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After years of talk about improving the legal framework to promote more flexibility in the modern working environment, the UK is now on the cusp of changes to its statutory flexible working regime taking effect. Our blog post from August 2023 provides a background to reform and the changes as initially announced. We now provide an update on what is changing and when, and provide our top tips for employers preparing for and managing flexible working requests beginning in April 2024.

What are the current flexible working rules in the UK?

Under current statutory rules, employees with 26 weeks of continuous service have the right to request flexible working, typically seeking changes to their days, hours, pattern or place of work. The request must be made in writing and explain what impact the change would have on the employer and how this can be dealt with. Only one request can be made within a 12-month period, and employers should deal with the request within three months. There is no obligation on employers to accept a request for flexible working but must consider requests reasonably and only reject a request on the basis of one or more prescribed statutory grounds (such as the burden of additional costs, the detrimental effect on the ability to meet customer demand or performance/quality and an inability to reorganise work among existing staff).Continue Reading Flexible working reform in the UK – Are you ready for April?

Employers embarking on redundancy or restructuring exercises need to be aware of significant changes from 6 April 2024 to UK redundancy rules which give priority protection to employees on maternity, adoption and shared parental leave (SPL). The changes from 6 April mean that the period of priority protection will extend to 18 months following the end of leave and will also apply to pregnant employees from the day they notify their employer of their pregnancy. This is important because a failure to give priority protection can result in a redundancy dismissal being both automatically unfair and deemed discriminatory.

This blog explains the upcoming changes and considers issues arising and how employers can manage the impact. It also looks at the practical issues arising from a larger number of employees being given priority status.Continue Reading UK redundancy protection – significant changes from April 2024

One hundred years ago this month, in November 1923, Lord Hewart delivered a famous legal judgment on the principles of open justice, declaring it of fundamental importance that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”. It is in that spirit of open justice that Employment Tribunals (ET) today remain open to the public and the content can freely be reported on in the press and media. As a result, when ET claims are issued, it is not uncommon for the parties to be anxious about who will have access to documentation that is presented to the ET in proceedings, and what they can do with it.

In light of a recent announcement that ET hearings will now be routinely recorded from November 2023, we take this opportunity to explore what “open justice” means in the context of online hearings, and who can see or hear what and when.Continue Reading UK Employment Tribunal: third party access to Tribunal pleadings and documentation

With the 2023 winter work party season upon us, company, location, or team level seasonal gatherings provide a chance for employers to thank staff for their hard work and for everyone to relax, socialise and have some fun with their colleagues. Yet without careful thought and planning, they can be problematic for employers who can find themselves faced with fallout from the festivities.Continue Reading Get the party started: avoiding HR issues at festive events

The tide is turning on employment law at sea. For decades, maritime employment seemed to be governed more by treaty than by specific national regulation. Increasingly, however, the UK has begun to take action – best demonstrated by the new “Seafarers’ Wages Act”, passed in response to recent well-documented controversies.

In this post, we examine

2023 looks set to be a year of significant change for HR professionals with the progression of new and reformed laws proposed and backed last year. Here are some of the key legislative/policy developments to watch out for:

Flexible working – Changes to the statutory flexible working regime are expected. The new rules will extend the right to request flexible working to all employees from day one of employment. Employees will be allowed to make two requests in a 12-month period (rather than the current limit of one) and employers will have less time to respond (two months, not three). For more information, see our previous Employment Law Watch blog.  

Carer’s leave – A new statutory right for carers to take a week’s unpaid leave per year is proposed. The leave is intended to be used to take planned time off (rather than emergency leave) to undertake caring responsibilities.   

Neonatal leave and pay – A new statutory leave is proposed which will allow parents of sick or premature babies to take up to 12 weeks’ paid leave on top of any maternity or paternity leave entitlement. The leave is proposed to be a day one right for new hires and to apply to those parents whose babies need to be in hospital in the first 28 days post birth with continuous stays of seven days or more. Continue Reading 2023 – All change for UK employment law?

