2022 saw a war in Ukraine, a cost-of-living crisis, three Prime Ministers and two monarchs. By contrast, Employment Law did not see quite as many impactful changes, despite numerous updates being proposed via the Employment Law bill which was introduced before the covid-19 pandemic.We anticipate that there will be many adjustments to Employment Law in 2023 as attention has shifted further away from dealing with the pandemic. However, we thought we’d highlight the key developments to Employment Law that we expect to see in 2023 – legislative and otherwise.
Brexit Freedoms Bill
On the 31st of December 2023, retained EU Law will be either reinstated, replaced, or removed. Although this deadline can be extended to June 2026, it does mean that the government will have to at least decide which law it intends to preserve, or alternatively, it will simply fall away. The Government has not provided much direction on which law it intends to keep, replace or scrap and consequently it is difficult to say with certainty how this may affect UK law. Potential areas which may be impacted are the Working Times Regulations, TUPE and the Agency Workers Regulations.
Employment Law Reforms
The Employment Law bill is not yet in draft form. As a result of this, Private members bills are delivering some of the reforms which the Employment Bill pledged, with the support of the government. These are:The Employment Relations (Flexible Working) Bill introduces changes to the right to request flexible working, which are summarised as follows:
- A right to request flexible working will be a day one right,
- Employees will now be able to request two flexible working requests in a year,
- Employers must consult with employees prior to refusing a request; and
- Employers will have up to two months to decide in relation to the request.
The Protection from Redundancy (Pregnancy and Family Leave) Bill extends the right to be offered suitable alternative employment during a redundancy situation, where an employer is informed of pregnancy or an intention to take adoption or parental leave. The finer details surrounding the protection are to be outlined in the Secretary of State’s regulations on redundancies.The Carer’s Leave Bill introduces an entitlement of one week’s unpaid leave in a 12-month period for employees who are providing or arranging care for a dependent with a long-term care need. This will be available from the first day of employment. The Neonatal Care (Leave and Pay) Bill provides for additional paid leave, for a minimum of one week for employees who are responsible for children receiving neonatal care. The Worker Protection (Amendment of Equality Act 2010) Bill creates employers’ liability for harassment of their employees by third parties. It implements a duty on employers to take all reasonable steps to prevent sexual harassment of their employees. It 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 this employer duty.
Holiday pay: At the end of 2022, the Supreme Court heard a case from the Northern Ireland Court of Appeal to determine whether a gap of three months between underpayments of holiday pay will break a series of unlawful deductions. If it is found that 3 months does not break the series, this has the potential to be costly to employers, as it may impact how far back claims for unlawful deductions of holiday pay can potentially go. However, there is a two-year limit on such claims in England, Wales and Scotland.Agency Workers: The High Court has granted permission for a legal challenge brought by eleven trade unions, to protect the right to strike. The challenge will be in respect of the government’s new regulations, which allow agency workers to fill in for striking workers. The Trade Unions come from a wide range of sectors and represent millions of workers in the UK. The case has been scheduled to be heard in March 2023. Hybrid Working: The Office of Tax Simplification (OTS) published their report on hybrid and distance working, which suggested that the UK’s dramatic shift to hybrid working may have created a need for a tax policy change in relation to benefits and expenses rules, with improved guidance. The report also gives thought to short-term and permanent cross-border working arrangements and the accompanying compliance issues this creates. Data Protection: The Information Commissioner’s Office (ICO) are currently in consultation on draft guidance on monitoring at work and draft guidance on information about workers’ health. This is due to conclude on 26th January 2023. The finished guidance is anticipated to cover areas such as processing health data, transparency and retention, data sharing, automated decision making and specialist topics, such as sickness, injury and absence records. The final report is set to be published in 2023. Hire and Re-hire: A draft statutory code of Practice on dismissal and re-engagement is expected shortly following consultation with trade unions. Back in November, the government advised that we can expect to have this ‘in the near future’.
And finally, some reminders...
- The National Minimum/Living wage rates will be increased from April, alongside other statutory payments.
- There will be an extra bank holiday on the 8th of May 2023 for the Coronation of King Charles III.
Should you have any questions relating to the topics covered in this month’s e-bulletin or any other Employment Law related issue, please do not hesitate to contact a member of the team. We are here to help your business with any Employment Law challenge.