EMPLOYMENT AFFAIRS –LOOK AHEAD

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The Government response to the consultation on Flexible Working has been published and draft legislation is in progress. The right to request flexible working will become a day one in employment right, employers will have a duty to consult an employee before a request can be refused, the decision period for an employer to decide on a request will be reduced from three months to two months, and two statutory requests will be allowable in any 12 months rather than the current one. As yet there is no date when these changes will come into effect.

Whilst still in the early stages of drafting, the Worker Protection (Amendment of Equality Act 2010), makes provision to follow up on the Government commitment to develop a statutory code of practice on sexual harassment. It will include a new duty on employers to take reasonable steps to prevent such harassment, (perhaps by training for employees and a complaints procedure). It will also apply to any form of harassment of employees by third parties, (e.g. client, subcontractor, supplier). For breaches, any compensation awarded by a tribunal can be increased above the standard award.

Disability is often considered in terms of physical problems or illness and reasonable adjustments to an employees work arrangements considered by employers to assist. ACAS have recently published new guidance, Reasonable Adjustments for Mental Health. The definition of disability in respect of employment includes, ‘a mental or physical impairment that has a substantial and long-term adverse effect on a person’s ability to carry out day to day activities’. The guidance includes what such adjustments entail, offers examples, and explains the process of requests and employer response.

You may recall the P&O Ferries action in summarily dismissing seafarers with a view to replacing them with cheaper labour, all part of the potential difficulty for an employer in seeking to change substantive terms of service.

As a consequence, the Government is consulting on a statutory code of practice on ‘fire and re-hire’. The code will set out the steps an employer should take when seeking to change terms of service, which will include meaningful consultation and that fire and re-hire should be a last resort. Employment Tribunals will have the power to increase compensation above the standard award in the event of non-compliance by an employer.

Establishing, properly recording and notifying the correct date of any dismissal is important as certain employee rights are time limited from that date.

The proposal is that the start position would be all cases heard by an Employment Judge sitting alone, on occasion a panel could be used depending on the actual claim, complexity and issues to be considered.