Employment law newsletter - December 2022

Welcome to December's newsletter

In our December newsletter, we look at the increase to the National Minimum Wage due in April 2023, new legislation allowing employees to request flexible working from day one in a job, as well as two proposed bills currently going through parliament - the Carer's Leave Bill and the Protection from Redundancy (Pregnancy and Family Leave) Bill. Finally, a quick introduction to a new law which came into force on 5th December 2022, The Exclusivity Terms for Zero Hours Workers (Unenforceability and Redress) Regulations 2022.  

Analysis is provided by our barristers and pupil as follows:

Alex Leonhardt analyses the case of Nexus v RMT & Unite the Union [2022] EWCA Civ 1408, in which the Court of Appeal considered the application of the contractual doctrine of mistake - both common mistake and unilateral mistake - in the context of a collective bargaining agreement, and its potential consideration by Employment Tribunals.

Emma Greening summarises the case of Mr J Hilaire v Luton Borough Council [2022] EAT 166, in which the EAT concluded that an appeal could not succeed based on the fact that the ET were best placed to conclude it was not the effects of disability which prevented the claimant's compliance with a PCP, rather it was a choice he made.

With the festive season almost here, Sarah Clarke reviews how employers can mitigate against possible vicarious liability for the acts of their employees during out of work events (while still helping everyone to have a good time!).

Wishing you a very happy Christmas.

Increase in minimum wage supports low-paid workers during the cost of living crisis

Minimum wage rates from April 2023 have been announced by the Government. Following recommendations from the Low Pay Commission, the National Living Wage (NLW) will rise to £10.42 from 1 April 2023, an increase of 9.7%.

This ensures the NLW continues on track to reach the Government's target of two-thirds of median earnings by 2024.

Flexible working requests can be made from day one in a job  

Flexible working takes many different forms, including job-shares, flexitime, working from home, hybrid working and more, and has become far more 'the norm' since the Covid pandemic.

However, the government are introducing new legislation giving employees the right to request flexible working from the moment they start in a new job.

Carer's Leave Bill under consideration in Parliament

There are millions of people in the UK providing unpaid care to family or friends, and often they are struggling to this alongside working. The proposed Carer's Leave Bill will entitle those providing unpaid care to unpaid leave.

The Bill proposes to allow one week's unpaid leave per year for any employees who are providing or arranging care.

Protection from Redundancy (Pregnancy and Family Leave) Bill passes second reading in Parliament 

Currently those on maternity leave or adoption and shared parental leave have additional protection against being made redundant. The proposed Bill will give the Secretary of State the power to extend this redundancy protection for up to 18 months following their return to work, as well as whilst on leave.

Ban on exclusivity clauses for low paid workers came into force on 5 December 22

Exclusivity clauses, which restrict staff from working with multiple employers, have been void and unenforceable in zero-hours contracts since 2015. However, this left a gap in protection for low-paid workers who were guaranteed at least some hours work each week. The Exclusivity Terms for Zero Hours Workers (Unenforceability and Redress) Regulations 2022, which came into force on 5 December 2022, aims to fill the gap in protection.

3PB Barristers seeks to recruit established practitioners to join its busy and successful Employment and Discrimination Law Group.

The group receives instructions from many of the UK’s leading law firms and provides consistently high quality advice and advocacy for both individuals and companies (including many household company names).

The doctrine of mistake in employment contracts and collective agreements

Alex Leonhardt analyses the case of Nexus v RMT & Unite the Union [2022] EWCA Civ 1408, in which the Court of Appeal considered the application of the contractual doctrine of mistake - both common mistake and unilateral mistake - in the context of a collective bargaining agreement, and its potential consideration by Employment Tribunals.

Impact on other employees - a relevant factor in the assessment of reasonableness

Emma Greening summarises the case of Mr J Hilaire v Luton Borough Council [2022] EAT 166, in which the EAT concluded that an appeal could not succeed based on the fact that the ET were best placed to conclude it was not the effects of disability which prevented the claimant's compliance with a PCP, rather it was a choice he made.

Work events involving alcohol: the risks and how to minimise them

With the festive season fast approaching Sarah Clarke reviews how employers can mitigate against possible vicarious liability for the acts of their employees during out of work events (while everybody still having a good time!).

Meet the team

3PB’s employment law group offers expert advisory and advocacy services to private and public sector employers across all areas of employment law including unfair dismissal, discrimination, equal pay, industrial disputes, executive contracts, wrongful dismissals, restrictive covenants, whistleblowing, TUPE, injunctions, pensions disputes and disciplinary proceedings.