Key employment law updates | April 2023

Additional May Bank Holiday

On 8 May there will be an extra Bank Holiday to celebrate the King's Coronation.

Are employees entitled to this day off?

Employers should check their employee's contracts of employment. If the contract says that the employee is entitled to "all Bank and public holidays", the answer is yes, the employee is entitled to the day off. In this scenario, employers cannot oblige employees to work but can seek their agreement to do so in exchange for a day in lieu at another time. Alternatively, if the contract provides for a specific number of Bank and public holidays (i.e. eight bank holidays), the employer is under no obligation to grant the employee a day off. From an employee relations perspective, insisting that an employee works on the King's Coronation risks damaging the working relationship and impacting the wider business culture, so we recommend carefully assessing the business need against that risk when deciding whether to insist that employees work the extra Bank Holiday.

Pay for working Bank Holidays

There is no standard approach for what an employee is paid for working on a Bank Holiday. If their salary is fixed then normally no extra pay is required, but if working on a Bank Holiday is over and above an employee's normal working hours then the employer's overtime rates may apply. Ultimately the rate of pay will likely depend on what their contract says.

Workplace Surveillance

The Institute for Public Policy Research (IPPR) has published a report finding that following the pandemic, digital monitoring and surveillance practices have hugely expanded in the workplace (the Report). Despite this expansion, there are questions around who, and to what extent, people are affected.

Digital monitoring can include:

  • Key logging and mouse tracking
  • Recording and screenshotting
  • Webcam monitoring
  • Reading and analysing instant messages and email usage
  • Recording telephone calls
  • Calendar monitoring

Monitoring social media usage

The Report states that most monitoring is an active choice for employers because it is perceived as advantageous in some way to their business. However, there is evidence which suggests that work surveillance can have a negative effect on workers including decreased job satisfaction, workplace stress and decreased organisational trust. It can also lead to counter-productive work behaviours, potentially violate an individual's fundamental right to privacy and can promote a "being seen to work" rather than a "quality of work" culture.

In order to tackle these problems, the Report makes the following recommendations for employers and the government:

Employers should:

  • Be more transparent in their monitoring decisions.
  • Demonstrate their compliance with GDPR through a publicly available "worker monitoring statement" with employees having accessibility to challenge a monitoring decision and their data that is collected.

The Government should:

  • Establish a single enforcement body whose main aim is to prevent unlawful surveillance practices and enforce bans on digital monitoring practices (such as keystroke monitoring – when software tracks all keyboard activity).
  • Develop an accreditation to help employers make better choices and to drive up standards amongst industry. To achieve accreditation employers should have to show that their digital monitoring practices are fair and proportionate and that the underlying code, of such monitoring, does not lead to biased outcomes on the basis of protected characteristics.

Do any of the above digital monitoring practices apply to your organisation? Is the current digital monitoring fair and proportionate to the legitimate aims of the business?

If you have any further questions or queries, please do get in touch with either our Employment or Data specialists.

For a further exploration of the use of CCTV in the workplace see our recent article.

Low Pay Commission publishes report and consultation on national minimum wage and national living wage rates

The Government Low Pay Commission has released a report marking the increase to National Minimum Wage that has come into effect from April 2023. It also considers what can be expected for National Minimum Wage (NMW) and National Living Wage (NLW) rates going forward into 2024.

The NMW was increased in April 2023 for 21- and 22-year-olds to try to close some of the gap between this and the NWL. This has been done with the view that by April 2024, 21 and 22 years will be moved onto the NLW.

The Low Pay Commission confirmed their estimate of the on-course rate of the NLW in April 2023 would be £11.16. This would represent an increase in the real value of the NLW, something which was not achieved with this year's increase given the current inflation rate.

Employer's may want to read the full report so they can start factoring the estimates into their future budgets. The full report can be found on the Government's website.

Law Commissions outline recommendations to reform surrogacy in joint report

The Building Families Through Surrogacy: A New Law report, has been published by the Law Commission of England and Wales jointly with the Scottish Law Commission. It outlines various recommendations to reform surrogacy.

These reforms will improve the legal framework for surrogacy by allowing intended parents to be legal parents from the child's birth and creating a non-profit-making regulatory body.

In addition to the main reforms, they make recommendations to improve employment rights in this area. The first one being that one of the intended parents should be given the right to receive a benefit equivalent to maternity allowance. The other improvements are in relation to the intended parents' ability to take time off work to attend ante-natal appointments and the timing of the beginning of their statutory leave, which should be up to 14 days before the expected date of the birth of the child.

Although, these recommendations have not been implemented as of yet, employers have already started updating their policies to be more inclusive. If you would like assistance in updating your policies to better provide for surrogates or intended parents, please do get in touch.

Employment Tribunal Equality claims

The Employment Tribunal has issued updated guidance on the Vento bands for making awards for injury to feelings in discrimination claims. For claims presented on or after 6 April 2023 the Vento Bands will be:

Lower band £1,100 to £11,200
Middle band£11,200 to £33,700
Upper band£33,700 to £56,200
Exceptional cases£56,200 and above