Whilst the government appears to have shelved plans for a standalone employment bill of the sort first announced in 2019, many of the employment law rights which were originally expected to be included in the legislation are now progressing through a series of private member’s bills. These were introduced to Parliament last year and currently have the support of the government.
Moreover, the Retained EU Law (Revocation and Reform) Bill has the potential to cause the biggest changes in employment law in decades. This Bill would, if it becomes law, “sunset” (i.e. revoke) vast swathes of EU-derived employment legislation in the UK, except for any legislation which the government takes proactive steps to retain. While it seems reasonably likely that the 31 December 2023 deadline will be extended, the Bill continues to cause uncertainty.
We look at seven key pieces of employment legislation due to be introduced in 2023.
1. Protection from harassment
The Worker Protection (Amendment of Equality Act 2010) Bill arose out of the response to the Government Consultation on Sexual Harassment in the Workplace in 2021. The Bill will reintroduce employers’ liability for third party harassment of employees, for example by customers and clients, during the course of their employment.
Employers will be liable if they fail to take all reasonable steps to prevent such harassment and liability can apply to the first incident of harassment that occurs.
The previous “three strikes” requirement i.e. the need for previous incidents of harassment before a claim can be brought, will not be reintroduced. The liability will apply to all acts of third-party harassment in the workplace, meaning that harassment on the grounds of age, race, religion or sexual orientation, for example, will be protected, as well as sexual harassment.
The Bill will also introduce a specific duty on employers to take all reasonable steps to prevent sexual harassment of employees. Employees will not be able to bring a standalone claim based on an employer failing in this preventative duty.
If, however, employees are successful in bringing a sexual harassment claim under the Equality Act 2010 and can show the employer has breached this new duty, then an Employment Tribunal will have the power to uplift the compensation awarded to employees by up to 25%.
The Equality and Human Rights Commission (“EHRC”) will also be able to bring separate enforcement actions against employees for breaches of the new duty, although we expect this is likely to be reserved for the most severe cases.
The Bill’s main provisions are set to come into force a year after it passes, giving employers time to adapt to the changes. In the meantime, the EHRC’s technical guidance on harassment at work from 2020 contains practical steps that employers should take to prevent harassment such as:
- Ensuring anti-harassment policies are up to date and widely accessible to staff
- Keeping a central record of harassment complaints, to allow for analysis of harassment trends
- Training staff in the different types of harassment that exist and how to deal with incidents.
2. Redundancy protection – extension for pregnancy and family leave
Under the Protection from Redundancy (Pregnancy and Family Leave) Bill, expectant employees will receive greater protection from redundancy during pregnancy, and new parents will have extended protection when they return from maternity, adoption and shared parental leave.
In redundancy scenarios, where an employer proposes to dismiss an employee who is on maternity, adoption, or shared parental leave, it is obliged to offer them any suitable alternative vacancy in priority to other employees who are provisionally selected for redundancy.
Failure to do so may result in the employee’s dismissal being automatically unfair and it may also give rise to a discrimination claim on the grounds of pregnancy and/or maternity under the Equality Act 2010.
The Bill would extend the redundancy protection period to cover any period of pregnancy and a specified period immediately following a return to work after family leave. The exact length of the protected period will be detailed in regulations but is expected to apply from when an employee first tells their employer they are pregnant until 18 months after birth, meaning that an employee returning from 12 months of maternity leave can receive six months of additional redundancy protection. The same will apply to adoption leave and shared parental leave.
The Bill is currently in the House of Lords and the main provisions will come into force two months after the Bill becomes law.
Employers should ensure that relevant policies are updated and training provided to ensure that managers are aware of the expanded protection and the impact on any future redundancy processes.
3. Right to request flexible working
The Employment Regulations (Flexible Working) Bill aims to give employees greater flexibility over when, how and where they work. Under the Bill, employees will be able to make two flexible requests in any 12-month period, as opposed to the current one request.
Employers will have just two months to respond to such requests, instead of the current three months, and will need to consult with employees on alternative options before rejecting a flexible working request.
Following the government’s response to the consultation on flexible working, published in December 2022, separate regulations will also allow employees to request flexible working from day one of their employment (removing the current requirement for 26 weeks’ continuous service prior to making a request).
The government has emphasised that this remains a right to request flexible working arrangements, and not a right to such arrangements.
Employers can, of course, still reject a request, and the government has decided that no changes should be made to the eight business grounds for rejecting a request, as set out in the existing flexible working legislation.
Employers will need to update their flexible working policies in light of these changes. The requirement to consult with employees will need to be factored into an employer’s processes for considering a flexible working request, and employers should be mindful of the tighter timeframe for considering flexible working requests.
