2022 was another turbulent year in which the climate, strike action and cost of living crisis (rather than Covid-19) dominated the people agenda. Many people-related changes are afoot which include enhanced employment rights and protections. So, what can we expect in employment law in 2023?
There are a number of Private Members’ bills currently making their way through Parliament which set out the legislative detail behind proposed changes that in some cases have been trailed for a number of years.
Although there remains uncertainty about the timing of the introduction of these changes (because implementation dates are as yet unknown), the direction of travel is clear and it is important that employers start to prepare for them in due course by reviewing and potentially updating their relevant people policies and practices and implementing appropriate management training to deal with the day to day practicalities of these changes.
Flexible working to become a “day one” right
The Employment Relations (Flexible Working) Bill 2022-23 is a Private Member’s Bill to make provision to amend the existing statutory regime for flexible working requests. It was published on 21 October 2022 and has now gained government backing.
The Bill covers many of the points raised in the government’s consultation on making flexible working the default. The changes would include:
- making the right to request flexible working a “day one” right (there is currently a 26-week service requirement);
- allowing employees to make two requests in any 12-month period (rather than the current one request);
- reducing the decision period within which employers are required to respond to a request from 3 months to 2 months;
- introducing a requirement for employers to consult with an employee before rejecting their request; and
- removing the requirement that an employee must explain what effect the change would have on their employer and how that might be addressed.
The eight business reasons for refusing a statutory request would remain unchanged, and guidance would be published on how employers should deal with temporary requests.
There is no timescale for implementation of the amending legislation, although we might expect to see this in the course of 2023.
For more information, please see our update Is flexibility the key to stability? Government publishes response to flexible working consultation (cms-lawnow.com).
Sexual harassment in the workplace
Another long-anticipated reform is to the existing law on harassment. A Private Member’s Bill, the Worker Protection (Amendment of Equality Act 2010) Bill which was introduced to Parliament on 15 June 2022, makes provision in relation to the duties of employers and the protection of workers under the Equality Act 2010. It has since received government support.
The Bill introduces a new duty on employers to take all reasonable steps to prevent sexual harassment in the workplace and reinstates employer liability for third party harassment. If the Bill is passed in its current form, an employee would be able to bring a third party harassment claim against their employer after a single incident of harassment by, for example, a client or customer. Previously the legal test only imposed liability after the third incident which meant that successful third party harassment claims were rare which ultimately led to the provision being repealed.
Even if the Bill completes the parliamentary process in 2023, it contains a 12-month delay period meaning it will not come into force until 2024 at the earliest.
Please see our update Heads-up on harassment changes (cms-lawnow.com) for further details.
In September 2021, the government confirmed in its response to its consultation on carer’s leave that it would introduce a new right to one week of leave per year for unpaid carers.
A Private Member’s Bill, the Carer’s Leave Bill, was subsequently introduced to Parliament on 15 June 2022 setting out a proposed legislative framework for the new right. The Bill makes provision for employees to take one week’s unpaid leave each year for the purpose of caring for a dependant with a long-term care need. The right would apply from “day one” and would include protection from dismissal or detriment as a result of having taken the leave.
The Bill now has government backing but there is no timetable for implementation as yet.
Neonatal Leave and Pay
Changes are planned to introduce a right to paid leave for eligible employees with a child who is receiving, or has received, neonatal care.
Parents will have a right to neonatal care leave of at least one week and up to a maximum of 12 weeks regardless of length of service, and parents with at least 26 weeks’ continuous service will have a right to receive neonatal care pay at a prescribed statutory rate. Parents taking neonatal care leave will have the same employment protections as those associated with other forms of family related leave including protection from dismissal or detriment as a result of having taken leave.
The proposed legislative framework is set out in a Private Member’s Bill, the Neonatal Care (Leave and Pay) Bill. The Bill had its first reading in Parliament on 15 June 2022 and, soon afterwards, the government announced that it was backing the Bill. Again, there is no known timetable for implementation.
Enhanced redundancy protection for pregnant employees and those on maternity leave
Following the government’s consultation on extending redundancy protection for women and new parents, another Private Member’s Bill, the Protection from Redundancy (Pregnancy and Family Leave) Bill, was introduced to Parliament which reflected the proposals outlined in the government’s response to the consultation.
Currently, women on maternity leave have special protection in a redundancy situation and must be offered a suitable alternative vacancy where one is available in priority over other employees at risk of redundancy. The Bill empowers the government to introduce regulations to extend this protection to employees during their pregnancy and after they return to work from maternity leave (or adoption or shared parental leave). The length of the protected period is not specified in the Bill and remains to be determined by the regulations although the government response outlined a six-month period.
The government announced on 21 October 2022 that it is backing the Bill although it is not yet known when the enhanced protection will come into force.
Retained EU Law (Revocation and Reform) Bill
We may see changes next year (or later) to certain UK employment laws that derive from EU law.
The Retained EU Law (Revocation and Reform) Bill, which was introduced to Parliament on 22 September 2022, provides that all retained EU law contained in secondary legislation will be revoked by a “sunset date” of 31 December 2023 unless a decision has been made before then to preserve it (although there is scope to delay this until 23 June 2026 which is the 10-year anniversary of the Brexit Referendum).
There has been no indication from the government about what may change although there could well be implications for regulations covering working time, TUPE, agency workers, part-time workers and fixed-term employees all of which derive from EU law.
Given the potential significance of this development, it is definitely one for employers to keep firmly on their radar and something we will continue to monitor closely.
Other anticipated changes in 2023 include:
- Data protection. The Data Protection and Digital Information Bill was laid before Parliament in July 2022 and seeks to introduce greater flexibility for data controllers to identify, manage and mitigate risks, with the requirement for data protection impact assessments to be removed and the threshold for rejecting a data subject access request to be lowered.
- Industrial relations. The Transport Strikes (Minimum Service Levels) Bill would provide for minimum service levels where strike action is taken in certain transport services.
It is also important to report on what we know is not happening in 2023. Although there had been an announcement in September 2022 that the proposed changes to the IR35 regime would be reversed, the change in Prime Minister brought with it a change in policy, and so the rules relating to IR35 remain unchanged. It also appears that for now at least the government’s proposals for a single enforcement body for employment rights has been shelved.
Please do get in touch with your usual CMS contact if you would like to discuss the potential implications of any of these measures for your business and workforce.