Employment Law Bulletin – January 2023

Department for Work and Pensions (DWP) rate increases 

The DWP has published its annual increases for various employment related pay rates which will take effect in April 2023.

Statutory maternity, paternity, shared parental and parental bereavement pay will increase from £156.66 to £172.48. Statutory sick pay will go up from £99.35 to £109.40.

National minimum wage levels will also increase in April 2023:

  • Age 23 and over: £10.42 (from £9.50)
  • Age 21 and 22: £10.18 (from £9.18)
  • Age 18-20: £7.49 (from £6.83)
  • Age 16 and 17 : £5.28 (from £4.81)
  • Apprentice rate: £5.28 (from £4.81)

Employers must ensure that they revisit employees’ pay to ensure that they meet the new rates at the right time.

Exclusivity clauses 

Exclusivity clauses are terms which prevent an employee from taking up work elsewhere or require an employee to ask permission before working for another business. These clauses have been unenforceable in zero hours contracts since 2015. From December 2022, they are also banned in contracts for low paid workers.

‘Low paid’ here means workers and employees whose net average weekly wage does not exceed the lower earnings limit, which is currently £123 per week.

If an employer dismisses an employee for breaching an exclusivity clause, the dismissal will be automatically unfair. There is no requirement for 2 years’ continuous service to bring that claim. An employee can also bring a detriment claim if they are treated badly because they breached an exclusivity clause. Employment tribunals can award an amount equivalent to unfair dismissal compensation in such detriment claims.

Employers must now ensure that they do not use exclusivity clause in zero hours or low paid contracts.

Changes to flexible working requests 

On 5 December 2022, the government announced that the right to request flexible working will be extended to all employees, from day one of employment.   In addition, the government has announced that it will simplify the process of applying for flexible working.

The government has proposed:

  • The right to request flexible working will become a day-one right
  • There will no longer be a requirement for employees to set out how the effects of their flexible working request might be dealt with by their employer
  • Employees will be allowed to make up to 2 flexible working requests in any 12-month period
  • Employers will be required to consult with their employees regarding options or alternatives before refusing a flexible working request
  • The time limit for employers to respond to requests will be reduced from 3 months to 2.

The changes will be introduced through legislation when “parliamentary time allows”, we will keep you updated.

And finally… 

Is it harassment to text a colleague in the wee small hours? Not according to Mainali v New Godalming Sushi Limited. Mr Mainali was a sushi chef in business with a colleague, Mr Lohani, to provide sushi at Waitrose. Mr Lohani was the main shareholder in the business. Relationships deteriorated. Mr Lohani sent a rota to staff on a group WhatsApp after midnight.

Mr Mainali was furious, saying it was wrong to bother staff at that time of night. Relations further deteriorated, including a scuffle on Waitrose shop floor. The employee left the business. He brought claims in the employment tribunal for discrimination, saying the late-night message had been a deliberate attempt to disturb him and persuade him to leave his job. The tribunal didn’t agree. The judge accepted that the rota was sent in a group chat, rather than to the employee only. They also accepted Mr Lohani’s evidence that he had no intention to disturb and expected colleagues to read the rota at their leisure.

Even in dramatic cases with obviously unreasonable behaviour by an employee, there is some learning. Employers, and managers in particular, should seriously consider the timing of messages sent to employees, especially communications made to private phones. In this case, the facts did not support the employee’s claims. However, in other cases, late-night messages to private mobiles could be construed as oppressive. Make sure messages are sent to work email accounts if possible. Tell employees they can (and should) switch off work devices outside work hours. Ensure managers know the potential pitfalls associated with overstepping the divide between home and work.