Looking forward to 2023: What is coming up in employment law?

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.

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 will be 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.

Family-friendly measures

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.

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.

Industrial relations

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’).

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.

Financial services

On 9 December the Government announced plans to reform and repeal a number of City regulations, including the senior manager’s regime.

 

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