2023: Upcoming Employment Law

With the new year, we summarise what Employment Law changes we could see in 2023.

Strike action and industrial relations

The UK Government is expected to bring in new laws to provide for minimum service levels within the public sector and put further limits on the ability to strike.

It may mean that unions could be sued and employees dismissed if minimum service requirements are not met. There is also the potential for the minimum notice period for industrial action to be extended, and an increase in strike ballot thresholds.

For instance, the Transport Strikes (Minimum Service Levels) Bill 2022-23 will provide for minimum service levels in connection with strike action relating to transport services in England, Scotland and Wales. The UK Government has indicated that it is considering extending this measure to other public services including the NHS, education, fire and rescue, border security and nuclear decommissioning.

The High Court has granted permission for 11 trade unions to launch a legal challenge (Judicial Review) against regulations allowing agency workers to replace staff on strike.?The case is likely to be heard in March 2023 alongside separate legal cases launched by TUC-affiliated unions Unison and NASUWT against the regulations.

Further legislation will be announced this week and then debated by MPs.

Repeal of retained EU law

By the end of 2023, UK domestic law that is derived from EU law must either be transferred into UK law or expire. The Retained EU Law (Revocation and Reform) Bill 2022-23 provides for this.

This could have a significant impact in the employment field, such as the Working Time Regulations 1998, Agency Worker Regulations 2010 and Fixed Term Employee Regulations 2002. The Bill would also make it easier for courts and tribunals to depart from existing EU-derived domestic case law.

For further background, see our previous article. On 9 January 2023, the House of Commons Library published a research briefing on the progress of the Bill.

Flexible and atypical working

The Employment Relations (Flexible Working) Bill 2022-23 would make changes to the right to request flexible working, including requiring employers to consult with employees before refusing a request and allowing 2 requests within a 12 month period. The right to make a request from the first day of employment was not included in the Bill but it may be included in secondary legislation.

On 5 December the Government confirmed it would support the Bill in its response to its 2021 consultation, ‘Making flexible working the default’. The Bill contains a number of other provisions to increase flexibility at work, with an underlying motive to promote increased gender equality.

We would be happy to assist with updating your flexible working policies to ensure compliance. But these changes are not law yet. We are still waiting for the date to be confirmed.

Discrimination and harassment

The Worker Protection (Amendment of Equality Act 2010) Bill re-creates employers’ liability for harassment of their employees by third parties, introduces a statutory duty on employers to take all reasonable steps to prevent sexual harassment of their employees, makes provision for the enforcement of that duty and provides for a compensation uplift in sexual harassment cases where there has been a breach of the employer duty.

At the second reading of the Private Member’s Bill on 21 October 2022, the Government advised that it was supporting the Bill. We await the detail behind this. There is already existing law that provides significant protection from harassment, which we can advise on and provide bespoke training on.

Pay and benefits

The Employment (Allocation of Tips) Bill 2022-23 provides that an employer must ensure that the total amount of tips, gratuities and service charges paid is allocated fairly between workers of the employer at that place of business. On 15 July 2022, the Government announced that it was backing this Bill.?We have seen this come and go already, so it is unclear if/when this will eventually happen.

Working time and annual leave

The decision of the Supreme Court in?Chief Constable of the Police Service of Northern Ireland v Agnew?should be handed down during 2023.

The case, which was heard on 14-16 December 2022, will determine whether a series of unlawful deductions from pay is broken if the deductions are more than 3 months apart.

Part-year and irregular workers holiday

The UK Government has launched a consultation on calculating holiday entitlement for part-year and irregular hours workers. This is on the back of the recent case of Harpur Trust v Brazel which found that part-year workers are now entitled to a larger holiday entitlement than part-time workers who work the same total number of hours across the year. It seems that the UK Government wish to address this to ensure that holiday pay and entitlement received by workers is proportionate to the time they spend working.

We have a briefing note on this significant case with further information. If it is of interest, please do get in touch.

Termination of employment

In March 2022, the Government announced plans to introduce a new Statutory Code of Practice on dismissal and re-engagement (so-called ‘fire and rehire’).

It should set out how businesses must hold fair, transparent and meaningful consultations on proposed changes to employment terms. It is not clear when the Code will be published.

Family-friendly measures

A number of Private Members Bills will make changes to family friendly rights if passed in 2023.

For example, the Carer’s Leave Bill 2022-23 will entitle employees to take a week’s unpaid leave in any 12-month period in order to provide or arrange care for a dependant with a long-term care need. On 21 October 2022, the UK Government announced that it was backing the Bill.

The Neonatal Care (Leave and Pay) Bill 2022-23 will introduce a right to leave and pay for employees with responsibility for children receiving neonatal care. The original intention was for parents with a child who received neonatal care to be able to add up to 12 weeks of the time spent in neonatal care onto the end of the maternity or paternity leave. The Bill provides for a minimum of 1 week’s leave but this could be extended by Regulations.

The Protection from Redundancy (Pregnancy and Family Leave) Bill 2022-23 will extend protection from redundancy during or after pregnancy or after periods of maternity, adoption or shared parental leave for up to 18 months after the return to work. On 21 October 2022, the day of the second reading, the UK Government announced that it was backing the Private Member’s Bill.

As always with Employment Law, there is a lot to keep an eye on.

If you have any questions about these potential changes, or how to comply with the areas of law discussed, please do get in touch with Anderson Strathern’s Employment, Immigration and Pensions Team.?

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