Welcome all to the November edition of the AdviserPlus newsletter.
This month’s newsletter we will look at legislative developments around upcoming flexible working changes, and the extension of bans on exclusivity clauses coming into force.
We will also explore some recent case law, looking at how a Provision, Criterion or Practice (PCP) was considered in a redundancy selection, in the ruling in the Hilaire v Luton Borough Council case.
Finally, there are some dates in December and January that may be interesting and beneficial for businesses to explore, including Human Rights Day.
Changes to Flexible Working
The government has published its response to last year’s consultation on updating flexible working laws. Below are the key elements:
- The right to request flexible working will become a day one right (as opposed to the current requirement for employees to have 26 weeks’ continuous service before making a request). This remains a right to request, rather than a right to have.
- Employees will be able to make two requests in a 12 month period (currently one).
- Employers will be required to respond within two months (currently three).
- The request procedure will be simplified for employees in that they will no longer have to set out how their request may impact work.
- There will be no change to the list of eight reasons an employer can reject a request, however;
- There will be a new duty for employers to discuss alternative available if they intend to refuse a request
The Government hopes the changes will give more employees better access to flexible working options, and support those with health conditions, and responsibilities such as caring. In turn, improving work-life balance can improve productivity and job satisfaction, benefitting employers too.
This is one to watch out for; new legislation will be required and there is currently no timescale for this, however it’s anticipated that elements of the changes will be happen in the foreseeable future.
5th December – Ban on exclusivity clauses comes into force
Regulations banning exclusivity clauses (which are intended to prevent employees from working for more than one employer) are to be extended to those on or below the lower earnings limit (set at £123 a week for the 2022-23 tax year), and comes into force on 5th December 2022.
Exclusivity clauses are terms in a contract which prevents a worker from working elsewhere, or from doing so without first getting their employer’s permission. This includes preventing someone from working elsewhere due to a conflict of interest.
The legislation also gives employees the right not to be unfairly dismissed or to be subjected to a detriment, if they fail to comply with an exclusivity clause.
The Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 initially banned these clauses for those on zero hours contracts in 2015. It’s hoped that extending this to the lowest paid workers, will give people more choice to work multiple jobs if they wish to, and give more flexibility over when and where they work.
Recent Case Law
Provision, Criterion or Practice – Hilaire v Luton Borough Council
Requiring a disabled employee to attend an interview as part of a redundancy selection process, was found to amount to a substantial disadvantage.
A provision, criterion or practice, or ‘PCP’, is something that puts, or would put, a worker with a certain characteristic at a particular disadvantage, when compared with someone who does not share that characteristic. The recent finding in the case of Hilaire v Luton Borough Council illustrates how a PCP can be considered in case law.
At Tribunal it was found that the requirement to attend an interview as part of redundancy selection (the PCP in question) did not place him at a disadvantage, as it was the Claimant himself who chose not to engage with the process, as he believed that managers were conspiring to dismiss him. However, the EAT found that the tribunal had applied the wrong test; they considered whether or not the Claimant was capable of attending, whereas they ought to have considered whether or not it was more difficult for him to attend, due to his disability. Hilaire had difficulty with memory, concentration, and social interaction, and the EAT found that it was obvious these problems would affect his participation, compared to someone who was not disabled.
However, it was still recognised that the tribunal had been entitled to dismiss the claim, as it was the Claimant’s loss of confidence in his employer, rather than his disability, that prevented him from attending the interview.
Human Rights Day
Every year on 10 December, the world celebrates Human Rights Day. On this day in 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR). This sets out fundamental human rights and freedoms, regardless of our nationality, gender, place of residence, religion, or any other status.
This year’s Human Rights Day will launch a year-long campaign, looking at the legacy, relevance, and activism surrounding the Declaration, leading up to the 75th Anniversary of the UDHR in 2023.
This year’s message is ‘“Dignity, Freedom, and Justice for All”, and the aim of celebrating this day is to increase knowledge of the UDHR, and to stand up for and address human rights issues globally.
Some dates for your diaries;
- 5th December – International Volunteer Day
- 10th December – Human Rights Day – https://www.ohchr.org/en/get-involved/campaign/human-rights-day
- 25th and 26th December – Christmas Day and Boxing Day (Bank Holidays are 26th and 27th December, and 2nd January)
- 4th January 2023 – World Braille Day – celebrating the human rights and access through the invention of braille for those who are blind and visually impaired
- 15th January – World Religion Day – to promote interfaith understanding and harmony
- 21st January – Race Against Dementia Day
We wish everyone all the best over the festive season.
Note: The above guidance was correct at the time of writing this article on 5/12/22. This does not constitute legal advice and is for information purposes only.
If you have any questions regarding the content of this newsletter or would like more information to support your business with the changes, please get in touch.