Top 5 recent workplace developments – June 2023

This is our selection of recent developments which we think will impact on HR practice.

1.    ICO publishes new guidance for employers on data subject access requests 

New Q&A guidance has been published for employers on how to respond to subject access.

From April 2022 to March 2023, the Information Commissioner’s Office (ICO) received 15,848 complaints related to the right of subject access. In publishing the new guidance for employers, the ICO aims to clarify common misunderstandings and highlight the importance of responding to subject access requests (SAR) in line with the rules that apply to them and within the timeframe allowed.

The new guidance takes the form of questions and answers and covers some common questions employers may have about SARs, including when they can refuse to comply with a request, what information can be withheld, dealing with requests for CCTV footage and whether they must disclose any non-work-related personal information. 

Practical point

The new guidance for employers adds to, and repeats much of, the existing guidance, but contains some helpful examples and will be useful for employers when dealing with SARs. The guidance does, however, still leave many areas of uncertainty for employers.

2.    New laws pave the way for new rights for carers and parents

Three Private Members Bills were passed into law last week paving the way for the introduction of new employment rights for working carers and parents.

These new rights are:

-    Carer’s leave - unpaid carers will have the right to a week of flexible unpaid leave each year to care for a dependant with a long-term care need. It is not yet known when this right will come into effect, but it is thought not before April 2024. For more information, please read our update.

-    Neonatal care leave and pay – parents of babies who require specialist neonatal care following birth will be entitled to statutory neonatal care leave of up to 12 weeks’ paid leave. This will be in addition to any entitlement to other types of family-related leave they may have, such as maternity or paternity leave. This right is expected to come into effect in April 2025 according to Kevin Hollinrake MP on 22 May 2023, but we will need to watch this space.

-    Protection from redundancy for women and new parents – employers will be required to offer suitable alternative vacancies to a wider category of workers who are at risk of redundancy. Now only those on maternity, adoption or shared parental leave have this right, but under the new law pregnant employees and parents who have recently returned from family-related leave will also be covered. It is not yet known when this right will come into effect.

More details about these new rights and how they will work in practice will be set out in Regulations. 

Practical point

Employers should keep an eye out for further developments and may want to update their policies and procedures for when they come into effect.

3.    Government outlines post-Brexit changes to employment law 

The government has outlined planned changes to holiday entitlement and pay, non-competes and TUPE post-Brexit.

The plans include:

-    Limiting non-competes to three months - non-compete restrictions in employment and worker contracts will be limited to a maximum of three months by legislation. Read more about this development in our update. 

-    TUPE consultation changes - removing the requirement to elect employee representatives for the purpose of TUPE consultation for:
•    Businesses with fewer than 50 employees, and
•    Businesses of any size involved in a transfer of fewer than 10 employees. 

Read more about this development in our update. 

-    Holiday entitlement and pay changes and working hours record keeping changes - rolled up holiday pay will be allowed, and changes will be made to holiday entitlements and requirements on recording working hours. Read more about this development in our update. 

-    Scrapping the sunset clause - the sunset clause (which meant that at the end of 2023 what was left of certain retained EU law would disappear) is being replaced with a list of EU laws to be revoked. No key employment laws are being revoked. 

Practical point

There are still several unanswered questions about the planned reforms which will hopefully be answered when the draft legislation is published. Employers will want to keep an eye on developments over the coming months and prepare for the changes ready for when they come into effect.

4.    New guidance for employers on reasonable adjustments for mental health and on menopause and menstrual health published

Acas has published new guidance on reasonable adjustments for mental health conditions and the British Standards Institute has published new guidance on menopause and menstrual health in the workplace.

The Acas Reasonable Adjustments for Mental Health guidance provides practical tips for employers and employees, and covers a range of topics including:

-    What reasonable adjustments for mental health are
-    Examples of reasonable adjustments for mental health
-    Responding to employee requests for reasonable adjustments for mental health
-    Managing employees with reasonable adjustments for mental health, and
-    Reviewing policies with mental health in mind.

A new national standard to help employers manage menopause and menstrual health and retain women for longer has been published by the national technical standards body. BS30416 gives examples of good practice for employers and sets out recommendations for policies, work design, workplace culture and physical environment.

Practical point

These are useful new resources for employers. The creation of this British Standard on menstrual and menopausal health reflects the increasing awareness of these issues and recognition of how they can impact women in the workplace.

5.    Holiday pay - EAT ruling on calculating holiday pay on termination of employment

The Employment Appeal Tribunal (EAT) has decided that, when calculating pay for accrued but untaken statutory holiday at the end of employment under the Working Time Regulations 1998 (WTR), an employment contract (or other agreement) could not provide a formula for calculating the holiday pay which would result in a worker being paid less than the usual amount they would have been paid for working. 

Mr Connor was employed by Chief Constable of the South Yorkshire Police between 1 November 2002 and 29 May 2020, when he was dismissed following a long period of ill-health absence. It was agreed that he was entitled to be paid in lieu of holiday accrued but not taken at the end of his employment, but there was a dispute about how it should be calculated.

Mr Connor’s employment contract said payment for accrued holiday at the end of his employment would be ‘…based on 1/365th of annual salary for each day's leave. Any payment will be subject to the usual statutory reductions.’ Calculating the payment according to this formula meant Mr Connor received less than he would have been paid had he taken the holiday. He brought a claim for unlawful deduction from wages.

The EAT decided that any formula under an agreement must be in keeping with the rights provided under the WTR. This means the payment in lieu of untaken annual leave must be no less than the statutory amount owing in respect of both the four weeks’ leave required by EU law and the additional 1.6 weeks’ leave provided for by UK law.

Practical point

Employers should review their employment and worker contracts as this case makes clear that any provision which says that only a nominal payment (for example in the case of a bad leaver), or any amount that is less than the Working Time Regulations provide for, will be paid for accrued but untaken leave at the end of employment will not be valid.

It would, however, still be possible to limit any payment for accrued but untaken contractual holiday over and above the statutory holiday entitlement to a nominal amount in the contract.

Connor v Chief Constable of the South Yorkshire Police