Irwin Mitchell | IM Educate Briefing | January 2023: News in brief

Government issues back to school advice following surge in respiratory illnesses

The government has issued a press release to remind staff and students that winter illnesses (specifically, flu, COVID-19 and scarlet fever) are still circulating at high levels. It recommends that those who are unwell with a fever should remain at home until they feel better. It hopes that this will help to reduce the spread of infection.

Special severance payments and NDAs

Following the reclassification of FE and sixth form colleges into the public sector, accounting officers received a letter explaining the impact of this change. The section on financial transactions included three paragraphs on special severance agreements which stated: ‘…any proposed payments of whatever value that are linked to a non-disclosure agreement will also require DfE approval'. The letter didn’t define what it meant by the term ‘non-disclosure agreement’.

Most settlement agreements include confidentiality provisions which require both parties to keep the terms they have agreed (including the total amount of compensation) private. Very few make a separate payment for agreeing this type of confidentiality clause.

We wrote to the Education and Skills Funding Agency (ESFA) to ask if these types of confidentiality clauses, where no additional payment is made, require DfE approval. We’ve now received their response which states that the need for approval ‘isn’t intended to suppress routine agreements on business confidentiality…rather its intent is to stop NDAs being used to prevent an individual’s right to make disclosures in the public interest’.

The ESFA also said that it intended to issue guidance on severance payments ‘early in the new year’. We’ll keep you posted.

Changes to rules on flexible working requests

The government has published its response to the consultation on making changes to the flexible working regime which we discussed here. It has decided to go ahead with plans to:

Allow employees to request flexible working from the first day of employment (currently they need 26 weeks’ service) and to make up to two requests in any 12 month period (currently they can only make one request)
Reduce the time limit for an employer to respond to a flexible working request from three to two months
Remove the requirement for employees to set out in their application how their request will impact the organisation
Introduce a new duty on employers to discuss alternatives if they can’t accommodate the original request

The existing eight business reasons for rejecting an application won’t be changed.

We don’t yet know when these changes will come into force. But, the government has said that it will support a Private Member’s Bill which will allow employees to make up to two requests a year and for those requests to be determined within two months. The right to request flexible working from the first day of employment will be implemented through secondary legislation when parliamentary time allows.

Extended ban on exclusivity terms in zero-hour contracts

On Monday 5 December 2022, new legislation came into force which extended the protection available to zero-hours workers whose contracts includes terms which ban them from working for other organisations. These are known as exclusivity terms. The new rules apply to anyone engaged on a zero hours’ contract who is guaranteed a net average weekly income that is below or equivalent to the lower earnings threshold (currently £123).

Contracts that include exclusivity terms will be unenforceable. In addition, employees engaged under these types of zero-hours contracts will be able to claim unfair dismissal if they’re dismissed for working for another organisation. They do not need two-years’ service to bring a claim.

That right isn’t available to workers. However, if they are subjected to a detriment (such as being denied work, or their contract is terminated because they’ve breached an exclusivity term) they will be able to complain to the tribunal and obtain compensation.

Compensation can’t be higher than the maximum amount that applies to unfair dismissal claims.

New statutory code of practice on fire and re-hire on the cards

The government has said that it will introduce a statutory code of practice to regulate employers who dismiss and offer to re-engage employees on new, less favourable, terms and conditions of employment. It will complement guidance produced by Acas in 2021. However, it will not back a Private Member’s Bill, introduced in June 2022, which wants to amend the Trade Union and Labour Relations (Consolidation) Act 1992 and establish a statutory framework to regulate dismissal and re-engagement.

Annual tribunal statistics published

The Ministry of Justice has published statistics setting out the number and type of claims issued from April 2021 to March 2022. These indicate that:

There were 42% fewer claims accepted by the tribunal compared with the previous reporting period
The highest financial award for a discrimination claim was £228,117 in a race discrimination claim, closely followed by an award of £225,893 in a disability discrimination claim
The highest financial award for an unfair discrimination claim was £165,000
The highest cost award was a staggering £600,672.

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January 2023: News in brief

Government issues back to school advice following surge in respiratory illnesses

Special severance payments and NDAs

Changes to rules on flexible working requests

Extended ban on exclusivity terms in zero-hour contracts

New statutory code of practice on fire and re-hire on the cards

Annual tribunal statistics published

Read more – January 2023

For general enquiries

About Irwin Mitchell

Contact Us

Get a call back

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January 2023: News in brief

Government issues back to school advice following surge in respiratory illnesses

Special severance payments and NDAs

Changes to rules on flexible working requests

Extended ban on exclusivity terms in zero-hour contracts

New statutory code of practice on fire and re-hire on the cards

Annual tribunal statistics published

Read more – January 2023

For general enquiries

About Irwin Mitchell

Contact Us

Get a call back