Employment legislation update: October 2021

In this update, we look at the latest legislation updates such as managing flexible working, tipping and gratuities, carer's leave and the consultation for Covid pass.

Making flexible working the default

On 23 September the Government launched a public consultation on proposals to reform the existing flexible working regulations. Responses are required by 1 December.

The proposals extend to England, Wales, and Scotland. 

The existing right to request flexible working only applies to employees with 26 weeks' continuous service. The main change that is proposed is to make it a day one right.

The request may relate to a permanent or temporary change in relation to the hours of work, time of work or place of work.

The employer will still have the right to refuse the request but it is inviting comments as to whether changes are necessary to the eight business reasons provided for refusing a request. The consultation wants to encourage employers to suggest alternatives to the arrangement requested by the employee if it is refused.

It is also suggested that changes be made to the administrative process predominantly reducing the current three month period that the employer has to deal with the request and allowing for more than one request per year from the employee, acknowledging that a person’s circumstances can change unexpectedly. 

The outcome of the consultation may be that amendments will be made to the Flexible Work Regulations. However, it is unlikely that these will fundamentally change their scope. There will still be no right to work flexibly, it will remain a right to request. Whilst this may become a request that can be made by the employee as at day one of employment it will still be possible for employers to refuse on business grounds. 

The most likely challenges that an employer will face will be, as now, claims of indirect discrimination in respect of the policy that requires the employee to work from a particular location or do more or different hours than they wish. 

Recent case law has shown that such challenges can be successful on the grounds of sex and disability discrimination. In particular it has been held* that there remains a childcare disparity between men and women meaning that women will be placed at a disadvantage by having to work longer or unsocial hours. Whilst in another case** it was held that an employer who had prevented a mother of a disabled child from working from home was guilty of indirect disability discrimination. 

Whether these types of claims will in the future be accompanied by allegations that the employer is also in breach of the Flexible Work Regulations will depend on the extent to which the reasons behind the refusal may be questioned by the Employment Tribunal. At present there is little scope to challenge that decision and the proposals appear to fall short of providing that it will be subject to any test of justification in the future.

*Dobson v North Cumbria Integrated Care NHS Foundation Trust
**Follows v Nationwide Building Society

Consultation Response: tipping and gratuities

Following a public consultation exercise in 2016 on tipping, gratuities, cover and service charges it has now been confirmed that legislation will be introduced to ensure that workers receive all the tips left for them. This may sound familiar as it had been previously announced in October 2018 that such legislation would be introduced at the earliest opportunity. 

The latest Government announcement states the legislation will be included in the Employment Bill when that is made. However, the new tipping rules will not be implemented for at least a year after the Bill has been enacted, meaning that it appears unlikely that any new legislation will be in force before 2023.

The measures will not prohibit the continued use of Troncs provided that the distribution of tips is made in a fair and transparent manner and within the time limits set out.

Enforcement will be in the Employment Tribunal with workers having the right to make claims against employers who are in breach.

Consultation response: carer's leave

The government has published its response to the 2020 consultation on carer's leave, confirming its intention to introduce a new statutory right for unpaid carers to take up to one week (five working days) of unpaid leave per year.

The right will apply in England, Wales and Scotland.

This will be a day one right under which employees may take leave to care for a spouse, partner, civil partner, child, parent, a person who lives in the same household or a person who reasonably relies on them for care. 

It is conditional on the individual being cared for having a long-term care need which is defined as a long-term physical or mental illness or injury, a disability as defined under the Equality Act 2010, or issues relating to old age, although there will be limited exemption.

Employees will be able to self-certify their eligibility for leave, which may be used for providing care or making arrangements for the provision of care for a dependant who requires long-term care. This could include providing care for someone who reasonably depends on the employee for care while their primary unpaid carer is taking respite.

The leave may be taken whole individual days or half days, up to a block of one week. Employees will be required to give notice which is twice the length of the leave being requested, plus one day. A leave request may not be denied, but may be postponed by an employer where they consider that the operation of their business will be unduly disrupted. 

There will be protection against detriment or dismissal for those taking carer's leave. 

Consultation: COVID-19 pass for nightclubs & large events

On 27 September 2021, the UK government launched a call for evidence on mandatory COVID-19 vaccine certification for certain venues in England. The proposal is to introduce this as a measure should the NHS come under pressure in the Autumn/Winter period.  It would require visitors and workers at nightclubs and venues that host large events would need to show evidence of vaccination. 

The consultation asks for views on the list of venues and events that will be subject to the vaccine certification requirement and whether staff working in those venues should be vaccinated, or be regularly tested. 

If imposed the requirements would be enforced by local authorities. 

Responses must be submitted by 11 October 2021.