Key employment law updates | July 2023

The future of flexible working – new flexible working Bill receives Royal Assent

Earlier this month, the Employment Relations (Flexible Working) Bill (the Bill) achieved Royal Assent.

The Bill will amend the current law relating to flexible working requests in the following ways:

• There will no longer be a requirement for employees to outline the effect of their flexible working request on the employer and how these effects can be dealt with.
• Employees will be able to make two flexible working requests in any 12-month period.
• Employers will no longer be able to reject requests without consulting and exploring options with the relevant employee.
• The period for responding to an employee's flexible working request will reduce from three to two months. However, the employer and employee will be able to agree a longer period if required.

The government has indicated that it will be passing further legislation to make the right to request flexible working a day one right. Acas will also be updating its flexible working Code of Practice and has launched a consultation which closes on 6 September 2023.

Some of the changes which the Bill will implement, particularly the ability for employees to make two flexible working requests each year, have the potential to increase the administrative burden for employers. However, other changes are unlikely to affect how employers deal with requests in practice. For example, it is likely that they are already having meetings with employees to discuss their flexible working requests and to explore alternative options if it is not possible to grant their request.

Increases in flexible working practices have the potential to benefit both employers and employees alike. For example, employers who embrace flexible working may see improved employee engagement because of increased job satisfaction. Further, employers may benefit from a larger recruitment pool as the less stringent working times and hybrid working are attractive to a more diverse pool, attracting more talent.

It is anticipated that the changes will come into force in around a year's time, so employers should start reviewing their policies in preparation. If you would like to discuss what changes need to be made and how to implement them, please do not hesitate to contact us.

New guidance for employers on Subject Access Requests (SARs)

The Information Commissioner's Office (ICO) has published new guidance for employers on dealing and responding to SARs to ensure compliance with UK data protection laws. The guidance includes a detailed Q&A page which explores and advises on some common issues employers face in relation to SARs.

The key takeaways from the guidance and Q&As are outlined below:

Key points for employers

There are no formal requirements for a valid SAR -  the request can be made verbally or in writing, including by social media and it does not need to include the words 'subject access request'.

An employer should:

• Ensure that all staff are aware of what to do if they receive a SAR and have a designated person, team and email address for SARs.
• Respond to SARs without undue delay, and generally within one month of receipt (this deadline can be extended by a further two months if the request is complex).
• Consider asking for ID from the requestor to ensure it is satisfied with the requestor's identity before sending out any personal information.
• Respond to SARs even if the worker has signed a non-disclosure or settlement agreement, or if the worker is subject to a tribunal or grievance process. conduct searches across social media for any personal information within scope if the employer's organisation uses social media platforms for business purposes.

Where an employer fails to comply with a SAR, the ICO can issue a warning, reprimand, fines, or an enforcement or penalty notice. There is also a risk of reputational damage.

Responding to SARs

Responding to SAR can be complex as requests may be broad, however clarification can be sought where the employer processes a large amount of personal data about the individual making the request, or where it is genuinely needed for the employer to be able to respond.

Further, as the ICO guidance points out, personal data can often relate to more than one person, for example where an email mentions an individual, it will also contain the sender's and receiver's personal data.

Consequently the employer will need to consider both the requestor's right of access and the rights of those whose personal data is also contained in the documents that have been requested.

Importantly, employers should not be sharing the personal data of any other individual unless they have the consent of that individual to do so, or it is reasonable to do so in order to comply with the DSAR.

The guidance clarifies that the ICO cannot provide advice as to what employers should include in a SAR response. Therefore, if employers are unsure about any part of their SAR response, legal advice may be required.

If you have received a SAR and would like further guidance, please do get in touch with a member of the Employment team.

The Employment (Allocation of Tips) Act 2023: what does this mean for employers?

The Employment (Allocation of Tips) Act 2023 (the Act), which is expected to come into force in around May 2024, will ensure that tips, gratuities and service charges paid by customers are allocated fairly to workers. By its very nature, the Act will predominantly impact the hospitality industry.

Some of the key changes are as follows:

• Employers must allocate tips fairly and pay them to workers within one month.
• Employers will generally be required to have a written policy outlining how tips will be allocated.
• Employers will be required to keep a record of tips received and their allocation for three years and workers will be able to request information about their employer's tipping record.
• If employers do not follow the statutory obligations imposed by the Act, workers will be able to make a claim in the Employment Tribunal within 12 months of their employer's breach.
• Employment Tribunals will have new powers in relation to awarding Claimants' compensation and ordering that tips are to be paid.

The government has confirmed that it intends to publish a statutory Code of Practice, with a consultation on the Code expected to commence later this year – something employers should keep on their radar. In the meantime, employers should start reviewing their current practices.

If you would like assistance with putting a tips allocation policy in place, or would like any further guidance, please do get in touch with your usual contact in the Employment team. We can work together to formulate a personalised, workable policy which is tailored to your business needs.