WORKERS (PREDICTABLE TERMS AND CONDITIONS) ACT 2023 (PREDICTABLE TERMS ACT) 

In Great Britain, the Workers (Predictable Terms and Conditions) Act 2023 (Predictable Terms Act) passed into law on 18 September 2023.

When in force, this Act will provide workers & agency workers (wider category than, but includes, employees) on atypical contracts the right to request a more predictable work pattern.

The process will be based on the current flexible working regime which many will be familiar.

The right will provide for:

• Two applications in 12-month period;

• Applications can be rejected on statutory grounds again based on flexible working grounds;

• Fixed term contracts of 12 months will have a right as these are presumed to lack predictability.

• Right based having worked set period before they can make their application, which is expected to be 26 weeks.

NB: Given the proposals aim to support those with unpredictable contracts, workers will not have had to have worked continuously during that period.

Legal claims will be able to be pursued on grounds of:

• procedural failings
• unlawful detriment and
• automatic unfair dismissal

It is expected that the Act and secondary legislation will come into force in approximately September 2024, to give employers time to prepare for the changes.

ACAS is producing a new Code of Practice that they will provide clear guidance on making and handling requests.

The aim of the Code is help workers and businesses understand the law and have constructive discussions around working arrangements that suit them both.

A draft Code will be available for public consultation in the coming weeks. The Government Press Release can be viewed here.

This right will only apply in GB.  Those operating in ROI may know of the EU Directive on Transparent and Predictable Working Conditions  which contains similar requirements.  And with the General Election and if that results in Labour. This may impact in this new right.

Employment law is devolved in Northern Ireland and with no Stormont that current means no new employment law.

Event Brochure 2023

Our event brochure for the second half of 2023 can be Download Here

Our programme covers a variety of key employment topics with courses designed for HR professionals and also managers who deal with employment relations issues.

Early booking is recommended to secure a place.

PERSONAL DATA BREACHES, PSNI & EMPLOYER’S LEGAL RESPONSIBILITIES

The PSNI personal date breach of 8 August 2023 was rightly reported as headline news. The personal data discloses included the names of all serving polices officers and staff that were reportedly published online and available to the public for a 2 ½ hour period between 14.30 -17.00 hour on that date.

It is reported that the breach occurred as part of a response to a Freedom of Information request and from all accounts appears to have been a human error.

This is a huge a security issue for any business but of grave concern for the PSNI, in which there is a potential risk to life as a result of the breach.

There will be many questions to be answered by the PSNI as to how the breach occurred and what systems it had in place to prevent such breaches and deal with them when they occur. The PSNI has already stated that some improvements have been identified to prevent a similar breach occurring again. It is a timely reminder to all business to check their policies and procedures that apply in circumstances of a personal data breaches and audit their processes /systems again to minimise the risk of human error cauing a breach.

How employers respond if and when a personal data breach occurs? The action taken should include the following:

1. For the PSNI this breach is one that must be reported to the ICO within 72 hours as it is “likely to present a risk to the rights and freedoms of individuals.”

   An internal record should also be made of the breach.

   The ICO Guide (see below) provides details about when a report should be made and what information should be included in any report.

2. PSNI should also be contacting all persons named without undue delay, which the news is reporting they have done. The communication should include guidance on what the person can do to protect their personal data.

3. We know that the information has been removed and again in similar circumstances employers should take steps to ensure the information i deleted, if possible. We have seen PSNI publicly announcing the breach and asking persons to delete the information if they have it and that they are continuing their investigation into how wide the breach was.

4. Organisations need also consider notifying other parties affected such as customers.

5. PSNI would be expected to have a process and/or policy setting what they should do in the event of a personal data breach. Indeed, it is a good time for Organisation to examine their investigation and internal reporting procedures that they have in place for when breaches occur. see ICO ‘Preparing for a personal data breach”.

6. Importantly, the ICO will also want to examine the processes and protections the Organisations had in place to prevent the breach in first place.

In this scenario, in time you might expect the ICO to use its powers to issue a penalty notice, enforcement notice, information notice etc.

The ICO Personal Data Breaches Guide explains employer’s responsibilities if they find themselves in similar circumstances. The Guide covers:

• What is a personal data breach?
• Risk-assessing data breaches
• When do we need to tell individuals about a breach?
• What information must we provide to individuals when telling them about a breach?
• What breaches do we need to notify the ICO about?
• What role do processors have?
• How much time do we have to report a breach?
• What information must a breach notification to the ICO contain?
• What if we don’t have all the required information available yet?
• How do we notify a breach to the ICO?
• Does the UK GDPR require us to take any other steps in response to a breach?
• What else should we take into account?
• What happens if we fail to notify the ICO of all notifiable breaches?

