Twenty years on from the introduction of the flexible working regime, Acas is looking again at its statutory Code of Practice, last tweaked in 2014 and of course already largely overtaken since then by the seismic shift in working practices caused by ever-more capable IT, the pandemic lockdowns and industrial discord on the railways. This is the version of the Code (with some new guidance to match also promised) which will go with the revisions to the statutory flexible working scheme to be made by the Employment Relations (Flexible Working) Act, and secondary legislation probably next year. Those changes are likely to include (i) making the ability to request flexible working a Day One right (so abandoning the current six-month minimum service requirement); and (ii) removing the obligation on the employee to consider the potential impact on the employer of his/her desired work pattern. Neither of these is a remotely good idea for reasons you can find here. The Act will also make it a pre-requisite of rejecting a flexible working application that there is some unspecified level of prior consultation with the employee. This adds little of practical significance to the existing law, since it is already very unlikely that a rejection would be deemed properly considered without that.
Did you see the latest viral TikTok, in which the TikToker complains that she was disrespected by a potential employer during an interview when she inquired about available accommodations for “time blindness” – a term apparently intended to describe her difficulty being on time? As of the writing of this blog, nearly 27,000 comments have been posted in response to this TikTok, the vast majority being rather critical of the poster, many suggesting the “accommodation” needed is an alarm clock or a greater sense of personal responsibility.
On the surface, it would be easy to dismiss this TikTok and move on. But is there an actual employment law issue here? Could “chaotic_philosopher” actually be entitled to a workplace accommodation for her apparent inability to be punctual?
In connection with the funding of pay increases being offered in the public sector, the government has announced its plans to increase:
- the Immigration Health Surcharge from £624 to £1,035 per year (main rate) and from £470 to £776 per year (under-18s and students). This charge is payable in one amount at the time of application for each year of the visa being applied for i.e. £1,035 x 3 = £3,105 for a 3 year visa
- fees for work and visit visa applications by 15% e.g. the cost of a 3 year Skilled Worker visa application filed outside the UK will increase from £625 to £719
- fees for Certificates of Sponsorship, settlement, citizenship, wider entry clearance, leave to remain, study visas and priority visas by at least 20%.
No date has been set for the introduction of these increases but they are expected to be imminent given current economic pressures.
Yesterday in R (on the application of ASLEF and ors) v Secretary of State for Business and Trade the High Court quashed the government’s controversial legislation which repealed the prohibition placed upon employment agencies from supplying temporary workers to businesses in order to backfill labour shortages caused by employees participating in industrial action.
The proceedings were brought by a group of 13 trade unions who instigated a judicial review challenge to the government’s revocation in 2022 of Reg 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (‘Conduct Regulations’). This longstanding piece of legislation had made it a criminal offence for an employment agency to supply temporary workers to cover the work of those participating in official industrial action. The challenge was brought on two grounds. First, that the government had failed to comply with its obligations to undertake consultation before amending the Conduct Regulations and, second, that this was a breach of the government’s obligations under Article 11 of the European Convention on Human Rights (ECHR) to prevent unlawful interference with the rights of trade unions and their members.
So here we go again, another attempt to legislate against workplace bullying. This is not the first – back in 2001 there was a Dignity at Work bill, a fantastically inept piece of drafting crippled alike by internal processes more complicated than the wiring diagram of a battleship and the inevitable (and as it turned out, insurmountable) problem of defining its core subject.
Now there is a new proposal, the subject of a parliamentary Motion earlier this month. This suggests a legal framework akin to the existing harassment regime under the Equality Act, but dropping the requirement that the offending conduct be related to any protected characteristic. For the reasons below, this amounts in effect to a right to be happy at work, and for that reason alone — there are many others to choose from — the prospect of this becoming law (which is very far from certain, let alone imminent) should hold enormous concern for employers.
New York State (NYS) and New York City (NYC) have been characteristically busy – enacting, amending and clarifying employment legislation. This blog post discusses two significant changes: (1) amendments to the New York State WARN Act (NY WARN) regulations, which impacts New York employers state-wide, and (2) agency guidance clarifying employers’ compliance obligations with respect to NYC Local Law 144, which is NYC’s new AI bias law.
