be considered again on 5 September 2023 after the Parliamentary recess.