News 📰
Changes to the Working Time Regulations
The new year kicked off with amendments to the Working Time Regulations which came into effect on 1st January 2024. The changes mainly deal with how employers calculate the amount of holiday that part-year and zero hours workers are entitled to, as this can be complicated.
The problem can be easily illustrated. The regulations say that every employee is entitled to 5.6 weeks of holiday per year. For a full-time employee that translates as 28 days per year, which can then be pro-rated for part-time employees. But say you have a zero-hours worker who works a completely different number of hours and days per week, and does not work some weeks at all – how many days of holiday do they get?
For a long time, employers generally calculated holiday for these workers at a rate of 12.07% of the hours they worked. That calculation was not set out in the Working Time Regulations, but it resulted in employees accruing holiday at the same rate as a full-time employee. Previous guidance from Acas also endorsed that calculation. However, in 2022 the Supreme Court ruled that the 12.07% accrual method didn’t comply with the Working Time Regulations as they were then written. The effect of the decision was that a part-year worker would need to receive 5.6 weeks of paid holiday per year, regardless of how much they worked during the year.
In effect, the changes to the Working Time Regulations reverse the Supreme Court’s decision and will allow employers to calculate holiday for part-year and zero-hours workers using the 12.07% accrual rate. A more thorough guide to the changes has been written by Desley Sherwin here.
Paternity Leave (Amendment) Regulations 2024
Draft regulations changing how paternity leave may be taken have been published this month and are due to come into effect later this year. The changes being made are that:
- Fathers/partners will be able to take their leave as two separate one-week blocks, rather than only being allowed to take a single block of either one or two weeks’ leave.
- Fathers/partners may take their leave at any point in the first year after the birth or adoption of their child, rather than only in the first eight weeks.
- The notice requirements for paternity leave will be shortened, so that in most cases employees only need to give 28 days’ notice.
The changes are designed to give fathers/partners more flexibility in how they take their leave, and they will apply in relation to any children born on or after 6 April 2024. Employers with policies governing paternity leave will need to update them once the changes come into effect.
Acas Code of Practice on requests for flexible working
Acas have published a draft new code of practice on flexible working requests, which is now awaiting Parliamentary approval. When this is granted, Employment Tribunals will be required to take into account whether the code has been followed where it’s relevant to a claim.
The code gives guidance to employers on how to deal with a request, including holding a consultation meeting with the employee, exploring alternative flexible working options, confirming the reasons for any rejection in writing and granting employees the right to appeal.
Changes are being made to the statutory right to make a flexible working request in April 2024, including that employees will be entitled to make a request from day-one of their employment (rather than needing 26 weeks’ service as currently). It is likely that the new code of practice will be approved at the same time these changes come into force.
Amazon fined in France for excessive employee surveillance
The French data protection authority has fined Amazon €32m for excessive surveillance of its workers, as well as for keeping that surveillance data for too long. Handheld devices used by Amazon workers to scan products would send an alert to managers if employees were not scanning items quickly enough, or if breaks were too long. The data was kept for a month, and employees were not told about the extent to which they were monitored, all of which was found by the authority to be against the GDPR.
Despite leaving the EU, the UK has adopted the GDPR so the case is a useful reminder to employers that any monitoring of employees must be proportionate, that any employee data should not be kept any longer than necessary, and that employees must be told about any monitoring.
Case Law Update 📢
Bathgate v Technip Singapore PTE Ltd
Almost all settlement agreements include wording saying that all employment claims against the employer are settled, even if the employee is not currently aware of them. Last year, the Employment Appeal Tribunal ruled that this wording could not validly settle a discrimination claim if the employee was unaware of it. However, the Scottish Court of Session has reversed that decision and has confirmed that, as long as the settlement agreement specifically says so, unknown discrimination claims can be settled. This gives additional reassurance to employers offering settlement agreements that no claims will be brought against them in the future.
Mr Bathgate had worked as a Chief Officer on board a ship from 2008 until 2016. He then worked in a variety of onshore roles until he was made redundant in 2017. He signed a settlement agreement which confirmed he would receive his notice and enhanced redundancy pay, plus an “additional payment” that would be calculated with reference to a union agreement and paid later in the year. However, the union agreement said that employees over 61 were not eligible for the additional payment. Mr Bathgate was over that age. When he did not receive an additional payment, Mr Bathgate sued for age discrimination. The Scottish court decided that he could not pursue the claim as it was settled by the agreement, despite Mr Bathgate not knowing of the potential claim until after signing it.
The Court also decided a technical point relating to “seafarers”. Broadly speaking, seafarers cannot bring discrimination claims if, like Mr Bathgate, they worked on vessels registered and operated outside the UK. The Court decided that, despite Mr Bathgate working onshore in the months before his redundancy, he was still a “seafarer” under the Equality Act and so was also unable to claim discrimination for this reason. It remains to be seen whether Mr Bathgate will attempt to appeal to the Supreme Court.
Thank you to our contributors: Phil Cookson, Desley Sherwin, Laura Hill and George Miller.