Employment Edit: 4 April 2024

Flexible working changes take effect

Regulations were passed last week which confirm that, as anticipated, several changes to the right to request flexible working will take effect for requests made on or after 6 April 2024. From that date:

• the employer must respond to the request within two months (down from three months);
• the employer must not reject the request unless it has first consulted with the employee;
• the employee will no longer need to set out the effects of their request on their employer and how those effects might be dealt with; and
• the employee will be able to make two requests in any twelve-month period (currently they can only make one).

The ACAS Code of Practice on requests for flexible working has been updated to incorporate these changes and to reflect the fact that the right to make a flexible working request will be a ‘day one right’ from 6 April, meaning that employees will no longer need to have 26 weeks’ service before being eligible to make a request.

Employers need to amend their flexible working policies to reflect these changes and may also want to consider training or other forms of awareness-raising for line managers. If we can help you prepare for these changes, please do get in touch with your usual Burges Salmon contact.

New immigration rules in force

Significant changes to the UK’s immigration rules take effect from today. In our latest article, we summarise the changes and set out key actions for employers to take in light of these reforms.

To understand more about how the changes might affect your business, please contact Katie Hayes or Hannah Malone.

Improving D&I in the workplace

Last week, an independent ‘Inclusion at Work’ panel appointed by the government issued a report on improving diversity and inclusion in the workplace. The panel’s recommendations are that:

• the government should endorse a new D&I framework, setting out criteria for organisations to apply when designing, implementing and evaluating their D&I initiatives;
• the government should appoint a research partner to develop a digital tool to help leadership in organisations assess the impact and value for money of a range of D&I interventions; and
• the Equality and Human Rights Commission (EHRC) should provide guidance for employers in relation to D&I practice, with particular focus on the implication of recent rulings for HR policies and staff networks.

The panel recommended that the EHRC clarify organisations’ legal duties and responsibilities relating to philosophical and religious belief, and that it commits to regularly updating guidance to ensure that employers understand how to apply the positive action provisions of the Equality Act 2010.

Reasonable adjustments and trial periods

The EAT has found that an employer failed to make a reasonable adjustment when it failed to offer a disabled employee a trial period in an alternative role.

The claimant was employed as a pest controller when he was diagnosed with multiple sclerosis. When the claimant was unable to perform that role due to its physical demands, he interviewed for an administrator role. The employer rejected the claimant’s application due to his performance in written tests and concerns that he had irrelevant skills and experience. It did not consider offering the claimant the role on a trial basis or providing him with re-training, and a short while later he was dismissed from his substantive role due to his ill health.

The tribunal held that it would have been a reasonable adjustment to transfer the claimant to the administrator role for a trial period of 4 weeks. The EAT upheld this decision, noting that a proposed step does not have to be guaranteed to work in order for it to amount to a reasonable adjustment.

Whether a trial period in an alternative role is reasonable will be fact-specific in each case, taking into account the suitability of the role and the likelihood of the employee passing the trial period. On the facts of this case, the tribunal found that the employer’s concerns regarding the written tests could have been tested by offering the claimant a trial period and there was a 50% chance that the claimant would be confirmed in the new role at the end of that period.

(Rentokil Initial UK Ltd v Miller)

AI in recruitment

The Department for Science, Innovation & Technology has issued a new guidance document on ‘Responsible AI in Recruitment’. It provides guidance for employers to help mitigate the ethical risks associated with using AI as part of recruitment and hiring processes and comply with relevant legal requirements, including the government’s AI regulatory principles.

The guidance focusses on ‘assurance mechanisms’ for organisations to use when procuring AI systems from suppliers and when deploying AI in the organisation. These mechanisms include completion of impact assessments, risk assessments and bias audits, creation of an AI governance framework within the organisation and different types of testing of the AI systems. The guidance breaks down these assurance mechanisms by reference to the different stages of procuring and deploying AI, and it helpfully sets out suggested questions for the organisation to ask itself at each stage.

Injury to feelings awards increased

The injury to feelings compensation awards that tribunals can make in discrimination cases are set to increase from 6 April. For claims issued on or after 6 April 2024, the new bands (known as “Vento bands”) are:

• for less serious cases, a lower band of £1,200 to £11,700;
• for cases that do not merit an award in the upper band, a middle band of £11,700 to £35,200; and
• for the most serious cases, an upper band of £35,200 to £58,700.

In the most exceptional cases, an award that exceeds £58,700 could be made.