Speedread

From 1 October 2022, the requirement for employers to physically check their new hires’ right to work (RTW) documents will return unless they opt to use one of the new government ‘Identification Document Validation Providers’ (IDSP) to validate RTW evidence online.

Background

Prior to the pandemic, all RTW checks had to be carried out face-to-face.

As a temporary measure brought in during the pandemic, the Home Office allowed employers to carry out RTW checks over video call and to accept scanned documentation (as opposed to having face-to-face checks and then copying and retaining original documents, as was the pre-pandemic requirement). This temporary measure will end on 30 September 2022. 

Reminder of requirements

All UK employers must carry out certain RTW checks for new recruits (regardless of nationality) and also use reasonable steps to ensure their current employees have and maintain a RTW in the UK. While there is no standalone liability for employers who fail to correctly carry out RTW checks, failing to do so exposes employers to fines of up to £20,000 per breach in the event that they employ someone illegally (plus criminal liability, disqualification of directors, reputational damage, among other risks). Compliant RTW checks secure a statutory excuse to civil liability for the hiring of illegal workers. Continue Reading UK employers, are you ready for October? Change in Right to Work Check Requirements

The recent case of Dafiaghor-Olomu v Community Integrated Care [2022] EAT 84 is a good demonstration of the rough justice that is occasionally dispensed by the Employment Tribunal system.

It is well known that the amount of compensation that an employer can be ordered to pay for a straightforward unfair dismissal claim is subject to a statutory maximum amount of 52 weeks’ pay (commonly referred to as the “statutory cap”).  In Dafiaghor-Olomu v Community Integrated Care, Mrs Dafiaghor-Olomu won her unfair dismissal claim against her employer. At the remedies hearing, the tribunal awarded her £46,153.55 in compensation and the employer paid this amount in full. The claimant successfully appealed the outcome of the remedies hearing and her award was subsequently increased to £128,961.59 following a second remedies hearing. The claimant appealed again to the EAT in respect of the remedy.

The key question for the EAT to determine was how the statutory cap should be applied in this unusual scenario in light of the earlier payment of £46,153.55. In particular, the EAT had to decide whether:

  1. The employer should be given credit for the earlier payment of £46,153.55 before the statutory cap was applied leaving the employer with an outstanding balance to pay of £74,200 (the statutory cap at the time of dismissal); or
  2. The statutory cap should be applied to the total award first, and then the employer given credit for the earlier payment of £46,153.55, leaving the employer with an outstanding balance to pay of £28,046.45.

Continue Reading Unfair Dismissal Compensatory Awards – The Cost of Compliance

The outcome of Swiss Re Corporate Solutions v Sommer [2022] EAT 78, (which we reported in this month’s newsletter) provides an interesting illustration of the scope of the ‘without prejudice’ privilege rules in the context of settling an employment tribunal claim.

The ‘without prejudice’ rule (the “Rule”) allows parties to have a full and frank exchange of views about a dispute or litigation, and even to make concessions about weaknesses in their own case, when discussing settlement. The parties can do this safe in the knowledge that anything said or done will be “without prejudice” and therefore cannot be relied on and would not be disclosable if settlement is not achieved and the matter goes to court/tribunal. The courts recognise that without prejudice privilege is important for the efficient operation of the legal system, as it facilitates parties to resolving disputes outside of court/tribunal.

There are only a small number of narrow exceptions to this Rule and the Sommer case is a good illustration of that. One exception is that the Rule cannot be abused or weaponised as a disguise or excuse for “perjury, blackmail or other unambiguous impropriety”. Case law has established that this ‘unambiguous impropriety’ exception should be construed narrowly – it should only be applied in the clearest cases of abuse. In 2021 the Court of Appeal ruled it would only be lost in “truly exceptional” circumstances.Continue Reading Sailing close to the wind: ‘without prejudice’ and the thresholds of ‘unambiguous impropriety’