CM December 2023

Workers will need a minimum length of service before
qualifying for the right to request a more predictable
working pattern which is expected to be 26 weeks but
which will be confirmed in regulations.
Bill for workers
receives Royal Assent
THE Workers (Predictable Terms and Conditions) Bill
received Royal Assent on 18 September 2023.
The new Act, which is expected to come into force around
September 2024, will introduce a right for qualifying
workers to request a more stable working pattern where
there is a lack of predictability in relation to the work that
the worker does for the employer; the change relates to the
worker’s work pattern; and the worker’s purpose in applying
for the change is to get a more predictable work pattern.
Workers will need a minimum length of service before
qualifying for the right to request a more predictable
working pattern which is expected to be 26 weeks but
which will be confirmed in regulations. It will be possible
to make two requests per 12-month period and there will
be a statutory framework for making and responding to a
request.
Workers will be able to bring claims against employers for
procedural failings, as well as for unlawful detriment and
automatic unfair dismissal in certain circumstances.
Whilst this is a
whistleblowing
claim, the same
issue could arise
in respect of the
assessment of
compensation in
unfair dismissal
and discrimination
claims.
EAT considers whistleblowing
and causation
IN McNicholas v Care and Learning Alliance
and another, the Employment Appeal
Tribunal considered the losses flowing
from whistleblowing detriment and the
effect of intervening acts.
McNicholas was a teacher who had
made protected disclosures about
practices at the nursery where she
worked. In response, the nursery
complained about the claimant’s fitness
to teach to the General Teaching Council
for Scotland (GTCS). However, after
conducting an initial review, the GTCS
decided to investigate the claimant. She
brought Tribunal claims including a
claim for unlawful detriment for making
protected disclosures. The Tribunal found
the referral was malicious and an act of
‘revenge’.
The Tribunal upheld her claim, making
awards for past and future loss, injury to
feelings and psychiatric injury. However,
it calculated the awards to the date
when the GTCS decided to investigate
the Claimant’s fitness to teach after its
initial review of the referral. The Tribunal
found this was an intervening act which
broke the chain of causation between the
respondents' actions and McNicholas’s
loss; she appealed to the Employment
Appeals Tribunal.
The EAT allowed the appeal and remitted
the case for remedy to be re-assessed. The
GTCS’s decision to investigate the claimant
had not broken the chain of causation.
Given that the referral was malicious, the
decision to investigate was a natural and
reasonable consequence of the wrongful
act which remained the effective cause of
the claimant's loss.
This case serves as a useful
demonstration of the factors that will be
considered when determining whether a
chain of causation is broken. Whilst this
is a whistleblowing claim, the same issue
could arise in respect of the assessment
of compensation in unfair dismissal and
discrimination claims.
Brave | Curious | Resilient / www.cicm.com / December 2023 / PAGE 53