Employment Edit: 25 January 2024

Acas Code on flexible working requests

Acas has published an updated draft Code of Practice on requests for flexible working. The Code, which reflects the change to make the right a ‘day one’ right, is expected to come into force on 6 April 2024 alongside several procedural changes. Those procedural changes include a reduction in the amount of time that an employer has to respond to a request (from three months to two months) and an increase in the number of requests an employee can make in any twelve-month period (from one request to two requests).

The draft Code provides guidance for employers to help them respond to requests. It is likely to be one of the main reference points for employers to determine what level of consultation to carry out under the new requirement for consultation with an employee before rejecting any flexible working request.

Paternity leave changes

Draft legislation was published earlier this month which sets out proposed reforms designed to provide more choice and flexibility around how and when statutory paternity leave is taken. If these changes are approved, eligible fathers and partners will be able to:

• take the leave at any time in the first year after birth or placement for adoption, rather than in the first eight weeks (as is currently the case);
• take the leave in two separate one-week blocks, rather than having to decide between taking one week only or taking two weeks of leave in one block (as is currently the case); and
• provide 28 days’ notice of the dates of their leave, with a few limited exceptions.

These changes are set to apply to children whose expected week of birth begins after 6 April 2024 or expected placement for adoption is on or after 6 April 2024.

The legislation now awaits parliamentary approval.

Immigration health surcharge increase

The implementation date for the planned increase to the Immigration Health Surcharge has now been confirmed. The surcharge is payable by visa applicants and their dependants to fund their access to the NHS, but in practice is commonly reimbursed by employers. The increased rates (from £624 to £1,035 per year per adult and from £470 to £776 per year per chid) will apply to applications made on or after 6 February 2024.

Settlement of future claims

The Scottish Court of Session has held that a future discrimination complaint was waived under the terms of a settlement agreement.

The claimant entered into an agreement after opting for voluntary redundancy. The settlement terms included:

• an enhanced redundancy payment, notice pay and an additional payment to be calculated under the terms of a collective agreement;
• an agreement not to pursue claims for direct or indirect discrimination on the grounds of age; and
• a statement that the waivers were irrespective of whether or not he was aware of such claims at the date of the agreement.

The respondent later concluded that the claimant, who was 61, was ineligible for the additional payment because the collective agreement did not apply to those over the age of 60. The claimant brought a claim for post-employment age discrimination relating to the decision not to pay the additional payment.

The Court of Session concluded that the claimant was barred from pursuing the age discrimination complaint as a result of the settlement agreement. It held that waiver of future claims was possible in these circumstances but made it clear that the scope of settlement will hinge on the exact wording in the agreement. The case underlines the importance of careful drafting of settlement terms to ensure that the parties are clear on the type of claims that are being waived.

(Bathgate v Technip Singapore PTE Ltd)

Industrial action update

Yesterday, the Trades Union Congress (TUC) and the Recruitment & Employment Confederation (REC) issued a joint statement urging the government not to go ahead with its proposal to remove the rule that prevents employment agencies from supplying agency workers to cover the duties normally performed by striking workers. The TUC and REC stated their belief that the use of agency staff could prolong strikes and inflame conflicts between employers and permanent staff. They also noted concerns raised by the Equality and Human Rights Commission regarding the potential impact on the right to freedom of assembly and association under Article 11 of the European Convention on Human Rights. Consultation into the proposal closed on 16 January and the government’s response is awaited.

In other industrial action news, the government has published a draft revised Code of Practice on Picketing. The Code has been amended in light of the new requirement, where minimum service levels have been set, for trade unions to take reasonable steps to ensure that their members identified in a work notice do not take part in the strike. The revised Code signposts to the separate Code of Practice on reasonable steps to be taken by a trade union, which came into effect on 8 December 2023.