February 2023 employment news round-up
27 February 2023
New right to request predictable hours
The Government is supporting another Private Members’ Bill, which will introduce a new right for workers engaged under a zero-hours contract to request a contract with guaranteed hours.
The Workers (Predictable Terms and Conditions) Bill has started its passage through Parliament and completed its second reading in the House of Commons on 3 February 2023. Separate regulations will set out the details of how the new right will operate in practice, but it is expected that workers will need a minimum of 26 weeks’ service before making a request, and will be able to make up to two requests per year. It will apply to workers and agency workers, including those engaged on fixed term contracts of 12 months or less.
It is likely that the new right will apply in a similar way to the right to request flexible working, which is currently subject to changes under the Employment Relations (Flexible Working) Bill. Employers will be able to refuse a request on certain specific grounds, such as the burden of additional costs or insufficient work available.
The right to request more predictable hours was one of the recommendations made in the 2017 Taylor review of modern working practices, and was included in the Government’s 2018 Good Work plan. This is the latest Private Members’ Bill being actively supported by the Government, and there are now seven in total. See our recent article for more details of the other employment Bills currently in progress.
Draft Code of Practice published
The Government has published its long-awaited draft Code of Practice on dismissal and re-engagement for consultation, which was originally expected to be published in summer 2022.
The draft Code was promised as a result of increasing concerns over the use of ‘fire and rehire’ tactics by employers, in order to force through a change to employees’ contractual terms and conditions. The Code follows the publication of new Acas advice for employers back in November 2021, and is based on that Acas advice.
Under the Code, employers are expected to take all reasonable steps to explore alternatives to dismissal and engage in meaningful consultation with trade unions, employee representatives or individual employees before reaching the decision to dismiss and re-engage on new terms.
The Code provides practical guidance on the process that employers are expected to follow, starting with communicating the desire to change terms and conditions. Employers should continue to reassess the proposals throughout the period of consultation and consider any alternative proposals put forward by employees. The threat of dismissal should not be used to put undue pressure on employees to accept new terms, instead of seeking to find an agreed solution.
While the Code itself does not impose any legal obligations, it will be admissible in evidence in proceedings before a court or tribunal, and any relevant provision of the Code must be taken into account by the court or tribunal. For certain claims, a tribunal will be able to increase any award of compensation by up to 25% if the employer has unreasonably failed to comply with the Code. It will also be able to decrease an award by 25% if an employee has failed to comply (although this is likely to be rare in practice).
Consultation on the draft Code will close on 18 April 2023. The final Code will come into force once responses to the consultation have been considered.
Menopause: government response
The Government has published its response to the Women and Equalities Committee (WEC) report (July 2022) on menopause and the workplace, addressing the recommendations set out in the report. This follows its previous response to an independent report on menopause and the workplace, published in July 2022.
It confirms once again that there will be no changes made to the Equality Act 2010 to improve protection for women undergoing the menopause, with no ‘dual discrimination’ on grounds of sex and age, and menopause not being introduced as a new protected characteristic.
Work will continue on improving awareness of the menopause and its symptoms, and a ‘Menopause Employment Champion’ will be appointed “in due course”. The Health and Safety Executive (HSE) and Equality and Human Rights Commission (EHRC) will also be publishing strengthened guidance on how to support the employment of disabled people and others with long-term health conditions, including menopausal symptoms.
The Government has not accepted the WEC’s recommendation to produce a model menopause policy or to pilot a menopause leave policy. It considers there to be no ‘one-size-fits all’ approach to developing workplace menopause policies and guidance, preferring instead to focus efforts on communicating best practice and encouraging employers to implement policies to support women in remaining in work. This includes measures to promote flexible working and to make the right to request flexible working a day one right (under the Employment Relations (Flexible Working) Bill.
The WEC has responded by letter, expressing particular concerns about the Government’s decision not to introduce any legislative reforms. It reiterates the view that the current law under the Equality Act 2010 does not sufficiently protect menopausal women, and that as an inevitable part of all women’s lives, the menopause should not be regarded as a form of long-term ill health. It would appear highly unlikely, however, that the Government will change its current stance and make any amendments to the current legislation.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at February 2023.