2023 is shaping up to be another busy year from an employment law perspective. We set out below some of the main changes that are expected to be introduced.
The end of EU law
The Retained EU Law (Revocation and Reform) Bill will mean that EU law which has not been incorporated into UK law will expire on 31 December 2023. That expiry date can be extended up to June 2026. The impact of this could potentially be very significant and at this stage it is not known which EU derived laws the Government intends to retain, but it could potentially result in significant changes to working time rules, paid holidays, TUPE as well as the laws that protects fixed term, part time and agency workers.
Trade Union strike reform
Following significant strikes during the course of 2022 which look set to continue and potentially worsen in 2023, the Transport Strikes (Minimum Service Levels) Bill proposes to introduce a requirement for minimum transport service levels affected by strike action.
The Government have also announced an intention to extend this measure to other public services such as fire and ambulance services, and the possibility that this will be extended to other public sectors such as health and education. The Government are also considering introducing further measures to deter industrial action from taking place.
Private members bills
The Government has announced that it is backing the following private members bills. If passed it is expected that most reforms will not take effect until 2024:
- Greater flexible working rights
The Employment Relations (Flexible Working) Bill proposes to amend the existing rules so that 2 flexible working requests can be made in a 12-month period, rather than 1 as is currently the case.
It is also proposed that the time limit for considering and responding to a request should be shortened from 3 months to 2 months and for employers to be required to consult with their employers about alternative options rather than just reject the flexible working request. In addition, employees will not be required to include in their request the impact of granting the request on the employer and ways to mitigate this.
The Government have also confirmed their intention to allow employees to make a flexible working request from day 1 of their employment instead of once they have at least 26 weeks service.
- Enhanced family related rights
The Neonatal (Leave and Pay) Bill will entitle the parents of a child that needs neonatal care to up to 12 week’s leave each. The leave can be taken at any point within 68 weeks from the child’s birth and applies irrespective of length of service and those who have at least 26 weeks service will be entitled to statutory pay. Employees who take the leave will be protected from dismissal or detriment as a result of having taken the leave.
The Carers Leave Bill proposes to introduce a right for carers to take 5 days unpaid leave in any 12-month period to care for a dependant with a long term care need. This right will also apply from the employees first day of employment and they will be protected from dismissal or detriment as a result of taking the leave.
The Protection from Redundancy (Pregnancy and Family Leave) Bill proposes to extend protection from redundancy from the point that a woman announces their pregnancy through to 6 months after they return from maternity, adoption and/or shared parental leave, rather than just while they are on such leave. Protected employees can still be selected for redundancy but will have priority over other employees for any suitable alternative vacancies.
The Fertility Treatment (Employment Rights Bill) proposes for employers to allow employees paid time off for fertility treatment appointments.
The Miscarriage Leave Bill proposes to entitle employees to take three days paid leave where they experience miscarriage, ectopic pregnancy or molar pregnancy before 24 weeks.
- Fairer allocation of tips
The Employment (Allocation of Tips) Bill proposes to introduce a new statutory code of practice on tipping to create a legal obligation on employers to allocate tips and gratuities fairly between employees. Organisations will be required to implement a written policy setting out how tips will be allocated and to keep a written record of tips received and how they have been allocated and to share that record with employees, if requested. However, the Bill will only apply to tips that an employer received or exercises control or significant influence over, not those paid in cash directly to workers.
New rules on ‘fire and rehire’
Following some high profile redundancies during 2022, notably P & O Ferries, a new statutory code of practice on dismissal and reengagement is expected early this year. This will require employers to hold fair, transparent and meaningful consultations with employees where changes to their terms of employment are proposed. Failure to follow the Code will result in an uplift of compensation of up to 25%.
Increased protection against discrimination and harassment
The Worker Protection (Amendment of Equality Act 2010) Bill proposes to impose liability on employers for harassment of employees by third parties, such as customers or clients.
It also intends to introduce a new proactive legal duty on employers to take all reasonable steps to prevent sexual harassment of employees in the course of their employment and provide for an uplift in compensation of up to 25% in sexual harassment cases where the employer has breached that duty.
A new data protection regime?
During 2022 the Government proposed that the current GDPR regime should be replaced by a new simplified UK data protection regime with less ‘red tape.’ However, with so many changes to Government last year it is not yet clear whether reform of data protection is part of the current Government’s strategy and so further details are awaited.
The data protection regulator in the UK, the Information Commissioners Office (“ICO”) are also consulting on proposed changes to their Employment Code of Practice in respect of monitoring employees and processing data about their health.
New Bill of Human Rights
In the summer of 2022 the Government introduced the ‘Bill of Rights’ which was intended to replace the Human Rights Act 1998. That Bill was subsequently dropped, but towards the end of last year it was reported that the Bill would be reintroduced.
Another extra bank holiday
Last year it was announced that there would be an additional Bank Holiday on 8 May 2023 in honour of the coronation of King Charles. Employers will need to consider the terms of their employment contracts to determine whether or not staff will be entitled to this additional day off.
As well as the changes mentioned above, the continued skills shortages and cost of living pressures are expected to continue to impact employers, making 2023 another challenging year.
If you have any queries on the proposed changes or your own plans for 2023 then please get in touch with a member of the Employment Team on 0345 646 0406 or fill in our online enquiry form and a member of our Team will be in touch.