NY WARN Act Regulations Amended
In late March 2023, the New York State Department of Labor (DOL) released proposed amendments to its NY WARN regulations. Earlier that month, a bill which would significantly expand the scope of NY WARN was introduced in the New York Senate. While the bill is currently still with the Labor Committee, amendments to the NY WARN regulations took effect on June 21, 2023, and include the following noteworthy changes:
Ohio Court of Appeals Disagrees, Confirming That Employees Cannot Succeed on Free Speech Violation Claims Against Private Employers (US)
Rita Hall worked for Kosei St. Marys Corporation (“KSM”) as a line supervisor. In June 2020, Ms. Hall posted an offensive image on her public Facebook page comparing a group of monkeys to a group of African Americans. Several KSM employees complained to KSM management about Ms. Hall’s post. KSM subsequently terminated Ms. Hall solely because of her racially offensive Facebook post. Ms. Hall sued KSM, claiming she had been wrongfully terminated for exercising her free speech rights under the US and Ohio state constitutions.
The Department of Business and Trade recently issued its latest list of over 200 employers which have failed to pay at least the minimum wage.
By the government’s reckoning, the underpayments uncovered amount to almost £5m, leaving 63,000 workers out of pocket. The employers range from large High Street names to sole traders, in what the government has declared (in a shameless copy and paste from last year’s press release) as “a clear message that no employer is exempt from paying their workers the statutory minimum wage”.
Less stridently, and potentially somewhat gallingly for the employers named, nestled in the midst of the press release is the acknowledgement that these breaches relate to investigations concluded by HMRC between 2017 and 2019, so there is a fairly significant, not to say inexcusable, time lag between the breaches in the question and being hauled over the coals for them. For businesses where ESG factors are of relevance, this sort of negative publicity may have serious consequences of far more significance than any financial penalties imposed.
So given the enormous range of employers on the list – showing that size or access to administrative resources don’t necessarily mean employers are immune from making mistakes – what are the key learnings for employers to make sure they don’t end up on the list in the future?
On June 29, 2023, the U.S. Supreme Court announced its unanimous opinion in Groff v. DeJoy, No. 22-174, 600 U.S. __ (2023), a long-awaited decision explaining employers’ obligations under Title VII to reasonably accommodate employees’ religious beliefs, observances and practices. Groff, the first Supreme Court decision in nearly 50 years to consider what employers must prove in order to deny an employee’s request for an accommodation based on religion, establishes that employers must show that the hardship associated with granting a religious accommodation would result in substantial increased costs in relation to the conduct of its particular business.
We previously reported on the enactment of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“EFAA”), a law that amended the Federal Arbitration Act (“FAA”) to preclude mandatory arbitration of sexual harassment and sexual assault cases. After the EFAA, employers utilizing mandatory arbitration programs must carve out sexual harassment and sexual assault disputes from the list of claims that employees must arbitrate. Employees have the option of pursuing sexual harassment and sexual assault claims through arbitration if they wish, or they may pursue such claims in federal, state, or tribal courts.
One question that we raised when Congress passed the EFAA was what impact the law would have when an employee asserts sexual assault/sexual harassment claims along with other employment claims, such as pairing a sexual harassment claim with a race discrimination or retaliation claim. Under the EFAA, one claim can be compelled to arbitration, while the other cause of action (sexual harassment) cannot be. One federal district court has finally addressed this question, deciding in twin companion cases filed against a “virtual real estate” company that its employees were relieved from arbitrating any claims against the company if they asserted plausible claims of sexual harassment or sexual assault. Johnson v. Everyrealm, Inc., Case No. 22 Civ. 6669 (PAE), 2023 WL 2216173 (S.D.N.Y. Feb. 24, 2023) (“Johnson”); Yost v. Everyrealm, Inc., Case No. 22 Civ. 6549 (PAE), 2023 WL 2224450 (S.D.N.Y. Feb. 24, 2023) (“Yost”).