May 2023 Newsletter

Updates in Employment Law in May

Case of the month: Glover v Lacoste UK (‘Lacoste’): Flexible Working Requests

The case of Glover v Lacoste UK (‘Lacoste’) underscores the significance of employers carefully considering flexible working requests to avoid potential discrimination claims. Ms. Glover, an assistant store manager at Lacoste, made a flexible working request to return to work on a three-day week after her maternity leave. Initially rejected, her internal appeal partially upheld the request, offering a four-day week on a flexible basis. Due to childcare issues, Ms. Glover’s solicitor warned of potential resignation and constructive dismissal if the request was not reconsidered. Lacoste eventually agreed to the original request before she returned to work. However, Ms. Glover later claimed indirect sex discrimination, arguing that Lacoste’s previous requirement of fully flexible shift work disadvantaged female employees who primarily bear childcare responsibilities. The Employment Tribunal (ET) dismissed her claim, stating that the requirement had not applied to her since Lacoste reversed their decision. On appeal, the Employment Appeal Tribunal (EAT) concluded that Lacoste did apply the requirement to Ms. Glover. The case was referred back to the ET to determine if she suffered any disadvantage.

The EAT expressed doubts about her not experiencing any detriment, given her perceived need to resign. This case highlights the importance of fair consideration of flexible working requests, as changing a decision later does not negate any disadvantage or detriment faced by the employee, even if they didn’t work under the proposed arrangement.

Right to Request Stable Working Hours for ‘Zero Hours’ Employees

The Workers (Predictable Terms and Conditions) Bill, which gained government support in February this year, seeks to grant ‘zero hours’ employees the ability to request more predictable working patterns.

‘Zero hours’ contracts, also referred to as ‘casual work’ contracts, offer no guarantee of minimum work hours. Instead, individuals are offered shifts as needed by their employer and can accept or decline those shifts when proposed.

While these contracts provide individuals with flexibility to work outside of set hours, they have been criticised for their unbalanced flexibility, as workers often remain on standby, unable to plan their day or rely on a consistent income.

The new bill aims to address these concerns by allowing workers who lack certainty in their work hours or who are on fixed-term contracts of less than 12 months to formally request a change to more predictable schedules from their employers.

Although the bill is expected to be welcomed by those employed under zero hours contracts, it currently stipulates that individuals can make a request only after working for their employer for 26 weeks, and the number of requests is limited to two per year. Furthermore, employers retain the right to refuse requests based on certain grounds, such as meeting staffing or cost requirements of the business.

Getting employment contracts reviewed is crucial by employment law solicitors. Reviewing contracts protect your legal rights and interests and conducting a thorough review, we can identify any problematic clauses, assess potential risks, and ensure that the contract aligns with your objectives and legal requirements. This helps you make informed decisions, negotiate favourable terms, and avoid potential disputes or legal liabilities. Ultimately, having solicitors review contracts adds a layer of professional expertise and safeguards your legal position.

Post-Brexit Immigration Rules Update

New immigration rules came into effect on January 1, 2023, impacting workers from outside the UK who wish to work in the country. These rules apply to both EU and non-EU workers and include changes to the Skilled Worker visa and the Global Talent visa.

Skilled Worker Visa:

• Skill Level Requirement: Minimum skill level reduced from RQF Level 6 to Level 3.
• Salary Threshold: Revised minimum salary threshold for eligibility.
• Resident Labor Market Test: Eliminated, reducing administrative burden for employers.
• Annual Cap: Temporarily suspended, providing flexibility in recruiting international talent.

Global Talent Visa:

• Expanded Eligibility: Broader criteria for exceptional talent in science, research, academia, arts, and digital technology.
• Fast-Track Endorsement: 30-day fast-track process for scientific and research roles.
• Job Offer Requirement: No longer mandatory, allowing exceptional talent to seek employment opportunities.

These changes aim to streamline the process for international workers and create more opportunities for skilled professionals and individuals with exceptional talent.

Gender Pay Gap Reporting: Promoting Transparency and Equality

In an effort to address pay disparities between male and female employees, employers with over 250 employees are now required to publish their gender pay gap data by 4 April 2023. This reporting requirement aims to promote transparency and accountability in pay practices.

Transparency for Progress: By disclosing gender pay gap data, employers are fostering transparency in their organisations. This enables them to identify and acknowledge any existing pay gaps, serving as a starting point for implementing measures to close the gender pay gap.

Accountability for Change: Gender pay gap reporting holds employers accountable for their pay practices. It encourages them to take proactive steps towards pay equality, such as reviewing pay structures, conducting audits, and implementing fair pay policies.

Attracting and Retaining Talent: Companies that prioritise pay equality and demonstrate transparency are more likely to attract and retain diverse talent. Potential employees value organisations that actively work towards fairness and equality in the workplace.

Building an Inclusive Culture: Addressing the gender pay gap contributes to building an inclusive work environment where everyone is valued and rewarded fairly. It promotes a culture that respects and supports gender equality.

Gender pay gap reporting is a significant step towards achieving greater equality in the workplace. By embracing transparency and taking action to close pay gaps, employers can create fairer and more inclusive organisations.

EHRC Recommends Clarifying ‘Sex’ as Biological Sex in Equality Act 2010

The EHRC has recommended that the government defines ‘sex’ in the Equality Act 2010 to specifically mean ‘biological sex’. They argue that the interchangeability of the terms ‘sex’ and ‘gender’ has created confusion and uncertainty in applying the law. Clarifying the definition would provide legal clarity for pregnancy and maternity, freedom of association, positive action, single-sex services, and more. However, it may have implications for equal pay and discrimination. The EHRC calls for broader consideration, consultation, and informed public debate on the issue. Scottish ministers are also seeking a judicial review of the blocked Gender Recognition Reform (Scotland) Bill.