Employment and immigration | UK Regulatory Outlook October 2023

Fit notes: updated government guidance issued

Updated guidance on fit notes aimed at employers and line managers has been published by the government. It reminds employers that fit notes may now be issued by doctors, nurses, occupational therapists, pharmacists and physiotherapists. It now includes a "Checklist for Employers" which highlights key points to support discussions between an employer and an employee issued with a fit note. Read more here.

Employers should also refer to Acas' recently issued updated guidance on sickness absence. The Information Commissioner's Office (ICO) has also published guidance for employers on processing information about a worker's health which provides practical guidance and checklists on handling sickness and injury records, occupational health schemes, medical examinations and drugs and alcohol testing, genetic testing, health monitoring, and sharing workers' health information. The guidance will be taken into account by the ICO where a complaint is made that there has been a failure to comply with data protection law. 

Consultation on draft Code of Practice on predictable working pattern requests

Following the Workers (Predictable Terms and Conditions) Act 2023 receiving Royal Assent in September 2023, Acas is consulting on a draft Code of Practice on handling statutory requests for a predictable working pattern. The new right is expected to come into force in September 2024.

The new statutory right essentially provides a worker with a right to request a more predictable working pattern where there is a lack of predictability in relation to the work that the worker does for the employer regarding any part of their working pattern. This covers matters such as the number of hours worked, the days and times worked and the period for which the worker is contracted to work. Read more.

Acas's draft Code of Practice aims to ensure that requests for a more predictable working pattern are handled in a reasonable manner and that a worker's request is fully understood and considered. It sets out good practice on:

• holding a meeting to discuss a request before making a decision;
• who should be allowed to accompany a worker at meetings to discuss a request;
• accepting a request where possible;
• only rejecting a request for certain legally allowed reasons and being clear about the reasons for rejecting it; and
• offering an appeal where a request has been rejected.

The draft code also sets out the different procedures that apply depending on whether a request is made by an employee or worker to their employer or an agency worker.   

The code will not be legally binding but will be taken into account by courts and tribunals when considering relevant cases. Acas has also indicated that it will be issuing non-statutory guidance to support the new right.

The consultation closes on 17 January 2024.

SRA 'thematic review' of use of non-disclosure provisions in the workplace

In 2018, the Solicitors Regulation Authority (SRA) issued a warning notice (updated in 2020) addressing the conduct expected of solicitors when advising on non-disclosure agreements (NDAs). It has now carried out a review to understand how NDAs are used in an employment context and measures taken to comply with the SRA warning notice ensuring such provisions "do not stray into inappropriate areas". The term NDA potentially covers a wide-range of provisions which directly or indirectly seek to keep certain information confidential or limit disclosures, including confidentiality clauses, non-derogatory clauses, warranties, indemnities and clawbacks.  Read more.

The review provides a timely reminder for those advising on NDAs (including external legal advisers and in-house counsel) to ensure that the warning is carefully considered at all times and NDAs are not simply viewed "as low risk and fairly straightforward activity"; it reflects the SRA's concerns that there can be a "focus far more on [the] nature and extent of any possible financial settlement rather than the specific clauses within any agreement" and that solicitors must consider any risks to the proper administration of justice and public trust in the provision of legal services; for example, whether any unenforceable or improper term risks taking unfair advantage of a client or other party.  To this end the SRA is calling for more awareness including training, policies and controls around NDAs to maintain compliance with the warning.

Recognising that templates are commonplace and can support compliance, practical steps suggested by the SRA include:

• reviewing provisions regularly and comparing them to the warning notice to identify any issues and record any updates;
• checking whether a clause could amount to a breach because it gives "the impression" that certain disclosures cannot be made;
• ensuring terms are clear and relevant to the issues and claims likely to arise;
• signposting examples of good practice or guidance in draft agreements to promote high ethical standards;
• tailoring every agreement to the circumstances; and
• ensuring awareness of the warning notice and best practice from the EHRC or Acas Code of Practice.

Employers should anticipate renewed scrutiny of settlement agreement and other NDA provisions. We may also see claimant's legal advisers potentially requesting a greater discretionary contribution to legal fees depending on the circumstances of the dispute - the SRA notes that solicitors acting for employees "need to be explicit with clients about the extent of the advice they can provide where the budget is limited, and be satisfied that they are able to carry out their role to a competent standard in the time provided". The SRA also calls for greater reporting to it of unacceptable NDAs or behaviours where clauses are considered to fall foul of the applicable requirements.

The SRA now plans to review the current warning and reinforce those areas where gaps in knowledge have been identified, including through webinars and publications aimed at the legal profession, alongside a co-ordinated programme of public education using the Legal Choices website and other media to ensure employee and employer clients are better informed about their rights, the enforceability of key clauses and the obligations of the legal profession advising them.      

Menopause: government publishes policy paper, Employment Champion's plans and employer guidance

The government has published a policy paper providing guidance "to help recruit, support and retain women experiencing menopause and stop women considering giving up their employment" recognising that "with close to four million women aged 45-55 employed in the UK and women over 50 representing the fastest growing segment of the workforce, there are few workplaces where menopause is not being experienced by staff. A lack of awareness and treatment are negatively affecting UK productivity".

Helen Tomlinson, the Menopause Employment Champion, introduced a four-point plan which will focus initially on the following sectors: hospitality, retail, care, manufacturing and professional and technical sectors. It includes:

• sharing of employer best practice (within sectors) on a portal that is accessible to all employers whether large or small free of charge;
• a national sector-specific allyship programme which ensures no one is isolated and everyone has someone available to talk to;
• menopause-friendly employers who will support, share and advocate across their sector – retaining and attracting talent to the sector; and
• a communications plan to improve the working lives of women in their sector, achieved by amplification through strategic partnerships.

Further sectors, for example construction and education, will be brought into the programme over the coming months.

The government's Help to Grow website will also be used to build a library of menopause resources and guidance for employers and employees. The government has also highlighted the BSI's recently published standard on menstruation, menstrual health and menopause in the workplace, which sets out practical recommendations for workplace adjustments, as well as strategies to sit alongside existing wellbeing initiatives, and the Menopause Workplace Pledge. To date more than 2,500 employers have signed the pledge.

The Labour Party has indicated that, should it form the government at the next general election, it will introduce a requirement for large organisations to publish a menopause action plan and issue menopause guidance for small businesses. Read more.

Removal of bonus cap confirmed by PRA and FCA

Prudential Regulation Authority (PRA) and Financial Conduct Authority (FCA) have jointly published a policy statement, following an earlier consultation, stating that the current bonus cap – which provides for the ratio between fixed and variable components of total remuneration for in scope banks, building societies and investment firms – will be removed from 31 October 2023.

The changes apply to a firm's performance year that is ongoing which will enable firms "to restructure pay faster" and "give firms further flexibility over their cost base to deal with downturns". The flexibility to restructure pay faster will also allow for a greater proportion of total pay "to be subject to incentive setting tools within the remuneration framework sooner, which in turn could contribute to a better alignment of incentive and financial rewards with principles of effective risk management, good conduct, and the long-term interests of the firms" and enable firms "to compete for and attract new talent sooner". The cap has been seen as a factor "limiting mobility". Firms will however need to remain mindful of employment laws and employee relation issues when seeking to make any changes to the current remuneration structure and the policy statement expressly notes that "although firms may benefit from the flexibility resulting from the change in implementation approach, they may, if they wish, still choose to wait until a later date (for example, the start of their next performance year) before making any changes".