Employment Update from Hunter Adams – Q3 2023

Employment Legislation changes incoming

In a year marked by many legislative changes aimed at bolstering workers’ rights, three additional laws have crossed the final hurdle, receiving Royal Assent.

As these laws gain Royal Assent, the landscape of employment rights in the UK continues to evolve, emphasising the government’s commitment to enhancing worker protections and promoting fairer working conditions. Employers and workers alike must remain vigilant and informed about their rights and responsibilities in this ever-changing legal environment.

Employment Relations (Flexible Working) Act 2023

Employees across the UK will be given even more flexibility over where and when they work, as the Employment Relations (Flexible Working) Bill receives Royal Assent.

Employees will be able to make up to two requests (currently one request) per year and employers will be required to consider, discuss and respond to any flexible working requests within two months (currently three months) of a request being received.

Flexible working is a broad term and can relate to working hours or pattern including part-time, term-time, flexi-time, compressed hours, or adjusting start and finish times. It can also include flexibility over where someone works, whether that be from home or a satellite office shortening their commute, for example.

As well as clear benefits to workers, the measures are also being seen as good for UK businesses. Research has shown companies that embrace flexible working can attract more talent, improve staff motivation and reduce staff turnover – boosting their business’s productivity and competitiveness.

CIPD research shows that 6 percent of employees changed jobs last year specifically due to a lack of flexible options and 12 percent left their profession altogether due to a lack of flexibility within the sector. This represents almost 2 and 4 million workers respectively.

We expect the measures in the Act and secondary legislation to come into force approximately a year after Royal Assent, to give employers time to prepare for the changes.

Workers (Predictable Terms and Conditions) Act 2023

Under this groundbreaking law, all workers, including those on zero-hours contracts will possess the legal right to request a predictable working pattern provided they meet specific eligibility criteria.

Dealing with a request for a predictable working pattern will follow a procedure similar to flexible working requests. However, there is a significant distinction: employers must address requests for a predictable working pattern within one month.

The Pensions (Extension of Automatic Enrolment) Act 2023

This new legislation ushers in changes to the age and earnings thresholds for automatic pension enrolment. Eligible workers will now be automatically enrolled in a pension scheme from the age of 18, down from the previous threshold of 22.

Additionally, the lower earnings limit will be removed, meaning the first pound of employee income is pensionable as opposed to starting at £6,240 per annum currently.


Adjustments as a result of neurodiversity or a disability

In many employee relations cases we support, we see employees raising as mitigation, that they have a disability linked to a neurodiverse condition. It is important for employers to be aware of the topic of neurodiversity and what they may need to consider, including checking with employees whether there are any underlying issues or conditions which may be negatively impacting  them in their role, where concerns regarding performance or behaviour are being raised, rather than simply waiting for this to be raised during any employee meeting they conduct.

What is Neurodiversity?

Broadly speaking, the term neurodiversity is the idea that everybody’s brain is different and as a result we all interact with and experience the world around us differently. Some of the conditions that come under this umbrella include autism, attention deficit hyperactivity disorder (ADHD), dyslexia and dyspraxia. Over the past couple of decades it has been recognised that these conditions are natural variations and although some employees may require adjustments in the workplace, the majority will provide a variety of skills and abilities which benefit organisations.

Why is it important?

It is estimated that at least 20% of the adult population in the UK have a diagnosed neurological condition, however, in many cases, individuals haven’t sought or received a diagnosis as they may not know they are neurodiverse. Most organisations, therefore, already have a neurodiverse workforce, whether aware of it or not. It is essential that employers are aware of how to support any employees that advise they have been diagnosed, or believe that they may be neurodiverse, in order to create a diverse and productive workforce which values all contributions, as well as protecting individuals from direct or indirect discrimination.

Avoiding stereotypes

It is important that employers see each employee with a confirmed or suspected neurodivergent condition as an individual and not  make assumptions about them based on a neurodivergent stereotype. When considering the range of neurodivergent conditions, each condition can have associated characteristics and different ways in which individuals interact with and experience the world. In addition to this, individuals who have the same neurodivergent condition can also interact and experience the world in different ways from each other. For example, not everyone with ADHD will have symptoms of hyperactivity.

Why might adjustments be required?

Due to  difficulties that individuals with neurodiverse conditions can experience in their daily life, they can frequently be classified as disabled. Therefore, employers should be mindful of considering/being required to implement reasonable workplace adjustments under the Equality Act 2010. This would be particularly important for any employee meetings (formal or informal), and when communicating  information to employees, but should also be considered in relation to processes, procedures and job design.

What are examples of how to best support employees, including making reasonable adjustments?

