Employment summer 2022 update:
News in brief

• Hybrid working policies should set out how hybrid working can be requested, how job roles are assessed and how decisions will be made.
• Remote staff should have the same access to opportunities as those in the workplace, such as team building, training and social activities.
• Decisions about whether to approve a staff request for hybrid working should be fair and transparent. Other forms of flexible working may be considered as alternatives.
• Employers should provide the necessary equipment and information to enable employees to work safely at home.
• Employers must comply with the law on working hours. Staff working at home should take adequate rest breaks and look after their mental health.
• A trial period to test hybrid working and establish any necessary adjustments may be useful.

Fit notes

New regulations have been made to expand the category of people who can sign statements of fitness to work (“fit notes”) for the purposes of SSP and social security claims. From 1 July 2022, registered nurses, occupational therapists, pharmacists and physiotherapists are now allowed to sign these statements, in addition to GPs. The Department for Work and Pensions has published guidance, Getting the most out of the fitnote: guidance for healthcare professionals, to provide information for healthcare professionals on completing each section of a fit note.

Fire and rehire – Statutory Code of Practice

Lord Callanan, Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (BEIS), confirmed during a parliamentary debate in the House of Lords that the draft Statutory Code of Practice on dismissal and re-engagement (or “fire and rehire”) will be published for consultation in summer 2022.

The government had previously announced a new Statutory Code of Practice following pressure to address the use of fire and rehire, and in light of events surrounding the mass redundancies made by P&O ferries, which took place without prior notice or consultation.

The Code of Practice will detail how businesses must hold fair, transparent and meaningful consultations on proposed changes to employment terms and will include practical steps that employers should follow. Tribunals and courts will be required to take the code into account when considering relevant cases, including claims for unfair dismissal, and will have the power to apply an uplift of up to 25% of an employee’s compensation where the employer unreasonably fails to follow the Code.

Menopause and discrimination

Recent analysis of court records by Menopause Experts Group has found that 23 cases cited the menopause in 2021, which is a 44% increase from the 16 cases that cited the menopause in 2020.

However, the Minister for Work and Pensions (Lords) and Minister for Women, Baroness Stedman-Scott has recently confirmed that the Government has no plans to introduce the menopause as a protected characteristic under the Equality Act 2010. However, officials in the government Equality Hub, in consultation with the EHRC and Acas, will assess whether existing guidance on the menopause can be improved to increase and improve employer and employee understanding of the law.

Changes to rules on industrial action

Statutory instruments have been laid before parliament, making changes to certain rules relating to industrial action.

Employment businesses are currently prohibited from supplying employers with temporary workers who will perform the duties normally performed by a striking worker who is taking part in official industrial action, or the duties normally performed by any other worker who has been assigned to cover for such a worker. This provision will be repealed, making it easier for employers to fill staffing gaps in these circumstances.

In addition, with effect from 21 July 2022, the caps on damages for unlawful industrial action have been increased as follows (the first time these have been changed since 1982):

• Less than 5,000 members: £40,000 (previously £10,000).
• 5,000 to 24,999 members: £200,000 (previously £50,000)
• 25,000 to 99,999 members: £500,000 (previously £125,000)
• 100,000 members or more: £1,000,000 (previously £250,000)