February 2, 2023

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    Thank you to everyone who joined our webinar on 2 February, 2023. Here is a recording in case you'd like a recap, or weren't able to attend:


    In the webinar we talked about two significant legislation changes that we're expecting this year:

    • Flexible working rights
    • Harassment laws

    2023 is looking already like it is going to be an interesting year for employment law, businesses and the economy.

    Challenging, may be another word that comes to mind!

    Flexible and Hybrid working

    Flexible working – it’s a buzzword that has been on everyone’s radar since the Covid-19 pandemic hit. The concept that has been around in some shape or form since 2003, but will be undergoing an expansion over the course of this year.

    The term flexible working is often used interchangeably with hybrid working – another employment buzzword. While the two concepts both enable employees to deviate from the traditional model of 9 to 5 in the office, they do have many key differences.

    • Flexible working relates to the statutory right available to employees to formally request a temporary or permanent change to their employment relating to working location, days, hours, or pattern of working. For example, an employee may ask to permanently change to work part-time or flexi-time, to job-share, or to work compressed hours.
    • Hybrid working (also known as remote working) is an informal arrangement whereby an employer allows employees to work partly from the office and partly from another location – usually their home, but sometimes co-working spaces or even abroad

    Background - Flexible Working Regulations

    • 2003: Flexible Working Regulations were introduced. Initially the right was only available to employees, who were parents of children under 6 (or 18 if disabled) or carers of adults. The request had to specifically relate to these caring responsibilities.
    • 2014: The current statutory regime was implemented and the right was extended to all employees who have at least 26 continuous weeks of employment.
    • 2021: The Government held a consultation entitled “Making Flexible Working the Default” in order to understand how to amend flexible working rights to better support employers and employees. The results of this consultation were published in December 2022, with the government committing to making a number of changes to flexible working rights, which are set out in the Employment Relations (Flexible Working) Bill currently progressing through parliament.
    • Now: Employees currently have a statutory right to request flexible working after 26 weeks of continuous employment. They can make 1 request every 12 months and must specifically set out how their employer might deal with the effects of this request on the business. The employer must deal with the request in a reasonable manner and respond within 3 months but does not have to approve the request.

    8 business reasons that allow the employer to reject a request

    1. Extra costs
    2. Inability to meet customer demand
    3. Inability to recruit additional staff
    4. Detrimental impact on quality
    5. Negative impact on performance
    6. Lack of work to do during the proposed times
    7. Planned structural changes within the business
    8. Inability to reorganise work amongst existing staff
    Important - Remember, it's a right to request, not a right to have flexible working. If you, as the employer, believe that one of these 8 reasons applies, you can reject the request.

    What's new?

    The main difference is that flexible working is going to become a Day 1 right.

    This means that new joiners will have the ability to submit a flexible working request from their first day of employment. The idea is that this will encourage people to have open conversations with their employers earlier – both during the recruitment process and from the moment they start on the job.

    It's hoped that this could improve workforce diversity - by opening roles to a wider pool of talent and encouraging individuals to return to the workforce who may not be able to work according to the standard 9 to 5 pattern. It’s also hoped that this will remove the perception that flexible working is something that has to be earned, rather than a right available to all employees.

    Another change is that employees will be allowed to make 2 flexible working requests in any 12-month period. And employers will have to respond to any request within 2 months. This is in recognition that an employee’s circumstances can change within the span of 12 months and may necessitate a quicker response from the employer to avoid a negative outcome, such as the employee ultimately leaving the workforce.

    A third change is that employers will be legally required to consult with employees to explore available options before rejecting a request. It’s currently best practice to do so, but in the absence of a firm legal requirement, not all employers do. Flexible working is not one-size fits all and open and honest consultation may enable the specific employee and employer to find a suitable arrangement which has not previously been considered.

    Finally, employees will no longer be required to show how their employer might deal with the effects of their flexible working request. It was considered that this requirement disadvantages new joiners and junior employees who may not have experience in presenting business cases or full knowledge of how their request may impact the business.

    What will stay the same?

    It’s important to point out that amongst all of these changes, there are several things that won’t be changing:

    Current Position New Position No change
    • Statutory right to request flexible working after 26 weeks of continuous employment
    • 1 request per 12-month period
    • Employer must respond within 3 months
    • The employee must set out the effect(s) of their request and how their employer might deal with the effect(s)
    • Statutory right to request flexible working is a Day 1 Right
    • 2 requests in any 12-month period
    • Employer must respond within 2 months
    • The employee no longer needs to show how their employer might deal with the effect(s) of their flexible working request
    • Employers will be required to consult with their employees to explore available options before rejecting a request
    • 8 business reasons for refusing a flexible working request
    • It's a right to request, not a right to have flexible working

    Why is the law changing?