It is essential that the individual concerned is involved directly in establishing any adjustments and reviewing them.

Reasonable adjustments may include things like:

  • Implementing supportive technology/hardware equipment.
  • Providing alternative seating/desk arrangements.
  • Allowing flexibility to work from home occasionally or to vary working hours.
  • Following up verbal conversations/instructions in writing or with diagrams to provide clarity. Also checking understanding to reduce the risk of miscommunication.
  • Communicating any changes to the business and / or their job role in a timely, appropriate and agreed manner.
  • Consider allowing extra time for tasks that may be more difficult.
  • Schedule regular review meetings, ensuring clear communication.

There is an abundance of online resource dedicated to each condition that is considered Neurodiverse, so if you have any specific questions or concerns regarding employees and/or neurodiverse conditions, you can get on line or feel free to get in touch.  We are not Neurodiversity experts so in some instances may signpost you elsewhere in order for you to get the support you require.


Grievance and Disciplinary Investigations

To follow on from a similar topic in our last update, as the year progresses we are continuing to see a number of grievances being raised in relation to various factors, from operational issues to bullying, harassment and/or discrimination. We recommend employers educate their line managers in the company grievance and disciplinary policies and procedures so they are aware of their responsibilities and what might be required of them in any investigation and/or formal process. It is common for managers not to be aware of the timeframes they may need to work to or the
level of responsibility involved in leading such processes.

One way to stay on top of this is to check when your policies and/or handbook were last reviewed to ensure they are both legislatively sound and reflective of the working practices within your organisation. If you need support with reviewing and/ or updating your policies and/or handbook, please get in touch.


At Tribunal

Supreme Court rules on Holiday Pay claim

Where a worker believes that they have been paid the incorrect holiday pay, they are usually required to bring an unlawful deductions claim within three months of an underpayment. Where there is a series of underpayments, they can bring a claim within three months of the last in the series. However, the Supreme Court recently dismissed an appeal from an employer and ruled that a worker does not automatically lose the right to claim for a series of underpayments of holiday pay where there is a gap of more than three months between the underpayments or where a correct payment of holiday pay is received.

In this case, workers brought a claim for underpaid holiday pay dating back to 1998. Their holiday pay was calculated by reference to their basic pay and did not include pay for overtime which they regularly worked. They argued that their holiday pay should have included overtime and there had been a series of deductions from their wages, meaning that they could claim in respect of the whole series of underpayments.

The employer accepted overtime pay should have been included in holiday pay calculations as, following European Court rulings, holiday pay should reflect normal remuneration. However, they argued that a series of deductions from wages is broken where there is a gap of more than three months between the underpayments or where a correct payment of holiday pay is made. If successful, their argument placed a severe limitation on how many previous years of underpaid holiday the workers could claim for. For example, the series of deductions would come to an end if a worker did not take holiday for three months, as they would have been paid their wages correctly for three months in a row. Similarly, the series of deductions would come to an end if the worker did not work any overtime during the holiday pay calculation reference period, as payment of basic pay for that holiday would have been correct.

A tribunal in Northern Ireland upheld the workers’ claims going back to 1998. The employer’s appeal to the Court of Appeal was unsuccessful and they appealed to the UK Supreme Court, who ultimately dismissed it.

Employers should be mindful that although this was a Northern Irish case, the Supreme Court’s decision will be also binding in England, Wales and Scotland. This decision overturns a previous case in Scotland, so employers will no longer be able to argue that a three-month gap between underpayments or a correct payment of holiday pay brings a series of deductions to an end. The judgment applies to all unlawful deductions claims, not just those in respect of holiday pay.

However, the impact of the decision is limited to an extent in England, Wales and Scotland, as unlawful deductions claims can currently only go back two years from the date of the employment tribunal claim.

Significant compensation awarded to worker dismissed for expressing gender critical beliefs

It is now clear that gender critical views are protected as philosophical beliefs under the Equality Act 2010. In a case first heard in 2019, a significant award has been made this year, where one successful claimant, Maya Forstater, was awarded £105,800 by an employment tribunal after her contract was not renewed because of tweets she had sent expressing gender critical views. The Tribunal found the claimant had been directly discriminated against and victimised by the employer and the overall award included payments for injury to feelings and loss of earnings.

In light of such a payment being awarded, it is worth employers being aware that managing employees with conflicting beliefs can be difficult, and as beliefs surrounding gender issues are currently topical in wider society it is an area where caution and patience are advisable if similar situations arise in your organisation. Please reach out if you have questions relating to such matters, but be aware that seeking specialist legal advice is also advisable with these situations.