Employment Law Update December 2022

There have been some key updates in Employment Law recently, which may have flown under the radar with everyone gearing up to enjoy the Christmas and New Year holiday.

In this article, we summarise the key updates for your benefit.

Flexible working

On 5^th December 2022, the Department for Business, Energy and Industrial Strategy (BEIS) proposed to update the existing legal framework in respect of flexible working, as follows:

• Flexible working will become a day one right, in contrast to current legislation which states that employees cannot make a flexible working request until they have been continuously employed for 26 weeks;

• Employers will be required to consult with the employee to explore alternatives before rejecting a flexible working request. Current legislation does not require this.

• Employees will be permitted to make two flexible working requests in a 12-month period, as opposed to one under current legislation.

• Employers will be required to respond to a flexible working request within two months, as opposed to within three months under current legislation.

• Employees will no longer be required, as they are under current legislation, to set out how the employer might deal with the effects of their flexible working request.

Next steps

The government has committed to introduce secondary legislation to make the right to request flexible working a day one right “when parliamentary time allows”.

In respect of the remaining proposals identified above, these will be taken forward by primary legislation.

There is no clear timeline as to when the changes will actually be implemented.

Comment

The proposals are a welcome modernisation of the right to request flexible working legislation.

However, if is crucial to note that it is a right to request flexible working. The eight statutory business grounds for rejecting a flexible working request will remain the same, therefore, the reform does not mean that employees have a general right to work flexibly under the legislation (however, they may have a contractual right depending on the wording of their employment contract and more importantly, flexible working may amount to a “reasonable adjustment” under the Equality Act 2010 for disabled employees).

In addition, although consulting with employees to explore alternatives is not a requirement under current legislation, the reality is that most (if not all) employers would do so in any event as a responsible employer, as well as for practical reasons.

Ban on exclusivity clauses

Exclusivity clauses restrict workers from working for multiple employers.

With effect from 5^th December 2022, exclusivity clauses are banned for workers whose net weekly wage is less than the Lower Earnings Limited, which in the current tax year (2022/2023), is £123 a week.

Comment

The government’s intention is that the ban on exclusivity clauses for what it refers to as “low paid workers” will allow them to make the most of opportunities available to them by working multiple short-term contracts.

The government also anticipates that the ban will particularly benefit those who require more flexibility over where and when they work, such as students or people with caring responsibilities.

April 2023 increases to statutory maternity, paternity, adoption, parental bereavement and sick pay announced

The Department for Work and Pensions (DWP) has published its proposed increases to the above, as follows:

• The weekly rate of statutory sick pay (SSP) will be £109.40 (up from £99.35);

• The weekly rate of statutory maternity pay (SMP) and maternity allowance will be £172.48 (up from £156.66);

• The weekly rate of statutory paternity pay (SPP) will be £172.48 (up from £156.66);

• The weekly rate of statutory shared parental pay (ShPP) will be £172.48 (up from £156.66);

• The weekly rate of statutory adoption pay (SAP) will be £172.48 (up from £156.66); and

• The weekly rate of statutory parental bereavement pay (SPBP) will be £172.48 (up from £156.66).

The new rates represent an increase of 10.1% on the rates applicable for 2022/2023, and are due to come into effect on 10^th April 2023.