Employment update: news in brief | Winter 2024

A quick round-up of recent employment law developments

Tribunal fees

It seems that tribunal fees are back on the agenda! You may recall that tribunal fees were introduced back in 2013 but subsequently quashed by the Supreme Court in R (Unison) v Lord Chancellor [2017] UKSC 51 because of their disproportionate impact on access to justice.

The Ministry of Justice has now launched a consultation on the re-introduction of fees for employment tribunal claims and appeals to the Employment Appeal Tribunal (EAT). The proposed fee of £55, which the MoJ describes as ‘modest’, is considerably less than under the previous regime. It would be paid by a claimant on presentation of a claim to an employment tribunal and by an appellant upon submitting an appeal to the EAT. There is no proposal to charge a hearing fee.

The consultation runs for eight weeks from 29 January to 25 March 2024.

Introducing Fees in the Employment Tribunals and the Employment Appeal Tribunal – GOV.UK (www.gov.uk)

Right to request flexible working

It is expected that the new rules on flexible working requests will come into force on 6 April. These will make several changes to the procedure for making a request and also make the right applicable from day one of employment.

Acas has recently published, for Parliamentary approval, the draft Code of Practice on requests for flexible working and plans to produce non-statutory guidance to accompany the Code. The draft Code addresses how an employee makes a request for flexible working, an employer’s obligation to consult with an employee, how an employer should communicate its decision as well as the question of appeals and permitting an employee to be accompanied at meetings.

Code of Practice on requests for flexible working | Acas

Use of agency workers to replace striking staff

Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 ensures that employers cannot use or supply workers to carry out the work of employees who are taking part in official industrial action. A High Court ruling in July 2023, following a claim brought by thirteen trade unions, found that legislation repealing regulation 7 was unlawful and must be quashed.

Nevertheless, the Government has recently consulted on the removal of regulation 7 across all sectors. The consultation closed on 13 January 2024 and we await the Government’s response.

Hiring agency staff to cover industrial action – GOV.UK (www.gov.uk)

Revised Code of Practice on Picketing

The Department for Business and Trade has published the final version of its revised statutory Code of Practice on Picketing to reflect changes made by the Strikes (Minimum Service Levels) Act 2023, which enables employers in certain sectors to issue work notices requiring specified workers to refrain from strike action. The relevant trade union will lose immunity from liability in tort if it fails to take reasonable steps to ensure compliance by all members of the union who are identified in the notice.

This revised Code is due to come into effect on 11 March 2024.

Code of Practice: picketing – GOV.UK (www.gov.uk)

Government challenged over anti-strike laws

The Public and Commercial Services (PCS) union is to seek a judicial review, on behalf of its members in the Border Force, against the government over the Strikes (Minimum Service Levels) Act 2023 and supporting minimum service level (MSL) regulations. In a letter before action, PCS has stated that it will challenge the regulations on the basis that they contravene the right to strike under Article 11 of the European Convention on Human Rights. The TUC has also indicated that further legal challenges may be brought.