The Guide is very user friendly; any Company will any concerns or queries should contact the Legal Team.

NORTHERN IRELAND RESEARCH PROJECT: IMPACT OF PARENTAL LEAVE POLICIES ON LABOUR MARKET (24 July 2023) 

Queen’s University has recently published its  Research Findings assessing the impact of Parental Leave policies on different labour market outcomes for men and women following the completion of 12 consequential waves of research using the UK longitudinal study (201-2021).

The research was commissioned by the Department of Economics against a backdrop of an ageing population and a declining replacement level (the overall fertility rate required for a country’s population to exactly replace itself from one generation to the next) and the impact of this, from an economic perspective, for a country to meet the growing demands of his older population.

The increasing economic activity and employment rates for women in the last half a century has resulted in women having less children, or having children older, and has created a tension between labour market participation and childbearing, with Northern Ireland (and the UK) where gendered parenting norms prevail.

Parental Leave Policies are therefore of significant importance in trying to reconcile this tension and maintain and increase female participation in the workplace, whilst at the same time ensure the replacement level does not exponentially decline.

The aim of the research was to assess the relationship between parental leave and key demographic characteristics and labour market outcomes.

The research investigated three main issues namely:

1. Main determinants of taking Parental Leave and its duration.

2. What influences the decision to switch to part-time employment as a coping strategy to combine work and family responsibilities.

3. How taking Parental Leave impacts on wages.

FINDINGS INCLUDE: 

Unsurprisingly, the findings support much of the existing empirical literature.

1. Main determinants of taking Parental Leave and its duration:

Married parents are more likely to take Parental Leave than single parents with parents in government job or the NHS more likely to take it than those working in private sector companies. This is most likely to be because of enhanced occupational parental leave policies and financial dependability with married couples as well as the perception that taking parental leave is less likely to have an impact on career progression in public sector employment than in the private sector.

Pay, unsurprisingly, was found to have a direct impact on the taking of leave, with higher pay resulting in shorter periods of time off. Higher pay creates the incentive to return to work sooner after childbirth as the impact of reduced pay is more likely to have a greater impact than those with lower earnings.  For women, higher pay also acts to reduce likelihood they will extend maternity leave beyond the paid period of 39 weeks.

The effect of pay on taking leave, is stronger for men than women, perhaps suggesting men are more likely to take parental leave when have higher pay & career stability, whereas this doesn’t seem to apply for women.

2. Women are more likely to go Part Time than men.

Again, reflecting both the anecdotal and statistical research within recent time, the study found that part time work is a common strategy that mothers use to facilitate work with childcare and feeds into the calls for a dedicated childcare strategy for the region.

The data also indicated that older mothers are less likely to switch from Full to Part time employment after a period of leave, as are mothers with higher pay. This is most likely because women with greater financial resources can pay for childcare to return to work on a full-time basis.

This again reinforces the much-debated issue that the lack of affordable childcare acts as a barrier for lower-earning and younger mothers to return to full-time.

Given that part-time employment negatively impacts or ‘scars’ women future career progression and labour market outcomes, this has implications for both the gender pay gap and the pay gap between mothers who do return to work full-time and those who don’t.

3. How Parental Leave impacts wages

Finally, the research explored what impact, if any, the taking of parental leave had on wages and whether the duration of the leave also played a part.

For mothers, it found that the wage penalty of taking parental leave is only evidenced for mothers who take more than 39 weeks leave. Previous studies found that that periods of short or moderate leave have no effect on female earnings, but lengthier leaves are associated with substantial wage reductions.

CONCLUSION 

Northern Irish economy faces persistently high levels of economic inactivity, and female employment is lower compared to the rest of the UK. 

There are strong arguments in favour of parental leave policies: proponents will argue that parental leave can promote healthier children, improve the position of women in the workplace, help households address the increasing conflict between work and family, and promote within-family gender equality in terms of labour market attachment. Support for parental leave will also feed into the governments key policy considerations for addressing the declining population level.

The key component in achieving a greater uptake in parental leave is designing it in way as to not detrimentally affect mothers’ labour market outcomes after leave has ended.

Overall, it finds of fundamental importance to the success of parental leave polices is generosity (financially) and length so that it can achieve the social and economic goals.

The Research also recommends that future research on effect of Shared Parental Leave.

