Employment Law: What to expect in 2023

A number of key upcoming statutory developments are proposed for 2023 and should be on every employer’s radar. We set out the expected changes below:

The Employment Relations (Flexible Working) Bill

• A review of flexible working was first mentioned in the Queen’s speech in 2019. The Government promptly commenced a consultation into ‘Making Flexible Working The Default’ but the response to the consultation was delayed owing to changes in priorities caused by Covid-19. The response was finally published in early December 2022 and confirms that the Government intends to introduce changes to the right to request flexible working.

• You can find more details on the proposed changes to flexible working requests here. Amongst other changes to how flexible working requests are made, the Government response recommends new legislation which would make flexible working requests a day one right for employees. This replaces the current requirement that employees have 26 weeks’ service to make these requests.

• Other changes announced to the flexible working regime include: that employees can be allowed up to two flexible working requests in a 12-month period, rather than one; that employers will need to consult with employees about their request; employees will not have to set out the likely effects on the business of their requested changes; and employers will have to reply to the request within two months, not three. 

• This Bill is currently passing through Parliament. We can expect progress on this with the law officially changing sometime in 2023. There is no date confirmed for this yet, to stay updated do sign up for our newsletter.  

Data Protection and Digital Information Bill reform

We are also expecting to see updated data protection and employment practices guidance in 2023 from the Information Commissioner's Office (ICO). This is likely to include details on how recruitment and selection, employment records, monitoring of workers, and information about workers' health should be dealt with. Responses to consultations on these topics will be reviewed and guidance drafted for the new ICO guidance hub.

Statutory Code of Practice on dismissal and re-engagement

• Following the mass redundancies by P&O Ferries, in March 2022, the government announced that it would issue a Statutory Code of Practice relating to "fire and rehire" practices. This is intended to explain how businesses should hold fair, transparent and meaningful consultations on proposed changes to terms and conditions. If you would like further information on changing terms and conditions of employment, here is a link to our article.
• This Statutory Code has just been drafted and can be accessed here.  Failure to comply with the Code can result in an uplift to any award of up to 25% in any unfair dismissal claim where you dismiss because an employee does not agree to contractual changes.
• As well as the need for meaningful consultation with employees, the Code recommends that if changes to terms cannot be agreed, you should actively re-examine business strategy to reflect the potentially serious consequences for employees. A wider consideration of sharing information with employees is raised in the Code and it suggests that, if possible, where there are many proposed changes, that these are introduced over a period of time and the need for the changes reviewed, in case they are no longer needed.

The Employment (Allocation of Tips) Bill

This Bill is likely to make it into law in 2023. It is believed that the change will impact and benefit over a million workers and will make it unlawful for businesses to hold back tips and charges from workers. Employers will have to distribute tips in a fair and transparent way and keep records of how all tips have been dealt with.

The Bill will also bring in a process for employees to request information about their tipping records, and the employer will have to respond to the request within 4 weeks. If the Bill becomes law, it will likely be accompanied by a Code of Practice setting out further guidance.

Employers who award tips will need to have appropriate policies and procedures in place for this or risk potential Employment Tribunal claims. Our employment lawyers can guide and support you with this.

The Workers Protection Bill

This Bill introduces two things: a new duty on employers to take all reasonable steps to prevent sexual harassment in the workplace; and it reinstates employer liability for third-party harassment. If the bill is passed as drafted, an employee would be able to bring a third-party harassment claim against their employer after a single incident of harassment of any kind by, for example, a customer. There is unlikely to be a change in the law here until at least the end of this year.

The Carer’s Leave Bill

• The Government originally consulted about increased rights for carers in 2020, but again, the Covid-19 pandemic slowed progress. We can now however expect the introduction of additional rights for those with caring responsibilities in 2023.

