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Christmas Employment Law Message from Colleton Chambers

I am writing to wish you all a very happy Christmas and to thank you all for your continued instructions. This year has seen my mention in Legal 500 and James Gould start his pupillage with me. It has also been a busy year in the Employment Tribunal as those of you who made it to the seminars, I rolled out will no doubt be aware.

So, as we frantically finish those time-sensitive pleadings and set our minds to Christmas, what has caught my attention in the last few weeks?

As I write in the week when the postal workers are working, but train operators and nurses are on strike, do you remember, on 26th July 2022, the Secretary of State for Transport, Grant Shapps outlined further proposals for restricting industrial action including:

• maintaining minimum staffing levels during strikes in ‘critical national infrastructure’ industries like the railways;
• limiting pickets at points of critical national infrastructure to six;
• banning strikes by different unions in the same workplace within a set period;
• raising the minimum notice for industrial action from two to four weeks;
• raising the minimum voting in favour of strike action from 40% to 50%; and
• introducing compulsory ‘cooling-off periods’ of up to 60 days after strikes.
(These issues were replicated in the Transport Strikes (Minimum Service Levels) Bill introduced in Parliament on 20th October.)

On 6th September 2022, when Liz Truss was appointed Prime Minister (and the lettuce was put in the fridge), she proposed a review of the IR35 rules, which she stated she believed was wrongly taxing the self-employed, and making changes to the rules on taking breaks, the 48-hour working week and calculating holiday pay under the Working Time Regulations (all part of the EU Reform Bill).

By October, a number of private members bills had entered Parliament and are currently progressing through the House of Commons.

On 5th December, the government confirmed that new legislation would:

• make flexible working requests a day one right for employees (thereby removing the current 26 weeks’ service requirement);
• allow employees to make two requests a year (currently only one request is possible);
• require employees to consult with the employee before rejecting a request;
• shorten the time employers have to reply to a request from three to two months; and
• remove the requirement for employees to set out the likely effects on the business of the change.
The government is backing the Employment Relations (Flexible Working) Bill currently going through Parliament and will produce regulations to remove the service qualification. There is no enforcement date yet.

It has also been suggested that the Worker Protection (Amendment of Equality Act 2010) Bill could also receive government backing. The bill would reintroduce employers’ liability for the harassment of their staff by third parties (clients, suppliers, the public and so on) which was removed in 2013. The bill would also require employers to proactively prevent the sexual harassment of their staff in the course of their work. However, employees would have to successfully claim sexual harassment in a tribunal before being recompensed (by a 25% uplift in any award they receive) for their employer failing to prevent the harassment occurring.

New regulations which came into force on 5th December extending the ban on exclusivity clauses (intended to prevent employees from working for more than one employer) in zero-hours contracts to those on or below the lower earnings limit (set at £123 a week for the 2022-23 tax year).

New National Minimum Wage rates were announced on 17 November 2022 for the tax year beginning 1 April 2023. The rates are as follows:

• Workers aged 23 and over: £10.42 an hour (National Living Wage);
• Workers aged 21-22: £10.18 an hour;
• Development rate for workers aged 18-20: £7.49 an hour;
• Young workers rate for workers aged 16-17: £5.28 an hour; and
• Apprentice rate: £5.28 an hour.
From 2nd April 2023 statutory maternity, adoption, paternity, and shared parental pay rises from £156.66 to £172.48 a week, and statutory sick pay rises from £99.35 to £109.40 a week.

Some things to be thinking about over your mulled wine and mince pies!

Happy Christmas and New Year to you all.

PS. From now on and into the New Year don’t forget the term of address in the ET has changed- our ET Judges are no longer ‘Sir’ or ‘Madam’ but ‘Judge’ (same applies to DJs).

Sarah Hornblower

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