    Uptake of flexible working has increased over the past few years, with employees (and employers) more open to the possibility of work taking place in alternative locations, according to different hours, and in different ways following the Covid-19 pandemic. The changes to the law are in recognition of this and are aimed at making flexible working the default rather than the exception.

    Potential benefits for all...

    The expansion of flexible working rights has the potential to support individuals back into work who may be unable to work traditional schedules – think disabled employees, individuals with caring responsibilities, or older individuals who may have otherwise decided to retire earlier than desired.

    A Day 1 Right encourages conversations to happen from the earliest stages of the employment journey and may lead to increased equality of employment opportunities, and ultimately a more diverse workforce.

    This is in addition to the already well-documented benefits of flexible working: improved work/life balance, better job performance, reduced vacancy costs, increased skill retention, and reduced staff absenteeism and burnout.

    When are these changes expected to be implemented?

    The Bill passed its second reading in the House of Commons last October and is scheduled for the report stage and Third Reading later this month.

    While there is no set deadline for this Bill, it's clearly a priority for them and the Bill is widely anticipated to become law in late 2023/early 2024.

    What can employers do now?

    In a competitive market where recruiting and retaining employees are major challenges, demonstrating your commitment to flexible working is a way to distinguish yourself from the of your competition and position yourself as an employer of choice.

    If your organisation can accommodate it, consider getting ahead of the law and making changes to your flexible working policy now rather than later. Don’t have a flexible working policy? Let us draft one for you.

    • Raise flexible working at the interview stage with applicants
    • Allow employees to submit flexible working requests from Day 1.
    • Consider organisational facilitators and barriers to flexible working.
    • Work to create a supportive culture in which conversations about flexible working happen regularly and openly.
    • Share success stories within the organisation.
    • Provide support, guidance and training to managers involved in approving or rejecting requests.

    Harassment in the workplace

    Harassment at work in all different forms obviously has a significant negative effect on employees but also has a negative impact on workplace culture and productivity. Surveys undertaken have shown it remains widespread and vastly underreported.

    Back in 2019 the government launched a consultation on how best to tackle sexual harassment in the workplace. The response was published in July 2021. Proposed changes were originally going to be made via a new Employment Bill, however, that has been parked and instead a Private Members Bill (which is backed by the Government and covers similar ground) is currently working its way through Parliament. It is called the Worker Protection (amendment of Equality Act 2010) Bill.

    The Worker Protection (amendment of Equality Act 2010) Bill

    As drafted the Bill makes two key amendments:

    1. It introduces a new positive duty for employers to prevent sexual harassment in the workplace
    2. Employers will become liable for harassment of their employees by third parties (for example, clients, cleaners, security, contractors etc)

    It's worth mentioning that the Government had originally proposed increasing the time limit to bring a claim of harassment (as well as other claims under the Equality Act) from 3 months to 6 months – however, this does not appear in the Bill.

    The new positive duty to prevent sexual harassment

    As the law currently stands there is no positive obligation to prevent sexual harassment occurring, and the question of whether employers have taken adequate steps to prevent it only arises as a defence if an incident of sexual harassment has already occurred.

    The proposed amends therefore put a specific legal obligation on employers to take all reasonable steps to prevent sexual harassment of their employees in the course of their employment.

    The amends are designed to shift the focus towards prevention rather than reaction. This recognises that it's not ok to address matters after the event and instead it requires an employer to play an active role in preventing sexual harassment occurring in the first place. This is a positive step towards instigating wider cultural change and improving work place practices.

    To "take all reasonable steps"- What does that mean?

    The bill does not set out what “all reasonable steps are” – on the basis that parliament does not want to impose too narrow or strict interpretation. As such there will be flexibility in approach and what will be considered reasonable will vary between employers, taking into account things such as size, sector, expense, time & disruption, effectiveness. If a step would be effective, then this may outweigh any other negative factor. However simply stating you are small business itself won't cut it as a defence.

    The Equality and Human Rights Commission intends to produce a new statutory code of practice to provide guidance to support employers with this new duty.

    How will it be enforced?

    Breach of the duty cannot be brought as a standalone claim (presumably as the scope would be very wide if that were the case).As such the duty will only be enforceable where an individual has brought a sexual harassment claim to the tribunal.

    So, in practice, if a tribunal finds in favour of the employee, it will then automatically consider whether the employer was in breach of the duty to take all reasonable steps to prevent harassment occurring.

    If it finds the employer was in breach, the Tribunal will now be able to award an uplift in compensation of up to 25%.

    It's also worth noting that the Equality and Human Rights Commission will also be able to investigate and take enforcement action for a breach or suspected breach of the duty, irrespective of any tribunal claim.