However, the overall impact of these changes to the flexible working regime seems unlikely to be radical in the context of the post-Covid workplace. In many sectors, flexible working is increasingly sought by employees and offered by employers as a means of attracting and retaining talent.
4. Right to request a predictable work pattern
The government is supporting the Workers (Predictable Terms and Conditions) Bill, which will give workers and agency workers the right to request a predictable working pattern where their present arrangements lack predictability to their work pattern, including their hours, working days and the duration of their employment or engagement. Under the legislation, fixed-term contracts of 12 months or less are presumed to lack predictability.
The new right will mirror the current flexible working regime in many respects. For example, there is expected to be a 26 weeks’ service requirement, with workers and agency workers able to make two requests in a 12-month period, and employers and work agencies able to reject requests on specified statutory grounds. There will also be protection from detrimental treatment and/or dismissal for workers in conjunction with the new right.
5. EU law reform
The much-publicised and controversial Retained EU Law (Revocation & Reform) Bill is now making its way through the House of Lords, with numerous objections from across the political spectrum following its second reading earlier this month.
Many laws which were derived from the EU were transposed into the statute books in the UK following Brexit (i.e. they became “retained EU law”). This was to achieve legal consistency and facilitate a smooth transition out of the EU legal framework.
The new Bill adds a current “sunset” date of 31 December 2023, meaning that retained EU law will be automatically repealed in the UK unless it is restated or replaced before that date.
The principle of supremacy of EU law and other general principles of EU law will also be abolished, meaning that UK law would no longer need to be interpreted in line with EU law. In certain circumstances, the UK courts will also gain the ability to depart from previous case decisions which interpreted retained EU law.
While the Bill will not impact existing UK Acts of Parliament such as the Equality Act 2010, it will potentially affect significant aspects of secondary employment legislation (i.e. regulations made under the authority of an Act), including the TUPE Regulations, the Working Time Regulations, the Part-Time Workers Regulations, the Fixed Term Employee Regulations, and the Agency Workers Regulations.
The potential significance of this Bill cannot be underestimated. It seems likely, however, that the Government will focus on specific areas of legal reform as opposed to starting from scratch, given the obvious uncertainty that would be caused to employers. For example, it seems unlikely that the entirety of the Working Time Regulations would be subject to the sunset, given that this would remove employees’ statutory holiday entitlement.
However, some areas of employment law could be prime candidates for reform. For example, clarification on the principles for calculating holiday pay could be provided, given the string of UK and EU cases which have wrestled with exactly which payments need to be included in the calculation in addition to basic pay, such as commission and overtime.
Given the level of objections to the Bill, not to mention the limited time for reviewing thousands of affected laws across various sectors, it is possible that the relevant government departments will exercise powers under the Bill to push back the sunset date to a later time in relation to certain laws. Those powers permit the sunset to be delayed to a later date, so long as it is before 23 June 2026.
Nevertheless, we expect to see the government turning its attention to the reform programme this year by launching consultations and proposals for creating new UK laws to replace or amend existing EU-derived versions.
6. Industrial action
The Strikes (Minimum Service Levels) Bill was introduced to Parliament on 10 January 2023 and, if passed, will enable the government to set minimum levels of service in certain public services such as health, fire and rescue, education, transport, and border security. This means that those services would not lawfully be able to completely shut down during strike action.
The Bill would allow an employer to give a trade union a “work notice”, identifying which workers are required to work to ensure the minimum service levels required. Trade unions will be required to take “reasonable steps” to ensure that employees identified in a relevant work notice comply with it. The Bill would also remove protection from automatic unfair dismissal for any employee who takes part in a strike contrary to a valid work notice.
7. Family-friendly leave
The Neonatal Care (Leave and Pay) Bill will create a new day-one right for employees to take up to 12 weeks’ neonatal leave if their baby needs to spend time in neonatal care. There will be a statutory rate of pay for those with at least 26 week’s continuous service.
In addition, the Carer’s Leave Bill will introduce a day-one right for employees to take one week’s unpaid leave each year to provide or arrange care for a dependant with a long-term care need.
Subject to specified notice periods, the leave can be taken in increments of a day or half a day over a 12-month period. “Long-term care need” will cover:
- Illness or injury that requires, or is likely to require, care for more than three months
- A disability under the Equality Act 2010
- Care for a reason connected with old age.
If the Bill becomes law this year, detailed regulations are expected in 2024. It remains to be seen how popular this leave will be given it is an unpaid right, but employers may wish to add it into the mix with their other family leave policies and consider offering enhanced pay.
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