Review of 2022 - Hot topics in UK employment law 

Flexible working – changes are coming

Last December, the Government announced plans to allow employees to request flexible working on their first day of employment (rather than having to wait 26 weeks to do so). Where a flexible working request cannot be accommodated, employers will be required to discuss alternative options with the employee rather than rejecting a flexible working request outright.

In addition, the new legislation will remove the requirement for employees to set out, in their request, the effects of their flexible working request, removing a large admin burden for both sides. It is not yet clear when these changes will take effect, but once they do, flexible working policies will need to be updated.

Further details of the plans can be found here.

IR35 reforms – here to stay

On 18 October 2022, the new Chancellor, Jeremy Hunt, announced that the repeal of the 2017 and 2021 reforms of the IR35 off-payroll working rules will no longer go ahead. This means that the changes previously introduced will remain in place. This was a big disappointment for many employers that engage contractors (or off-payroll workers).

Further information can be found here.

Redundancy consultation – case law reminder

The case of Mogane v Bradford Teaching Hospitals NHS Trust reached the Employment Appeal Tribunal (EAT) in October and served as a useful reminder to employers to take care when handling redundancies involving employees on fixed-term contracts, limited selection criteria, and pools of one. Here, the EAT found that the Claimant’s dismissal was unfair, because the redundancy consultation did not take place before a final decision had been made, and because there was no consultation about the selection process, which led to a pool of one.

New ACAS Guidance on suspending employees

In October, ACAS published new guidance for employers on how to handle staff suspensions. It focuses in particular on suspension during investigations and addresses questions such as whether or not to suspend someone, the process for suspending, supporting an employee’s mental health during a suspension, and whether to pay an employee during the suspension.

Further information can be found here.

Settlement agreements – claims that can be waived

In the recent case of Bathgate v Technip UK Ltd and others, the EAT held that employees cannot give up (i.e. waive) the right to pursue statutory claims that are unknown to them at the time of signing a settlement agreement and that blanket waivers are also not effective, because of the legal requirement that a settlement agreement must “relate to the particular proceedings”. This makes it all the more important that employers use well-drafted, enforceable agreements that also contain robust repayment clauses.

Brexit Freedoms Bill

In September, the Government announced the Brexit Freedoms Bill, under which all retained EU laws will be “sunset” from December 2023. This means that they will be amended, repealed, or replaced by that date, or they will just vanish, unless the deadline for doing so is extended. The press release says that this will enable the UK Government to create regulations tailor-made to the UK’s own needs, doing away with outdated and burdensome EU laws.

Because of the potential changes that could be on the horizon for a wide range of employment laws in the UK (including rights relating to TUPE, paid annual holiday, the 48-hour working week, and part-time and fixed-term employees, to name just a few), commentators have described this as “the most important piece of employment legislation since the introduction of discrimination and dismissal laws in the 1970s”.

We don’t yet know how big the changes to these areas of UK employment law will be, but what is certain is that changes will be coming and that employers will have less time than usual to get ready for them.

Further information on the bill can be found here.

ICO guidance – employee data and monitoring

The ICO has published new draft guidance on (a) handling information relating to an employee's health and (b) monitoring in the workplace. At this stage, both sets of guidance are under consultation, and do not introduce new legal requirements. However, the guidance will likely be finalised in the early part of 2023 and so now is the time for employers to be assessing their procedures for monitoring staff and for handling employee health information, looking particularly at what information does not need to be retained.

The draft guidance can be found here and here.

Mass redundancies in the Tech sector

We have seen much coverage in the news about mass redundancies in the tech sector, including by companies like Meta, Amazon and Twitter, which are taking this step to reduce costs quickly. Although redundancy is a potentially fair reason for termination, additional consultation obligations apply where 20 or more employees are being made redundant at one establishment within 90 days. The penalties for non-compliance are significant - up to 90 days of pay per employee. In addition, failing to also notify the Secretary of State is a criminal offence. Before a redundancy programme starts, careful planning will be necessary to ensure that the trigger point for collective consultation is clear.

Cost of living crisis

Many employers are considering what support they can provide to their staff during the current cost of living crisis. This ranges from financial support (including pay increases and one-off cost of living payments) to allow employees to sell excess holiday and/or take a second job. Measures like this can reward loyalty and increase levels of employee retention.

On the horizon for 2023

• A new Statutory Code of Practice on the practice of “fire and rehire”, with guidance on how to engage in meaningful consultation with employees. “Fire and rehire” tactics mean facilitating a change of employment terms by dismissing employees and then immediately re-engaging them on the new terms. This was announced on 29 March 2022 and comes on the back of the events in the Spring involving P&O Ferries.
• A new proactive duty on employers to prevent harassment.
• Proposals for regulating non-compete clauses in employment contracts, following the Government’s 2020 consultation.
• Extension of redundancy protection so that it applies from the point an employee informs her employer that she is pregnant to the period ending six months after her return to work, with a period of protection also available to new parents returning from family leave.
• A new right to carer’s leave.
• A new entitlement to neonatal leave and pay for parents of babies who are admitted to the hospital within 28 days of birth for 7 days or more.

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