    Employer liability for third party harassment of employees for all types of harassment

    Interestingly, this is a restoration of an old law which was repealed. Since 2013, employers have not been explicitly liable if an employee is harassed by a third party – such as a customer. However, this obviously leaves a gap and little recourse for employees who have suffered harassment by third parties while at work.

    Therefore this new provision seeks to fill that gap and legally requires employers to consider harassment risks by third parties. So as drafted, an employee who is harassed by a third party (e.g. client/ customer) in the course of their employment will be able to claim against their employer.

    Notably, this legislation is not confined solely to sexual harassment. As drafted, it will apply to harassment on the grounds of all relevant protected characteristics by a third party (age, sex, disability, race etc).

    It also applies to harassment in the course of employment so as well as the obvious situations at work itself, it will likely cover work events and training courses etc.

    It is also worth noting that this re introduction does not have any other conditions. Under the old law there was a “3 strikes and you’re out" approach. By contrast, an employer may now potentially be liable for third party harassment after the very first incident.

    However, there will be a defence. An employer can avoid liability if they can show they took all reasonable steps to prevent the third party harassment. Again – reasonable steps will likely be dependant on various factors such a company size, business sector etc.

    In conclusion

    On the one hand these changes are positive and will hopefully ultimately improve workplace practices and reflect a society where all harassment is unacceptable.

    However, on the other hand, these changes are potentially quite onerous for employers.

    That said, research shows that employers who value diversity and inclusion have greater employee retention and financial performance, as well as creating a supportive company culture.

    How can Law 365 help?

    We recommend making certain changes and putting measure in place now that will help to demonstrate your commitment to employees as well as reducing risk of claims under current law for discrimination or harassment.

    10 steps you can take now to comply with the Equality and Human Rights Commission guidance:

    1. Ensure you have an inclusive working environment and implement a robust process for addressing unacceptable behaviour.
    2. In an ideal world, you'll already have policies such as Anti-harassment and bullying and Equality policies, so review them to make sure they're fit for purpose. If you don’t have them in place, now is a perfect time to implement them.
    3. Consider the interaction with other policies. For example: Do your IT policies include appropriate warnings against online harassment?
    4. Evaluate the effectiveness of your polices. You might want to do anonymised surveys or feedback (At Law 365, we use a tool called Officevibe – there are others out there)
    5. Many victims of sexual harassment would rather leave their employer than report the harassment to them. So you might want to consider asking an open question about experiences of harassment in exit interviews.
    6. Raise awareness – How are the policies communicated to employees? Where are they published? Take opportunities to remind people of their existence. This can be as simple as posting the changes on office notice boards or in Teams channels.
    7. Evaluate your current training or implement training if this is something you don’t have. Tailor it to the audience (e.g. managers may need additional guidance on what to do upon receiving a report of harassment etc). If 3rd party harassment is more likely – consider how to approach this. For example train employees on how to handle unwelcome interactions and who they can report this to.
    8. Carry out risk assessments to identify particular areas of risk e.g. lone working, customer facing duties, presence of alcohol, address power imbalances. For example, ensuring that decision making is representative of different groups.
    9. Share your policies/standards with other organisations that supply workers and/or services to you. Make sure everyone aware of the standards you expect them to uphold.
    10. Ask Law 365 to help! Find out more about HAPPY 365 here.

    Don't be complacent! There is no room for complacency. Don’t assume that if you have no complaints everything is ok. – people may simply not be reporting it. So it’s a good time now to get your house in order, before the changes come in.

    Special webinar offer*

    Some businesses may not even have a Flexible working policy or Anti-harassment and bullying policy in place, so this is the perfect opportunity to rectify this:

    Are you new to Law 365? For our wonderful subscription clients

    We’re offering a free 15-minute call with one of our lawyers to review the employment policies you have. Please fill out this form prior to the meeting so that we can get the most from the time.

    We’ll review and update both your Flexible Working policy and Anti-bullying and Harassment policy for just one credit (that’s a 50% discount*).

    Contact us

    * Note: Please book your appointment before March 30, 2023 to receive this discount.

    Useful links

    Special webinar offer*

    Some businesses may not even have a Flexible working policy or Anti-harassment and bullying policy in place, so this is the perfect opportunity to rectify this:

    Are you new to Law 365?

    We’re offering a free 15-minute call with one of our lawyers to review the employment policies you have. Please fill out this form prior to the meeting so that we can get the most from the time.

    For our wonderful subscription clients

    We’ll review and update both your Flexible Working policy and Anti-bullying and Harassment policy for just one credit (that’s a 50% discount*).

    * Note: Please book your appointment before March 30, 2023 to receive this discount.

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