Changes to Flexible Working Requests (July 2023)

The Employment Relations (Flexible Working) Act 2023 has now passed through all stages and received Royal Assent on 20 July 2023.

In its Press Release the Government stated ‘As well as clear benefits to workers, the measures are also good for British business. 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.’

It is expected that the measures in the Act and secondary legislation will come into force in a year’s time, to give employers time to prepare for the changes and likely to be in and around April 2024.

What changes

When in force it will change the current flexible working provisions in Great Britain by:

1. Expressly allowing flexible working applications to request changes to Working Hours, Times or Location.

In reality most business accepted allowed applications to be made on these grounds.

2. Allow two applications to be made in any 12-month period.

Currently only one application is allowed in any 12-month period. 

3. Providing that employees do not need to explain effects of changes, nor do they need to explain the impact that granting the request would have on their role and how that might be dealt with.

Currently employees need to detail this in their application.

4. Applications cannot be refused without consultation with the employee.

Currently employers only need to discuss the request with the employee; at present there is no detail about the quality of consultation that will be required which may be fleshed out in secondary legislation.

5. Decisions must be issued within 2 months.

Currently the period is 3 months.

Commentary 

It was anticipated this would be a Day 1 Right. However, under the law as currently drafted employees still currently require 26 week’s service to be eligible.  The Government has indicated this will be introduced through separate, secondary legislation, but no date has yet been provided. The new laws are not expected to take effect until 6 April 2024, with further details to be contained in forthcoming regulations (not yet published).

The law will only apply in England, Wales & Scotland and with the continuing the stalemate at Stormont it is further serving to widen the gap in laws between NI and the rest of GB.

ACAS Consultation on update Code of Practice on handling requests for flexible working

In conjunction with the legislative changes detailed above, ACAS (the equivalent of the LRA in GB) has launched a Consultation on Updates to its Code Of Practice on handling requests for flexible working-  Consultation on Updates to its Code Of Practice on handling requests for flexible working

The purpose of that Consultation is ‘to provide employers, employees and representatives with good practice advice on how the new flexible working rules should work in practice. Statutory Codes of Practice are not legally binding, but they are taken into account by courts and employment tribunals when considering relevant cases.’

The ACAS Consultation closes on 6 September 2023.

Strikes and Use of Agency Workers

On 13 July 2023, the High Court handed down its Judgment of R (ASLEF and others) v Secretary of State for Business and Trade [2023] EWHC 1781 (Admin), which quashed the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022.

These Regulations had allowed employment agencies in Great Britain to supply workers to cover employees on strike. The Regulations were challenged to the High Court by thirteen different unions by way of a judicial review.

The challenge was on two grounds, namely:

1. The Government failed to comply with its statutory duty to consult before making the 2022 Regulations (“Ground 1”).

2. It was contended that, by making the 2022 Regulations, the Secretary of State had breached his duty under Article 11 of the European Convention on Human Rights (“ECHR”) to prevent unlawful interference with the rights of trade unions and their members (“Ground 2”).

In a fifty-page Judgment, Mr Justice Linden allowed the challenge to proceed on Ground 1 only, finding that there was inadequate consultation.

The High Court declined to comment on Ground 2, i.e. whether  the Regulations had breached Article 11 of the European Convention on Human Rights, stating amongst other points that:

• any comment the Judge would make would be obiter; and
• if consultation were to be carried out, the basis of the evidence as it currently stands could change and would potentially lead to further complication and/or the Judge’s decision might well prove to be redundant.

This Judgment will be welcomed by Employment Agencies who were placed in an invidious position. The Recruitment and Employment Confederation (who are the voice of the recruitment industry) did not support the Regulations and spoke out against them when they came into force. However, it may not be the end of the line for the Regulations; and if government remains intent on bringing them into force then they can now either consult on the Regulations or appeal the Judgment.

As employment law is devolved, the Regulations never applied to Northern Ireland and even if Stormont is restored we doubt that anything similar would be brought in here.

COMPENSATION – IMPORTANT REMEDY DECISIONS (8 July)

Historically June is a busy month for practitioners and the Courts trying to finish up before the summer recess period. And in keeping with that tradition, a number of interesting Judgements have been handed down by the courts.

These included two significant remedy Judgments that we have commented on below.

Maya Forstater v CGD

Forstater is the gender critical case that was determined last year.

In the merits Judgment, the Tribunal found that CGD had discriminated against Forstater when it decided not to offer her full employment or to renew her Visiting Fellowship because of her gender critical beliefs. This was found to be discriminatory.

