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- Some significant employment law developments are on the horizon
for UK employers. - Bills in parliament that could advance this year include those
addressing flexible work arrangements, pregnancy and family leave
protections, carer’s leave, neonatal care leave, diversity and
inclusion, among others.
After the past two years, following the impact of Covid-19 and
the cost-of-living crisis, you would be forgiven for hoping, even
if just for a moment, that 2023 might be calmer and less eventful
than the previous two years. On the contrary, 2023 is looking even
busier in the world of UK employment law, with some seismic
developments predicted. We set out below what we can expect to see
in 2023.
Life outside of work: increasing employer obligations?
Bloggers and campaigners alike have been calling for increased
obligations on employers to recognise and respect that employees
have lives outside of work-in particular, that employees’
rights should be protected when they are navigating significant
life events (such as pregnancy or miscarriage) or playing important
societal roles (such as caring for family or older relatives).
Several Private Members Bills taking the lead in this area have now
been introduced into parliament. The following Bills have received
government backing, meaning that they are more likely to become law
in 2023:
- Employment Relations (Flexible Working) Bill -
In its response to the consultation on flexible
working, the government has given its support to the Employment
Relations (Flexible Working) Bill and various flexible working
measures including:
- Requiring employers to consult with an employee before
rejecting their flexible working request. - Permitting employees to make two flexible working requests in a
12-month period (rather than one as it is currently). - Requiring employers to respond to flexible working requests
within two months, a reduction from the current three months, and
removing the requirement that the employee must explain what effect
the change would have on the employer and how that could be
managed.
- Requiring employers to consult with an employee before
The consultation also supports removing the 26-week qualifying
period for a flexible working request, making this a day-one right
to request flexible working. This, however, is not contained in the
Employment Relations (Flexible Working) Bill and so the timing for
this is unknown.
- Protection from Redundancy (Pregnancy and Family Leave)
Bill – this aims to extend the protection from redundancy
for women during or after pregnancy. It is expected that this will
cover employees from the moment they inform their employer about
their pregnancy to six months after returning from maternity leave.
Enhanced protection is also proposed following a return to work
after shared parental leave and adoption leave. - Carer’s Leave Bill – which would introduce
five days’ unpaid carer’s leave each year, for an employee
who is providing or arranging care for a dependent with a
“long-term care need” (for example an illness, disability
or old age). This would also include protection from dismissal or
detriment as a result of taking this time off. - Neonatal Care (Leave and Pay) Bill – which
would introduce neonatal care leave and pay (for up to 12 weeks)
for parents whose babies spend time in neonatal care units. It is
proposed that neonatal care leave will be a “day-one”
right for employees and that neonatal care pay will be for
employees who satisfy the qualification criteria.
In addition, the Miscarriage Leave Bill, which
would introduce paid bereavement leave for those who have
experienced a miscarriage, and the Fertility Treatment
(Employment Rights) Bill, which would introduce paid time
off for fertility treatment, have been put before parliament but
not yet received backing. They are due to be debated in Q1 of
2023.
All of these Bills still need to pass through parliament and,
should they succeed, are unlikely to be passed into law before
summer of 2023. Also, in many cases the government would need to
introduce further regulations to enact the rights contained in
these Bills, meaning the new rights may not be “live”
until later.
Redundancies
Rarely a day has gone by in the first few weeks of 2023 that
there has not been a headline about a major company moving to make
redundancies. The Office for National Statistics has also recently reported that in September to
November 2022, the number of people reporting redundancy in the
three months before interview increased by 1.1 per 1,000 employees
compared with the previous three-month period, to 3.4 per 1,000
employees. With the economic outlook still not looking rosy in the
UK, this may continue to be a theme in 2023 with many more
employers considering redundancy or restructuring programmes.
The Protection from Redundancy (Pregnancy and Family
Leave) Bill, (see above) will also expand rights in this
space if this Bill is enacted. Employer’s will have to be even
more diligent at tracking who is entitled to the redundancy
protection and priority for any suitable alternative vacancies.
Although, given that this Bill will require further regulations
from the government, employers should have some time to plan for
these changes.
A continued focus on diversity and inclusion
Diversity and Inclusion continues to be a focus across the
board. This is most notably the case with the Worker Protection
(Amendment of Equality Act 2010) Bill, which, if passed, would
expand employee protections from workplace harassment in two
ways:
- Employees would be able to bring a claim against their employer
for workplace harassment by third parties (including but not
limited to customers or clients). Employers would be liable unless
they were able to prove that they took all reasonable steps to
prevent the harassment taking place; and - There would be a new positive obligation on employers to take
all reasonable steps to prevent sexual harassment of employees in
the workplace. This does not create a new claim for employees but
would be enforced by the UK’s Equality and Human Rights
Commission. Also, the Bill provides that if a Tribunal found that
an employee had been harassed and this duty had not been complied
with, any compensation award could be increased by up to 25%.
In addition, a new CIPD report has identified seven
recommendations to improve diversity and inclusion practices
including training managers on D&I, building a long-term
D&I plan and tracking the progress, and assessing the approach
to people management from a D&I perspective. The Financial
Conduct Authority has also published its review on approaches to diversity and
inclusion in financial services. Key findings were that many
firms’ strategies were generic, lacking clear actions to
achieve their goals and did not take a holistic view. This meant
that few firms had actionable data beyond gender and ethnicity and
there was generally a failure to get to the basis of the reasons
behind any representation issues.
Both reviews found that companies generally lacked processes to
track the effectiveness of their D&I policies and initiatives,
so that may be something companies will want to give renewed focus
to in 2023.
Strikes
Going into 2023, it seems that widespread industrial action, in
the form of strikes or action short of a strike, has no sign of
diminishing. Strikes have been ongoing since summer 2022 in respect
of train services, national health services (with nurses and
ambulance drivers), mail workers and now teachers. With the ongoing
cost-of-living crisis and inflation increases, workers working in
public (or quasi-public) services are demanding higher pay and
better working conditions. The strikes are impacting both
individuals and businesses alike and the ONS has recently reported that around 467,000 working days were
lost to strike action in November 2022, the highest since 2011.
The government has introduced the Strikes (Minimum Service
Levels) Bill (see here for further detail), promising that if
enacted, it will ensure that “striking workers don’t
put the public’s lives at risk and prevent people getting to
work, accessing healthcare, and safely going about their daily
lives.” It is clear, though, that the unions will resist
any such new laws, with protests already underway and so this
certainly will not be the end of this ongoing story.
Ending the year with a bang? The Retained EU Law (Revocation
and Reform) Bill
Lastly, but by no means least, if the above isn’t
significant enough, then the end of 2023 might bring with it
perhaps the most seismic shift in employment law in decades. If the
Retained EU Law (Revocation and Reform) Bill
passes in its current form, swathes of Retained EU Law will vanish
on December 31, 2023 unless preserved in some form. This may have
huge implications for EU-derived employment rights in the UK (such
as those enshrined in the Working Time Regulations, TUPE and
Maternity and Parental Leave Regulations) depending on what
Retained EU Laws the government chooses to lose, keep, or change.
The extent to which existing EU-derived employment laws will
disappear or change is unknown but, what is clear is that on the
current proposed timetable, the timing will be tight to adequately
consult or warn employers of large-scale amendments or changes.
However, the fact that the government has just announced its
consultation on calculating holiday entitlement for part-year and
irregular hours workers (following the Supreme Court’s decision
in Harpur Trust v Brazel last year) could mean that the
Working Time Regulations will be ripe for the first bonfire…
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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