News 📰
Compressed hours proposal
At the end of August, it was suggested that, as part of their employment law reforms, the Labour government may allow employees to work a four-day week.
Beyond the current provisions allowing employees to request flexible working, the reforms being discussed may go even further to allow employees to make requests to work compressed hours. The Education Minister, Jacqui Smith, suggested that this could see employees working ten hours a day for four days, instead of eight hours each day across five days.
Under the new provisions, employers would not be forced to allow this where it was not reasonably feasible, but the Conservative opposition claim that businesses are worried about reduced productivity.
Right to Switch Off
Having already proposed the ‘right to switch off’ in their manifesto, the government is now tackling how to implement the right, which will mean that employers will not be able to force their workers to engage with work emails, telephone calls and instant messaging outside their contracted working hours or when they are on leave. Enforcing the right may be implemented through a Code of Practice, breach of which could be invoked as an aggravating factor during tribunal claims when the tribunal comes to assessing compensation. If this were to be implemented, breach of the Code of Practice could result in an increase to compensation of up to 25%, in the same way as a breach of the ACAS Code.
Consultation on Plan to Make Work Pay
The government continues to work on their Plan to Make Work Pay, whereby they promise to boost wages, make work more secure, and support working people to thrive by delivering a ‘genuine’ living wage, banning exploitative zero hour contracts, and ending fire and rehire. The Deputy Prime Minister, Angela Rayner, hosted a meeting on 14 August 2024 for senior representatives from businesses and trade unions. Representatives were invited to share their views on the Employment Rights Bill and the Plan to Make Work Pay to demonstrate a new policy of collaboration between businesses, trade unions and the government.
Duty to take reasonable steps to prevent sexual harassment in the workplace coming into force
In an update from our May / June newsletter, the positive duty to take reasonable steps to prevent sexual harassment in the workplace is due to come into force next month on 26 October 2024.
This will impose an increased burden on employers, who will need to take further steps to show that they have complied with their positive duty. This will now go beyond providing basic training and creating an anti-harassment policy.
Employers will instead be required to provide more extensive training which is tailored to the specific working environment. This could result in changes in the usual training for employers who do not work in a standard office environment; for example, employers running a customer-facing business, or businesses that are run remotely. If employers can offer bespoke training specific to their workplace, this may provide more robust evidence that they have complied with their positive duty to take reasonable steps to prevent sexual harassment in the workplace.
Training should set out the meaning of harassment, acceptable workplace behaviour, procedures to follow where employees observe or experience harassment, and steps to take following a report of harassment.
Workers (Predictable Terms and Conditions) Act 2023
The Act was due to come into force this month, after receiving Royal Assent last year. The new law had been intended to give workers more predictability in regard to their working hours. Under the Act, all workers and employees, including agency workers and workers with zero-hour contracts, would have been able to make a request for a predictable working pattern.
The Labour government has confirmed that they intend to ensure workers ‘have a right to a contract that reflects the number of hours they regularly work’, but we understand that this act has been shelved for the moment, although it may reappear in the Employment Rights Bill, which the government pledged to release within their first hundred days in office.
Case Law Update 📢
Rollett v British Airways
A group of Claimants challenged a schedule change made by British Airways, that would result in cabin crew staff working less predictable working patterns and having less time at home between shifts. The schedule would cause a disadvantage to non-British nationals, who would have a longer commute from abroad, and to women, who would be disadvantaged due to their greater caring responsibilities. This gave rise to indirect race and sex discrimination claims.
The Claimant group also included a British national living abroad, who claimed indirect race discrimination alongside the non-British nationals, and a male employee who was a carer, who joined the indirect sex discrimination claim alongside the women.
The EAT upheld the decision of the Tribunal that these ‘associative’ indirect discrimination claims were allowed, despite those particular claimants lacking the relevant protected characteristic (of race or sex).
This may have implications for future indirect discrimination claims, as this ruling may result in employers having large groups of employees making indirect discrimination claims, where many of the group do not have the protected characteristic, but still suffer the same disadvantage.
Thandi and others v Next Retail Ltd and another
Equal pay law provides that an employee is entitled to contractual terms that are as favourable as those of a comparator of the opposite sex if they are employed in the same employment and on ‘equal work’ which is ‘like work’, work rated as equivalent or work of equal value).
The Employment Tribunal decided that Next had breached equal pay laws. Over 3500 female shop-floor workers brought the claims against Next, for paying them less favourable basic pay rates and other benefits than warehouse staff, who were mostly male.
The tribunal ruled that the staff were all carrying out work of equal value. Next could not establish a ‘material factor’ defence in relation to basic pay. The tribunal found that Next did have market reasons to pay warehouse staff a higher rate, in order to incentivise and retain staff. However, they could have applied this higher rate basic pay to shop-floor staff but chose to minimise labour costs instead.
Next has confirmed that it will be appealing the tribunal judgment.
R (Karmakar) v Royal College of GPs
The Claimant was a trainee GP who was diagnosed with a neurodiverse cognitive profile. She had taken the Applied Knowledge Test the maximum number of times permitted by the Royal College of GPS and had not passed. However, not all of these attempts were made with a reasonable adjustment being applied of 25% extra time. This was because the Claimant’s diagnosis was only made in between test attempts.
The High Court held that qualification bodies had a wide discretion to set a maximum number of test attempts. However, it was irrational not to allow the Claimant to take the maximum number of attempts with the extra time, as trainees who knew they had a disability before making any attempts, benefited from the reasonable adjustments on all attempts up to the maximum number allowed.
The Claimant would therefore be allowed further attempts at the test, in place of the attempts taken without the reasonable adjustment.
*REMINDER! The Employment (Allocation of Tips) Act 2023 comes into force on 1 October 2024 to regulate the allocation and distribution of tips, and to introduce an obligation to put in place a written tips policy. If you work in the food and leisure industry and need some help ensuring compliance with the new obligations, please contact our Employment team.
Thank you to our contributors: Phil Cookson, Desley Sherwin, Laura Hill, George Miller and Natasha Ewins.