Right to request predictable terms
The Workers (Predictable Terms and Conditions) Bill received Royal Assent on 18 September 2023.
The new Act is one of seven Private Members' Bills that have received government support during the current Parliamentary session. It is intended to address the issue of 'one-sided flexibility' experienced particularly by those working in the gig economy, introducing a new statutory right for workers to request a more predictable working pattern. It will work in a similar way to the existing right to request flexible working.
Workers and agency workers will have the right to request a predictable working pattern in the following circumstances.
- The worker has a lack of predictability to their work pattern (this is an automatic presumption for fixed-term contracts of 12 months or less).
- The change requested relates to their work pattern.
- They are seeking a more predictable work pattern through making the request.
A maximum of two applications may be made in a 12-month period, and the employer may reject the request on prescribed statutory grounds. Workers must have a minimum of 26 weeks' service to make a request, although will not have to have worked continuously during that period. Agency workers will be able to apply to either the temporary work agency or the end hirer to request a more predictable working pattern.
Employers will be required to deal with a request in a reasonable manner and notify the worker of their decision within one month. The grounds for refusal will include the burden of additional costs, detrimental impact on the recruitment of staff or other aspects of the employer's business, or there being insufficient work available.
As it is only a 'right to request' a predictable work pattern, rather than a right to be given one, it is unlikely that the Act will present significant challenges for most employers – provided they follow the procedure for considering a request within the specified timescale of a month. Regulations will be published in due course, setting out further details of the procedure that employers should follow.
According to the Government's press release, the new right introduced by the Act and the secondary legislation required to implement it will come into effect in approximately 12 months' time. Acas will be publishing a draft statutory Code of Practice for consultation this autumn.
ICO guidance on health data
The Information Commissioner's Office (ICO) has published new guidance for employers on processing workers' health data in accordance with their obligations under the UK GDPR and the Data Protection Act 2018. This follows draft guidance published for consultation in October 2022.
Health data is 'special category personal data', granted enhanced protection under the UK GDPR. The new guidance provides an overview for employers on how to comply with the stricter statutory requirements for processing special category data and providing employees with information about how their data is processed. It also covers how to conduct a data protection impact assessment (DPIA) before processing any health data, as well as data minimisation and security.
The guidance explains how data protection law applies to specific workplace scenarios, including managing sickness absence records and occupational health schemes, conducting drug and alcohol testing and how to approach the issue of sharing employee health data. It sets out the legal requirements that employers must comply with, as well as recommendations for good practice. The guidance also includes a set of checklists covering different scenarios involving the collection and processing of workers' health information.
This new publication provides practical and accessible guidance on a tricky area of data protection and will assist employers in achieving compliance with their legal obligations when dealing with their employees' health information. It reflects the aim of the ICO's strategic plan (ICO25) to empower organisations to use personal data responsibly and confidently, as well as building public trust in the way their data is handled.
Minimum service levels – draft Code of Practice
The Strikes (Minimum Service Levels) Act 2023 was granted Royal Assent on 20 July 2023, allowing the Government to set minimum levels of service during periods of strike action affecting key public services (see our previous article for an overview of the Act).
The Department for Business and Trade has recently published a draft Code of Practice for consultation, which sets out the 'reasonable steps' that trade unions will be required to take in order to encourage compliance with work notices issued under the Act.
A work notice may be issued by the employer, following consultation with the union, identifying the workers that are required to work and the work they are required to do to ensure the minimum service level is met during the strike. If a union fails to take reasonable steps to ensure compliance by any union members identified in the work notice, it will lose its immunity from proceedings in relation to the strike (for example, the employer seeking damages or an injunction to prevent the strike from taking place).
The draft Code sets out five steps for trade unions to follow once they have received a work notice from the employers.
- Identification of members subject to a work notice.
- Encouraging individual members to comply with a work notice – by sending members a 'compliance notice'.
- Communication to the wider membership – by sending an 'information notice' about the work notice.
- Picketing – instructing picket supervisors to ensure that union members identified in the work notice are not encouraged to take strike action by those who are picketing.
- Assurance – the trade union should not undermine any of the reasonable steps that it takes and correct actions by union officials or members which may undermine them.
Consultation on the draft Code closes on 6 October 2023. After the Government publishes its response, the Code will require Parliamentary approval before it takes effect. There is currently no confirmed timescale for this.
The Government has recently launched a new consultation on minimum service levels for urgent, emergency and time-critical hospital-based health services. If implemented, this would enable hospitals to issue work notices to doctors and nurses, requiring them to work during strikes.
This latest consultation follows similar consultations issued earlier this year on minimum service levels for passenger rail services and ambulance services. The Government has not yet published its response to the earlier consultations. Note that if the Labour Party succeeds in winning the next General Election, it is expected to repeal the Strikes (Minimum Service Levels) Act 2023.
New guidance on transgender inclusion
The CIPD has published new guidance on transgender and non-binary workplace diversity, equity and inclusion in the workplace.
The guidance has been published following previous CIPD research that found more than 40% of LGB+ and 55% of trans workers had experienced discrimination, physical or sexual assault in the workplace in the previous 12 months. It was produced with input from a range of stakeholders, including those with transgender and non-binary lived experience in the workplace as well as advocacy organisations and policy experts, including the TUC and Acas.
It covers the complete employee lifecycle, from recruitment to progression, and includes an overview of the legal responsibilities and the protected characteristic of gender reassignment under the Equality Act 2010. It provides information about creating a transitioning at work action plan, dealing with transgender and non-binary workplace conflict and data management issues. It also includes a useful guide to key terminology and guidance on using inclusive language.
Sickness absence statistics
The latest figures published by the CIPD and Simplyhealth, based on research conducted in March and April 2023, show the highest levels of workplace sickness absence for over 10 years.
According to the CIPD Health and Wellbeing at Work survey, UK employees were absent for 7.8 days on average over the past 12 months, an increase from the pre-pandemic rate of 5.8 in 2019.
The top causes of long-term absence were mental ill health, acute medical conditions (e.g. stroke and cancer) and musculoskeletal injuries. Short-term absences were dominated by minor illnesses, musculoskeletal injuries, and mental ill health. Covid-19 is reported by over a third of organisations (37%) as still being a significant cause of short-term absence.
Acas has recently updated its guidance on sickness absence management, including the sections on absence policies, unauthorised absence, sick pay, fit notes, doctor's reports and return-to-work plans. There are new sections on recording and reducing sickness absence and absence trigger points.
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