This year the remedy hearing took place in March 2023 with the decision issued in June 2023. The Tribunal awarded Forstater a total sum of £106,404.31 compensation made up of (approximately):

• £25,000 for injury to feelings
• £2,000 for aggravated damages **
• £14,000 for loss of earnings
• £50,000 for loss of chance of earnings (equivalent to 1 year’s salary)
• £14,778.47 for interest

** Aggravated damages were awarded due to CGD’s public statements about the case which included: “We believe CGD must take a consistent stance against all forms of bigotry…..”

The Tribunal found that this, and other public statements, amounted to oppressive or high-handed conduct in that the Company had overstated the judicial observations about Forstater’s belief and in that in doing so, they equated that belief to bigotry. The Tribunals findings and comments are a stark reminder for Organisations to be careful for their communications during litigation.

Jhuti V Royal Mail Group

Jhuti is a well-known case for a variety reasons. It is a whistleblowing case that has been considered by the Court of Appeal on two separate occasions and pathed the way for the Official Solicitor to act as a Litigation Friend** in Tribunal cases in GB as Claimant was found to lack capacity to litigate on her own behalf.

[**NB: Northern Ireland is different and at present the Official Solicitor does not have standing to act as a Litigation Friend in our Tribunals, we are, however, currently involved in a Northern Ireland case in the Court of Appeal on this very point with Judgement imminently expected.]

The merits Judgment found that Jhuti was unfairly dismissed and suffered detriments (bullying and harassment over a period of months) after she raised concerns that Ofcom guidance was breached. The bullying and harassment included criticisms, setting unfair targets, holding mandatory meetings and making unwarranted criticism of her performance. As a result of these actions, Jhuti i went off ill and became extremely unwell.

Following the merits Judgment, the Tribunal provided the parties with time to try and agree compensation. When parties were unable to agree compensation courts awarded Jhuti a figure £2,365,614.13 made up of:

• £718.50 for Basic Award for Unfair Dismissal
• £494,213.79 for Past Losses
• £1,079,165.07 for Future Losses (including Pension Loss)
• £67,265 for Detriment Compensation
• £8,229.49 for 0.5% Uplift for a failure to follow ACAS Code
• £716,022.28 for Grossing Up for Tax

Whistleblowing Claims (same as in discrimination claims) damages are uncapped, and this case is an example where significant damages can be awarded to Claimants where they have been unfairly and unlawfully treated by their employer as a result of making a protected disclosure. It also demonstrates that when assessing compensation, the Tribunal will consider both the discriminatory acts but also their impact on the person and you take the person as you find them. So, whilst one person may suffer moderate hurt, upset and humiliation another person’s reaction can be more extreme and become very unwell. In those latter circumstances the compensation will be significantly higher.

WORKPLACE BULLYING (13 July 2023)

It may still come as a surprise to some, but there is no stand-alone legal claim outlawing workplace bullying, unless it is on grounds of a protected characteristic (for example on grounds of their sex, religion, sexual orientation, race etc).

As a result of this, if a person is bullied in the workplace, and it is not on grounds of a protected characteristic, then the main remedy (if they are an employee not available to workers) is to resign and claim constructive unfair dismissal. There are other claims that they can pursue in the civil court such as under the Protection of Harassment (otherwise known as stalker legislation) or a personal injury claim if the bullying resulted in any personal injury such as psychiatric injury.

However on 11 July 2023, Rachel Maskell (MP for York Central) presented a Bill to parliament to introduce a statutory definition of workplace bullying at work.

The Bill, if enacted, would:

• Introduce a statutory definition of workplace at work.
• Enable stand-alone claims relating to workplace bullying to be considered by an employment tribunal;
• Provide for a Respect at Work Code to set minimum standards for positive and respectful work environments;
• Give powers to the GB Equalities and Human Rights Commission to investigate workplaces where there is evidence of a culture of, or multiple incidents of bullying;
• Allow enforcement action to be taken for breaches and for connected purposes.
• Suggests a 6-month period to bring a claim.
• Provide for injury to feelings awards and compensation.

This is a Private Member Bill (PMB) and historically not many ever-become law. However, we have seen this change in the last year with the Government supporting several PMB including the Carers Leave Bill, the Neonatal (Leave and Pay) Bill and the Protection from Redundancy (Pregnancy and Family Leave) Bill.

As employment law is devolved in Northern Ireland, Rachel Maskells PMB would not apply if, if enacted, however  it could instigate a discussion on this and path the way for such laws in the future, should the Stormont Executive make a return.

The full discussion in parliament can be viewed here