Employment law update: laws on the horizon – September 2023

UK employment law is an ever-changing landscape. Whilst this brings about opportunities for organisations and their staff to beneficially adapt and grow, it can also make it difficult for them to keep up to date with the frequent changes.

Several Bills are making their way through Parliament as we speak and case law developments are emerging frequently, all of which has the potential to change employment law as we know it.

We summarise some of these Bills and developments below, for the purposes of providing our readers with a head-start on important employment law changes.

Legal updates

• The Strikes (Minimum Service Level) Act received Royal Assent on 20^th July 2023. The Act intends to secure a minimum level of service during periods of strike in specified services, including in the rail, ambulance and fire and rescue services. This will be achieved by the Secretary of State setting “minimum service levels”. Once the new law is implemented, affected employers be able to send a “work notice” to trade unions ahead of strikes, specifying the workforce required to maintain service through skeleton staff. The unions will be obliged to “take all reasonable steps” to comply with the work notice. A consultation on these “reasonable steps” was launched on 25^th August 2023 and is expected to be open for 6 weeks.
• On 6^th September 2023, ACAS closed its consultation on a new draft Code of Practice on handling flexible working requests, which seeks to encourage a more positive approach to flexible working. The current code is being updated in line with the changes which will be brought by the Employment Relations (Flexible Working) Bill. This legislation, which is expected to come into force in 2024, will amend the flexible working rules by making it a day-one right for all employees.
• The Employment (Allocation of Tips) Bill, which will make withholding tips from staff unlawful, is expected to come into force in 2024. The Government will introduce secondary legislation and a statutory Code of Practice to support the Bill. Employers will be required to allocate and pay tips to their workers within one month. Moreover, where tips are paid on more than an occasional or exceptional basis, there will be additional obligations for the employer including having a written policy in place relating to tipping and record keeping. If in breach, employers could be taken to an employment tribunal and be required to pay up to £5,000 in compensation.

Case law developments

• Owen v Network Rail Infrastructure Ltd

The Employment Appeal Tribunal (“EAT”) allowed an appeal against an employment tribunal’s decision that in the absence of any evidence to explain the late submission of a claim, it could not consider whether it was just and equitable to extend time in order to bring a discrimination claim. It was clarified that while not providing a reason or explanation for a late submission was a relevant consideration, it was not necessarily a decisive one and should not automatically result in a refusal to extend time.

• AECOM Ltd v Mallon

The EAT upheld an employment tribunal’s finding that requiring a job applicant with dyspraxia to submit an online application form put him at substantial disadvantage. It was further confirmed that this triggered the employer’s duty to make reasonable adjustments. Whilst the applicant did not respond to an email requesting further details about his disability, beyond his initial request to make an oral application due to his dyspraxia, it was held that a reasonable employer would have telephoned him to enquire about his difficulties.

• Habib v Dave Whelan Sports Ltd t/a DW Fitness First

The EAT held that an employment tribunal erred by challenging the credibility of a claimant with dyslexia without having regard to the Equal Treatment Bench Book and Presidential Guidance on vulnerable witnesses. It was concluded that the hearing had therefore been unfair and that the case would be remitted to a fresh employment tribunal.