Jill Evans, Law Content Analyst, CIPD, looks at employment law developments in January and February 2023 for England, Scotland and Wales.
On 1 February 2023, 85% of schools in England and Wales were either fully or partially closed, with more than 100,000 teachers on strike. In Scotland, teachers started 16 days of industrial action across 32 local authority areas in the middle of January 2023. Term-time school closures cause considerable problems for organisations with working parents, most of whom have already endured months of juggling homeschooling and work during the pandemic.
Employees with at least one year’s service are entitled to up to 18 weeks of unpaid leave for each of their children below the age of 18. The law requires the leave to be taken as whole weeks rather than individual days, up to a limit of four weeks in any one year for each child. Employees must give their employers 21 days’ notice of starting the leave, specifying the length of leave they wish to take.
Organisations can decide to enhance any statutory entitlement – the law only specifies minimums and maximums – and as public sector strikes look set to continue, employers should review their existing policies on parents of school-age children taking leave. For example, they may wish to consider:
- adding strike action in schools to accepted reasons for parents taking time off
- allowing parents coping with additional school closures to take more than the specified four days’ unpaid leave a year
- allowing parents with less than a year’s service to take unpaid leave
- allowing parents to use paid annual leave to cover their time off during strike days
- creating more flexibility over when and where parents work on strike days.
The UK government has adopted a proposal set out in the 2017 Taylor review of modern working practices designed to rectify ‘one-sided flexibility’ that helps employers but hampers workers’ chances of taking on additional work for other businesses or stops them managing their caring responsibilities. The Workers (Predictable Terms and Conditions) Bill, an MP’s Bill with UK government backing, will give all employees and workers, including those working for agencies and on zero-hours contracts, the right to ask for a more predictable work pattern in terms of when they’re required to work and for how long.
There is likely to be a service qualification for the right, probably 26 weeks for most workers and 12 months for those on fixed-term contracts, and a limit of two on the number of requests that can be made in a year. Employers will be restricted to a set of specified reasons for refusing requests.
Employment measures currently progressing through Parliament cover a range of issues from providing neonatal leave and pay, to allocating tips fairly. Most don’t have enforcement dates but unpaid carers’ leave is expected to commence in 2024, new sexual harassment measures are likely to be in force a year after that Bill becomes law and the minimum service levels during strikes Bill will be in force as soon as it is passed – although it’s not clear how long this will take. The ‘sunset date’ (expiry date) for retained EU law is currently the end of 2023 but this is expected to be extended to the end of 2024. There is no indication yet when the right to request flexible working from day one of employment will come in.
Court of Appeal decision
The Court of Appeal has found for the employer in its first decision on a COVID-19 unfair dismissal claim.
The case, Rodgers v Leeds Laser Cutting Ltd, involved section 100 of the Employment Rights Act 1996 which allows employees without the usual two-year service requirement to claim unfair dismissal if they have a ‘reasonable belief in a serious and imminent danger in a workplace’. The claimant’s concerns about the virus because of his children’s vulnerability did not specifically relate to his workplace, which had followed government COVID-19 health and safety guidance, and he did not raise them before telling the company he would not return to work during lockdown. His claim failed for these reasons.
Explore our resources on these subjects:
Parental rights and family-friendly provisions Q&As – allowing parents take time off during strikes
Working with trade unions – timely CIPD advice for organisations and people professionals
Right to request predictable hours
An employer's guide to atypical working – practical guidance on good working practices
Fixed-term workers Q&As – answers to commonly asked questions
Bills in Parliament
Recent and forthcoming legislation - see Bills before Parliament and possible law changes
COVID-19 landmark decision
Case law on dismissal – for more on the Rodgers v Leeds Laser Cutting case
Coronavirus advice for UK employers – find out how to look after people’s health, safety and wellbeing during COVID-19 outbreaks