HR briefing - October 2023

19 October 2023

Welcome to this month's briefing for HR teams and in-house employment counsel – bringing you employment law highlights in an easy-to-read package with our monthly podcast.

Podcast: Holiday pay with Jason Galbraith-Marten KC

We’re delighted to welcome another guest speaker on this month’s podcast. Fresh from his victory in the Supreme Court in PSNI v Agnew, Jason Galbraith-Marten KC joins Matthew Ramsey to discuss the complicated world of holiday pay. Listen to the podcast.

Right to request predictable working patterns

We’ve reported in recent months a number of Government initiatives where framework legislation has been passed by Parliament, but the secondary legislation that’s needed to give effect to the relevant new right or protection is still awaited.  This month sees another in the same pattern. The Workers (Predictable Terms and Conditions) Act 2023 gives workers with unpredictable working patterns a new right to request a more predictable arrangement. Unpredictability could be by reference to the number of hours worked, the days or times worked, or the period of a contract. That last aspect is particularly important, as workers with fixed-term contracts of 12 months or less are deemed to be "unpredictable" for the purposes of the legislation. Just as with the right to request flexible working, employers receiving predictable pattern requests will be obliged to deal with them in a reasonable and considered manner, rejecting them only where one of a specified set of reasons applies. We will update you when an implementation date for this new regime is announced.

Monitoring at work

The Information Commissioner’s Office, which regulates data protection in the UK, used to publish lengthy guidance called the Employment Practices Code. That was retired when the GDPR was introduced and the Data Protection Act 1998 was replaced by the Data Protection Act 2018, and is slowly being replaced by updated guidance on discrete aspects of data privacy. The latest instalment deals with monitoring at work, looking at what lawful basis might be applicable, whether data protection impact assessments are necessary, when covert monitoring might be warranted, what kinds of email and phone monitoring can be justified, and numerous other difficult practical questions. The guidance is essential reading for any organisation looking to introduce workplace monitoring in any form.


Organisations across all sectors should be familiar with the auto-enrolment system introduced in 2012, under which workers are automatically enrolled in pension schemes unless they deliberately opt out. The system fundamentally changed the default position of having to opt into pensions arrangements, and has seen a huge rise in the number of people with some sort of pension provision to supplement their state entitlements. The system can be complex to operate, however. The Pensions (Extension of Automatic Enrolment) Act 2023 received Royal Assent in September 2023, aiming to simplify some of the rules by giving Government the ability to extend automatic enrolment to jobholders under the age of 22 and to require contributions to be paid from the first £1 of earnings. There will now be a consultation period on the scope and timing of any changes, so we will keep you updated as the eventual picture becomes clearer.

This paragraph was contributed by members of our pensions team partner, Faye Jarvis and associate, Scarlett Yu.  

Handling data breaches - workshops for in-house counsel 

22 November 2023, 8:30 - 11:30am at Macfarlanes offices

Data security consistently ranks as the primary concern of in-house counsel, compliance and HR professionals in surveys of perceived risks to their business. On 22 November 2023 our data protection specialists will lead an interactive workshop on how to handle common data breach scenarios. Based on actual cases, we will explore:

  • best (and worst) practice in responding to cyber-attacks;
  • actions by rogue employees; and
  • inadvertent data breaches.

Places are limited, so please get in touch with if you would like to attend.

Interested in employment tax? Read our recent employment tax update for October.