As 2022 draws to a close, we look forward to what you need to have on your employment law radar in 2023. Although the much-trailed Employment Bill did not form part of the current Government’s legislative programme, it seems that many of the measures which would have been included may in any event become law as the Government has announced its support for a series of Private Members Bills which in effect are the Employment Bill by the back door. Below we set out the developments to expect in key areas in 2023.
Discrimination and harassment
The Worker Protection (Amendment of Equality Act 2010) Bill creates employers’ liability for harassment of their employees by third parties, introduces a duty on employers to take all reasonable steps to prevent sexual harassment of their employees, makes provision for the enforcement of that duty and provides for a compensation uplift in sexual harassment cases where there has been a breach of the employer duty. At the second reading of the Private Member’s Bill on 21 October 2022, the Government advised that it was supporting the Bill. On 6 February 2023, following amendment and its third reading in the House of Commons, the Bill had its first reading in the House of Lords. The Bill is currently scheduled for its second reading in the House of Lords on 24 March 2023.
In relation to the duty to prevent third party harassment, interestingly the government has unexpectedly introduced an amendment to the Bill so that employers will not be found to have failed to take reasonable steps to prevent third-party harassment simply by virtue of not preventing an expression of an opinion by the third-party, in certain circumstances.
The relevant circumstances are as follows:
- a third party harasses B in the course of B’s employment;
- the harassment falls within section 26(1) (unwanted conduct
related to a relevant protected characteristic) and not within
section 26(2) or (3) (unwanted conduct of a sexual nature etc);
- the conduct constituting the harassment involves a conversation
in which B is not a participant, or a speech which is not aimed
specifically at B;
- the conversation or speech involves the expression of an
opinion on a political, moral, religious or social matter;
- the opinion expressed is not indecent or grossly offensive; and
- the expression of the opinion does not have the purpose of
violating B’s dignity or of creating an intimidating, hostile,
degrading, humiliating or offensive environment for B.
This also applies to employee-to-employee harassment. However, it does not apply to sexual harassment.
The amended Bill can be read here and the Hansard debate leading to this amendment can be read here. It appears the motivation behind the amendments includes a fear that, “…employers may take unreasonable or drastic measures to avoid liability for harassment of their staff, particularly by third parties, to the extent that they will feel obliged to shut down conversations conducted in their workplaces.” Whether, in practice, however, this amendment assists employers or serves simply to muddy the waters remains to be seen.
Working time and annual leave
The decision of the Supreme Court in Chief Constable of the Police Service of Northern Ireland v Agnew should be handed down during 2023. The case, which was heard on 14-16 December 2022, will determine whether a series of unlawful deductions from pay is broken if the deductions are more than 3 months apart.
Flexible and atypical working
The Employment Relations (Flexible Working) Bill 2022-23 is a Private Members Bill which would make changes to the right to request flexible working, including permitting an employee to make 2 requests in a year and requiring employers to consult with employees before refusing a request.
On 5 December the Government confirmed it would support the Bill in its response to its 2021 consultation, Making flexible working the default. Further details are available here.
The Department for Business, Energy & Industrial Strategy (BEIS) announced on 3 February that the Government is backing Blackpool South MP Scott Benton’s Workers (Predictable Terms and Conditions) Bill. The Bill seeks to ensure that all employees, even agency workers, receive more predictable working patterns. If a worker’s existing working pattern lacks certainty in terms of the hours they work, the times they work or if it is a fixed term contract for less than 12 months, they will be able to make a formal application to change their working pattern to make it more predictable.
A number of Private Members Bills will make changes to family friendly rights if passed in 2023. The Carer’s Leave Bill 2022-23 will entitle employees to take a week’s unpaid leave in any 12-month period in order to provide or arrange care for a dependant with a long-term care need. On 21 October 2022 the Government announced that it was backing the Bill. On 3 February 2023, the Bill had its third reading in the House of Commons and on 6 February 2023, it had its first reading in the House of Lords.
The Neonatal Care (Leave and Pay) Bill 2022-23 will introduce a right to leave and pay for employees with responsibility for children receiving neonatal care. The original intention was for parents with a child who received neonatal care to be able to add up to 12 weeks of the time spent in neonatal care onto the end of the maternity or paternity leave. The Bill provides for a minimum of 1 week’s leave but this could be extended by Regulations.
The Protection from Redundancy (Pregnancy and Family Leave) Bill 2022-23 will extend protection from redundancy during or after pregnancy or after periods of maternity, adoption or shared parental leave for up to 18 months after the return to work. On 21 October 2022, the day of the second reading, the government announced that it was backing the Private Member’s Bill. On 3 February 2023, the Bill had its third reading in the House of Commons and completed its passage there. During the debate, Kevin Hollinrake MP, Parliamentary Under-Secretary of State for the Department for BEIS, said that the government “was considering” the calls for the limitation period for claims to be extended to six months, although he noted that the tribunal already has some limited discretion to extend the current three-month limitation period. Mr Hollinrake also stated that the government was looking carefully at whether the regulations will impose a minimum threshold, so that only those who have taken six weeks of qualifying leave or more will qualify for the extended protection. On 6 February 2023, the Bill had its first reading in the House of Lords. There is as yet no timeline for when any draft regulations will be published.
The Transport Strikes (Minimum Service Levels) Bill 2022-23 will provide for minimum service levels in connection with strike action relating to transport services. The Government has indicated that it is considering extending this measure to other public services and may introduce further measures to deter industrial action in the public sector.
*UPDATE* The High Court has granted permission for 11 trade unions to launch a legal challenge against regulations allowing agency workers to replace staff on strike. In September, 11 trade unions and the TUC announced they were seeking a judicial review of the new regulations, which repeal a ban on the use of agency workers to cover employees on strike. The case is likely to be heard in March alongside separate legal cases launched by TUC-affiliated unions Unison and NASUWT against the regulations.
Repeal of retained EU law
The Retained EU Law (Revocation and Reform) Bill 2022-23 provides that EU-derived secondary legislation and retained direct EU legislation will expire on 31 December 2023 unless otherwise expressly preserved by ministerial order. This will include many regulations in the employment field, such as the Working Time Regulations 1998, Agency Worker Regulations 2010 and Fixed Term Employee Regulations 2002. The Bill would also make it easier for courts and tribunals to depart from existing EU-derived domestic case law.
Pay and benefits
The Employment (Allocation of Tips) Bill 2022-23 provides that an employer must ensure that the total amount of tips, gratuities and service charges paid is allocated fairly between workers of the employer at that place of business. On 15 July 2022, the Government announced that it was backing this Bill.
Termination of employment
In March 2022, the Government announced plans to introduce a new Statutory Code of Practice on dismissal and re-engagement (so-called ‘fire and rehire’). On 24 January 2023 the Government launched a consultation on a draft Statutory Code.
Human rights and modern slavery
On 22 June 2022, the government introduced the Bill of Rights Bill 2022-23, which aims to repeal the Human Rights Act 1998 and create a new domestic human rights framework around the ECHR, to which the UK will remain a signatory. On 7 September 2022, it was reported that the Bill was being dropped before its second reading. The Government was reported to be looking at different legislative options for reform. On 7 November 2022, however, it was reported that the Bill would be back in parliament shortly.
On 9 December the Government announced plans to reform and repeal a number of City regulations, including the senior manager’s regime.