• This Bill proposes a right to up to five working days of unpaid leave for employees with long term caring responsibilities for a dependant, from day one of their employment. Dependants will include partners, children, parents, people living in the same house as the employee and others who reasonably rely on the employee for providing or arranging care because of an illness or injury needing or likely to need care for longer than 3 months, a disability or by reason of old age. The Bill sets out notice requirements for the leave and specifies that the leave can be taken as full or partial days and no proof is needed to show how the leave is used.

• If the Bill becomes law, employees will be protected from dismissal or detriment resulting from them taking this leave. If an employer dismisses an employee because of their leave, it will be an automatically unfair dismissal.

• Preparing or updating parental leave policies ready for these changes is advisable. Our specialist employment lawyers can help if you would like advice or assistance with this and to stay up-to-date with legal changes, you can subscribe to our newsletter here.

The Neonatal Care (Leave and Pay) Bill

The Government is also proposing the introduction of additional rights for parents of babies receiving neonatal care. This Bill proposes that parents will be able to take up to 12 weeks’ paid leave to spend more time with their baby if it is receiving neonatal care due to being born early or being sick.  This entitlement will be in addition to and taken at the end of other leave entitlements like maternity and paternity leave and will be paid at the statutory rate.

The Protection from Redundancy (Pregnancy and Family Leave) Bill

• Additional rights for pregnant women and women on maternity leave are planned with the enhancement of the protection women on maternity, adoption or shared parental leave receive in redundancy situations proposed under this Bill. This is still at a relatively early stage and so may not become law in 2023 but further details are likely to be released this year.

• The Bill proposes to extend the period of protection relating to redundancy. Currently, an employer is obliged to offer an employee on maternity, adoption or shared parental leave an alternative suitable available role, if one is available, as a priority when compared to their colleagues. The extension to the protection will mean that the obligation to prioritise will run from the date the employee tells their employer they are pregnant or intending to take adoption or shared parental leave through to 6 months after the parent returns to work. This will offer greater protection to new parents and discourage employers waiting for parents to return to work before deciding on whether to make them redundant soon after their return.

The Retained EU Law (Revocation and Reform) Bill

By the end of 2023, this Bill aims to abolish all EU Law that is not specifically reinstated or replaced. The Cabinet Office indicates that there are over 2,400 pieces of EU law to go through and sets out those which have the biggest scope for change. Completing this task before the close of 2023 may not be possible and so a potential extension to June 2026 may be granted, but that is a hard deadline beyond which no extensions will be allowed.

Employment law which is EU derived secondary legislation, such as working time and the 48-hour capped working week, collective consultation rules, TUPE and rules on atypical workers like agency, part time and fixed-term workers, may be affected.

The government has said it intends to prioritise reforms which will have the greatest potential to ‘drive growth’. At present, it remains unclear what is going to happen to employment laws and the protection they provide. We will continue to keep our clients updated on the developments around this Bill.

Strikes (Minimum Service Levels) Bill

The government has recently announced that legislation will be pushed through parliament so that minimum service levels will be provided where strike action is taken in public services including health, rail, education, border security, nuclear decommissioning, and fire and rescue. We have little detail about the wording on this yet and when powers would be used, but government has said this would only be used sparingly and where necessary.

Annual increases to statutory payments

In April 2023, we will see the usual annual increases to statutory payments. This will include:

• National Minimum Wage increases as follows:
  • For workers aged 23 and over - £10.42 an hour.
  • For workers aged 18-20 - £7.49 per hour.
  • For young workers aged 16 and 17 and apprentices - £5.28 an hour. 

• Statutory maternity, adoption, paternity and shared parental pay will rise from £156.66 to £172.48 per week; and

• Statutory sick pay will rise from £99.35 to £109.40 per week.

Summary

There are many changes being expected in employment law during 2023, to stay updated on the key legislative changes and case law, ensuring your business is fully complying with employment law, why not subscribe to our newsletter? Or if you have specific question about any of the above, or any other employment law queries, our expert employment solicitors would be happy to assist.