In this article, GMLC employment campaign volunteer lead Avaia Nightingale Williams explores recent updates and decisions impacting employment rights in the UK, as well as considering some upcoming or ongoing changes.
In recent months, the landscape of employment law has seen notable developments, with some aiming to enhance workers’ rights whilst others have drastically curtailed them.
Pensions and Young Jobholders
On 18 September, the Pensions (Extension of Automatic Enrolment) Act 2023 received Royal Assent and is a small step towards securing financial stability for younger workers. The Act extends the automatic enrollment onto pensions schemes to workers aged between 18 and 22, enabling them to begin saving for retirement earlier. Additionally, it removes the Lower Earnings Limit (LEL), allowing savings from the initial pound earned. A phased implementation plan spread over two to three years is expected to allow employers time to adjust to the new scheme.
Whilst statistics on the number of 18–22-year-olds in work are not readily available, the Act is likely to have an impact on several hundred thousand existing young workers as well as all who enter the workforce from these ages.
Predictability in Atypical Work Hours
The Workers (Predictable Terms and Conditions) Act 2023 seeks to provide a buffer for workers on non-standard contracts, most notably those on zero-hours contracts and temporary work agreements. The aim of the Act is to allow such workers, subject to certain criteria, to request more predictable working hours, with employers obliged to respond within one month. It is not expected that the Act and New Regulations will come in to force until possibly September 2024.
Whilst this initially appears to be a positive step in the right direction, employers are empowered to reject requests for broad and easily manipulated reasons. The likely impact of this Act in practice is likely going to be arbitrary at best.
Addressing Third-party Harassment
The Worker Protection (Amendment of Equality Act 2010) Bill 2022-23 is still making its way through Parliament. The Bill was introduced to create employers’ liability for harassment of their employees by third parties, including a duty on employers to take all reasonable steps to prevent sexual harassment of their employees – a positive step. However, several clauses have been removed as the Bill passed through Parliament. The Bill has managed to retain a duty on employers to prevent sexual harassment, albeit with a drastically reduced burden of only taking “reasonable steps” to do so, rather than “all reasonable steps” as previously envisaged. In short, the Bill has been stripped of the protections first introduced by this Liberal Democrats Ballot Bill. The Bill passed its final stage in the house of commons on 20 October 2023.
Minimum Service Levels Act Reported
Since we last wrote about the strike legislation in an interview with John Hendy KC, the Strikes (Minimum Service Levels) Act 2023 is now in force and has immediately garnered international attention, with the Trades Union Congress reporting the UK Government to the International Labour Organization due to the Act falling short of international standards. The Act, which received substantial criticism during its progression through Parliament, sees the right to strike substantially limited for workers within specified industries, reducing the effectiveness of strikes.
The TUC General Secretary, Paul Nowak, said “Unions defeated the government in the High Court over the unlawful use of agency workers during strikes. We are determined to win again. These laws haven’t been designed to resolve conflict at work, they’ve been designed to escalate it.”
Flexibility in Employment Relations
In February, we wrote about the proposed changes to flexible working. Since then, the Employment Relations (Flexible working) Act 2023 was brought into force, increasing the number of requests to two per year, employers must make a decision within 2 months of the request. The right still only applies to employees with 26 weeks’ continuous service. It has not been extended to workers. It is understood that the government has indicated that it intends to change the 26 weeks’ continuous service requirement for employees, but, as yet, no legislation has been published to bring this into effect.
As we have already noted, the Act does not adequately protect employees who wish to work flexibly and, provided this remains a ‘right to request’, it could lead to unforeseen negative consequences.
‘Three-Month Break’ Rule Receives Supreme Court Opinion
This month, the Supreme Court handed down a pivotal judgment in respect of holiday pay entitlements, altering the landscape for claims. Upholding a prior decision by the Northern Ireland Court of Appeal, the ruling states that a series of previous deductions won’t necessarily be disrupted by a three-month gap between them. Prior to this ruling, it was law that, where a worker was consistently paid incorrectly, they could only claim for the most recent underpayment.
The implications of this decision, binding in various UK jurisdictions, underscore the necessity for employers to meticulously calculate holiday pay and will drastically increase the number of employees able to bring claims in the Employment Tribunal. Shantha David, head of UNISON’s legal team stated: “the previous interpretation meant workers couldn’t get compensation where a series of similar underpayments had happened three or more months apart. The Supreme Court understood here that this could allow some employers to game the system by spacing out holiday payments over more than three months.”
Weekend Work Mandate Upheld
An Employment Tribunal has sided with Cumbria NHS Foundation Trust against a mother of two disabled children after dismissing her for refusing to work weekends. Mrs Dobson, a community nurse, was fired for her refusal to work occasional weekends, citing childcare issues as the primary obstacle. The Tribunal weighed the Trusts desire to transition to 24/7 care against Mrs Dobson’s need to care for her children on weekends, ultimately deeming the weekend work requirement as proportionate.
The judgment is an unfortunate step back in respect of women’s rights, as acknowledged by the Tribunal, questions concerning children and childcare disproportionately impact women and there is significant risk of discrimination occurring.
ICO Issues New Guidance on Monitoring Workers
Considering evolving work scenarios and technological advancements, the Information Commissioner’s Office has released new guidance to navigate the complexities of worker monitoring to ensure adherence to data protection law and principles. Traditional monitoring of emails, internet usage, and calls has seen a draconian turn, with some employers implementing tracking software including keystroke tracking and webcam surveillance, especially for those who work remotely.
The new guidance requires employers to be transparent in their monitoring and requiring lawful basis for processing any data. Additionally, employers must now undertake impact assessments on any monitoring practices that pose a risk to workers’ rights.
A Rise in the National Living Wage
In financial news, the Chancellor has announced an upcoming rise in the National Living Wage (NLW). This adjustment, expected to be formally announced in November, seeks to accept the Low Pay Commission’s recommendations, and is anticipated to uplift the NLW to over £11 per hour from April 2024. The NLW is only applicable to those 23 and over and will see those on this wage receive an annual increase of over £1,000 per year.
Whilst the increase is welcome, it is likely to still fall short of the Real Living Wage, a calculation based on living costs. With the cost-of-living-crisis and inflation still having a major impact, many will still be struggling despite the increase. The Low Pay Commission will make recommendations in November 2023 on increases to all national minimum wage rates.
Conclusion
It is clear from these recent changes and proposals that workers’ rights in the UK are in a tentative state. Some moves, such as the extension of pension enrollments for young workers and more secure ICO guidance on monitoring are welcome additions to the employee rights landscape; however, others, including the watering-down of third-party and sexual harassment protections as well as draconian changes to strike laws show how workers’ rights are, overall, being undermined under the current government.
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Avaia is an unregistered barrister and was formerly a Trade Union Representative at Citizens Advice Manchester as well as a national delegate for Unite the Union. If you are interested in working with GMLC on protecting and strengthening employment rights, either as a campaigner, practitioner or on an organisational level, you can email us at development@gmlaw.org.uk.
Please note: an earlier version of this article was posted on 26 October 2023 but has now been updated with corrections as of 27 October 2023.
