Employment Law Updates 2023: Calm before the storm
- AuthorKimberley Whalen-Blake
I was recently asked to do an update on the things employers need to look out for in 2023. My initial thought was ‘not much was happening, this will be tough.’ Much of employment law changes come alongside government changes, the political and economic landscape. With Covid dominating for 2 years, and the theatrics we have seen in the UK government, I thought 2023 would be much like the 3 years before it. How wrong could I be?! 2023 is looking like it will be a year of much change. So, what are the key things to keep your eyes on? Fasten your seatbelts, a fast journey through the headlines is set out below:
Retained EU Law (Revocation & Reform) Bill
This proposed Bill has been pitched as the ‘most significant shake-up of employment in a generation’, whether that will in fact be true remains to be seen. If this Bill is enacted, it will require all EU law to be expressly transferred into UK law by 31 December 2023. Given not much progress has been made in the last 6.5 years since the Brexit vote and 3 years since the Withdrawal agreement, I am not personally convinced this will all be resolved in the next 11 months! The government does have powers to extend until 23 June 2026 (the 10-year anniversary) and I really would not be surprised if we are still talking about this in January of that year.
However, if/when it is enacted it is likely to have significant impacts of the Transfer of Undertakings (Protection of Employment) Regulations (‘TUPE’), Working Time Regulations (‘WTR’) and Agency Worker Regulations (AWR). All of these areas of law have been unpopular with the Conservative governments and are sure to change if they continue in power and sway more to being more business friendly. TUPE we would see it being less onerous in respect of consultation period and some scope to harmonise some terms. WTR changes are anticipated to the unpopular (and largely defunct with the opt-out) 48-hour working week will be scrapped, as well as changes to calculation of holiday pay and its accrual on sick leave. AWR, it is anticipated will be either subjected to significant reform or even repealed. So this is definitely one to watch this space!
Family Friendly Rights
Back in December 2019 the Employment Bill was being debated and even got a mention in the Queen’s Speech. However this appears to have been dropped during the mix of the Covid-19 pandemic. Instead, what we are now seeing is bits of this much larger bill in a huge influx of family friendly rights brought on the agenda in the form of many Private Member Bills. A few of these are being heavily supported by the Government and making their way through the House of Commons. In contrast to the possible changes with the EU Law Bill, these will without question fall more in the benefit of the employee and pose more pressure on businesses.
Employment Relations (Flexible Working) Bill.
Flexible Working legislation is likely to be extended allowing employees to request from day 1 of employment, make up to 2 requests each year and require employers to have consultation meetings before rejecting any request. This has been the subject to government consultation and the response was issued in December 2022 supporting it.
Protection from Redundancy (Pregnancy & Family Leave) Bill
Further protections for those who are pregnant/take maternity leave. Under this Bill the current protected period is likely to be extended. It will run from when the employer is notified in writing of the pregnancy until 6 months after the individual returns to the workplace (rather than ending on the individual’s return to work). Although the focus is on maternity leave, it is also likely adoption leave and shared parental leave will also follow suit. Under current legal protections those in the protected period get special protections in redundancy situations, particularly where there is suitable alternative employment. The extension of the 6 months period post return is inevitably to try and prevent the employer holding off a redundancy exercise until an individual returns from maternity leave, so the suitable alternative position is not automatically given to them. No doubt there will also be tighter controls in respect of ensuring there is no detriment suffered in any scoring matrix arising from the protected period.
Carer Leave Bill, Neonatal Care (Leave & Pay) Bill, Miscarriage Leave Bill, Fertility Treatment Bill
All designed to permit time off (unpaid for carers and paid for the rest) and to ensure they are not dismissed nor suffer any detriment for taking the time off.
Sexual Harassment Protection
A hot topic and repeatedly across the media since the #MeToo movement, regularly debated and recently part of government consultation. Originally there was greater protection for sexual harassment in the Equality Act 2010, however this was repealed in 2013. A large part of the proposed Worker Protection (Amendment of Equality Act 2010) Bill is reintroducing the protection from 3rd party harassment but is also intends to introduce a more pro-active duty on employers to curb sexual harassment in the workplace. An employer is likely to be required to take all reasonable steps to prevent harassment and failure to do so could result in an uplift of compensation by 25%. There is also talk of extending the time limit from 3 months to 6 months. It is highly likely a Code of Practice or guidance will be produced alongside this, but for now employers should start thinking of their intended strategies for tackling this (much like they did for tackling office ‘banter’) and perhaps get a head start by reading the consultation report. This is one that is unlikely to fall away.
It appears all the news stories of the hospitality sector taking a cut (or all) of their employees’ tips has prompted The Employment (Allocation of Tips) Bill. Hardly surprising given generally, it is the lower paid workforce where tips are most prevalent. This Bill will see the requirement of ensuring 100% of tips are allocated to the employees. Employers are going to be required to have a fair and transparent process (hello good friend Policy). It is likely the employer will need to ensure they keep records on the allocation in order to resist claims and I further suspect there will be another Code of Practice issued here too.
After the disruptions of strikes in the run up to Christmas and the ongoing promises of more, on 5 January 2023 the government has proposed new laws to be introduced in respect of striking. This Bill is yet to be named (answers on a postcard) but is likely to see a minimum service requirement imposed. A draft Bill is due to drop imminently, so keep an eye on this space.
The UK GDPR is set to be replaced by the Data Protection & Digital Information Bill. An update is due later in 2023, with consultations currently underway with the Information Commissioner’s Office.
Holiday pay, like every yearly update, is featuring heavily. Hot on the heels of the Supreme Court decision in Harpur Trust v Brazel (Part year workers holiday pay not being permitted to be pro-rated), we will get the Supreme Court’s judgment in Chief Constable of the Police Service of Northern Ireland v Agnew (heard in December 2022). The essence of this case is about historic holiday pay claims and whether a gap of 3 months or more in holiday pay can break the chain in a series of underpayments. An employee friendly decision here will have huge ramifications for employers across the UK. This case alone involves over 3700 police officers and employees and is estimated to be worth £30 million. A decision for the employees will mean all the holiday pay claims limited in 2016 to 2 years back pay in Bear Scotland v Fulton (EAT) will no longer be the case. One anticipates if this goes in Agnew’s favour we will see an expediated implementation of the Retained EU Law (Revocation & Reform) Bill and amendments to the Working Time Regulations.
April Rate Changes
Finally, as with every new tax year, we have adjusted pay rates. From 6 April 2023
National Minimum Wage Rates
- 23+ £10.42 per hour
- 21-22 £10.18
- 18-20 £7.49
- 16-17 (and apprentices) £4.81
SMP/SPP/ShPP/AP £172.48 per week
SSP £109.40 per week.
We are still waiting for confirmation of the increase of the weekly pay maximum for redundancy calculations and basic award compensation (unfair dismissal claims) and the increase to the Vento bands (discrimination compensation).
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