Employment Law E-Bulletin – Issue 85

  • Judicial Review
  • Changes to the Flexible Working Framework
  • New Rates for Statutory Payments from April 2023

Judicial Review of Regulations allowing Agency Workers to fill in for those on strike

This month, everyone is talking about strikes with various organisations across the country being affected by strike action.

In July 2022, the Conduct of Employment Businesses (Amendment) Regulations 2022 (“the Regulations”) came into force, which afforded Employers the ability to engage temporary workers when industrial action takes place. The Regulations have been challenged by a number of trade unions who argue that they undermine workers’ right to strike, labelling them ‘Anti-Worker Regulations.’

In September 2022, several trade unions and the TUC announced they would seek a judicial review of the new regulations on the basis that, the then Secretary of State for Business failed to consult unions under the Employment Agencies Act 1973 and the regulations violate Article 11 of the European Convention on Human Rights which details the right of Freedom of assembly and association.

On 14 December 2022, the High Court granted permission for a judicial review of the Regulations. This means the Court will be reviewing whether the decision to implement the Regulations was done lawfully and fairly. The decision of the Court will therefore determine whether the Regulations can remain in place.

The judicial review is expected to be heard in March and it will be interesting to see where this goes…

Changes to Flexible Working Framework

In November 2019, the Conservative Party published its manifesto and stated  the party would consult on making flexible working the default position, unless employers had good reason not to. The government launched the consultation in September 2021, which proposed making flexible working a day one right.

Following the 1,600+ responses, 83% of which were received from individuals, the government published its response on 5 December 2022, which confirmed that a number of the proposals would be taken forward. The changes that we can expect to see include:

  • The right to request flexible working will be come a day one right (currently only available after 26 weeks)
  • Employees will be allowed to make two requests – rather than one – in a 12-month period.
  • Employers’ time frame to respond to such requests will be reduced from three months to two months
  • There will also be a duty to discuss alternatives to the request if they intend to reject a request e.g., a request to work 7-3 may not be possible to accommodate, but 8-4 can be offered instead.

In light of this, the government have said that they will support the Employment Relations (Flexible Working) Bill, which is already moving swiftly through the House of Commons. It may therefore be the case that the changes to flexible working become law in the first half of 2023.

April 2023 increases to statutory payments

The Department for Work and Pensions (DWP) has published its proposed increases to several statutory benefits, including statutory sick pay, maternity, paternity, shared parental and adoption pay. The following rates will apply from April 2023:

  • The weekly rate of statutory sick pay will be £109.40.
  • The weekly rate of statutory maternity pay, and maternity allowance will be £172.48.
  • The weekly rate of statutory paternity pay will be £172.48.
  • The weekly rate of statutory shared parental pay will be £172.48.
  • The weekly rate of statutory adoption pay will be £172.48.

The new rates represents a 10.1% increases on the current rates. These will come into force on 10 April 2023.

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