After the past two years, following the impact of Covid-19 and the cost-of-living crisis, you would be forgiven for hoping, even if just for a moment, that 2023 might be calmer and less eventful than the previous two years. On the contrary, 2023 is looking even busier in the world of employment law, with some seismic developments predicted. We set out below what we can expect to see in 2023.
Life outside of work: increasing employer obligations?
Bloggers and campaigners alike have been calling for increased obligations on employers to recognise and respect that employees have lives outside of work. In particular, that employees’ rights should be protected when they are navigating significant life events (such as pregnancy or miscarriage) or playing important societal roles (such as caring for family or older relatives). Several Private Members Bills taking the lead in this area have now been introduced into parliament. The following Bills have received government backing, meaning that they are more likely to become law in 2023:
Employment Relations (Flexible Working) Bill - In its response to the consultation on flexible working, the government has given its support to the Employment Relations (Flexible Working) Bill and various flexible working measures including:
- Requiring employers to consult with an employee before rejecting their flexible working request.
- Permitting employees to make two flexible working requests in a 12-month period (rather than one as it is currently).
- Requiring employers to respond to flexible working requests within two months, a reduction from the current three-months, and removing the requirement that the employee must explain what effect the change would have on the employer and how that could be managed.
The consultation also supports removing the 26-week qualifying period for a flexible working request, making this a day-one right to request flexible working. This, however, is not contained in the Employment Relations (Flexible Working) Bill and so the timing for this is unknown.
- Protection from Redundancy (Pregnancy and Family Leave) Bill - this aims to extend the protection from redundancy for women during or after pregnancy. It is expected that this will cover employees from the moment they inform their employer about their pregnancy to six months after returning from maternity leave. Enhanced protection is also proposed following a return to work after shared parental leave and adoption leave.
- Carer’s Leave Bill - which would introduce five days’ unpaid carer’s leave each year, for an employee who is providing or arranging care for a dependent with a “long-term care need” (for example an illness, disability or old age). This would also include protection from dismissal or detriment as a result of taking this time off.
- Neonatal Care (Leave and Pay) Bill - which would introduce neonatal care leave and pay (for up to 12 weeks) for parents whose babies spend time in neonatal care units. It is proposed that neonatal care leave will be a “day-one” right for employees and that neonatal care pay will be for employees who satisfy the qualification criteria.
In addition, the Miscarriage Leave Bill, which would introduce paid bereavement leave for those who have experienced a miscarriage, and the Fertility Treatment (Employment Rights) Bill, which would introduce paid time off for fertility treatment, have been put before parliament but not yet received backing. They are due to be debated in Q1 of 2023.
All of these Bills still need to pass through parliament and, should they succeed, are unlikely to be passed into law before summer of 2023. Also, in many cases the government would need to introduce further regulations to enact the rights contained in these Bills, meaning the new rights may not be “live” until later.
Rarely a day has gone by in the first few weeks of 2023 that there has not been a headline about a major company moving to make redundancies. The Office for National Statistics has also recently reported that in September to November 2022, the number of people reporting redundancy in the three months before interview increased by 1.1 per 1,000 employees compared with the previous three-month period, to 3.4 per 1,000 employees. With the economic outlook still not looking rosy in the U.K., this may continue to be a theme in 2023 with many more employers considering redundancy or restructuring programmes. We take a more in depth look at the redundancy process and key points for employers to bear in mind here [link to article].
The Protection from Redundancy (Pregnancy and Family Leave) Bill, (see above) will also expand rights in this space if this Bill is enacted. Employer’s will have to be even more diligent at tracking who is entitled to the redundancy protection and priority for any suitable alternative vacancies. Although, given that this Bill will require further regulations from the government, employers should have some time to plan for these changes.
A continued focus on diversity and inclusion
Diversity and Inclusion continues to be a focus across the board. This is most notably the case with the Worker Protection (Amendment of Equality Act 2010) Bill, which, if passed, would expand employee protections from workplace harassment in two ways:
- Employees would be able to bring a claim against their employer for workplace harassment by third parties (including but not limited to customers or clients). Employers would be liable unless they were able to prove that they took all reasonable steps to prevent the harassment taking place; and
- There would be a new positive obligation on employers to take all reasonable steps to prevent sexual harassment of employees in the workplace. This does not create a new claim for employees but would be enforced by the UK’s Equality and Human Rights Commission. Also, the Bill provides that if a Tribunal found that an employee had been harassed and this duty had not been complied with, any compensation award could be increased by up to 25%.
In addition, a new CIPD report has identified seven recommendations to improve diversity and inclusion practices including training managers on D&I, building a long-term D&I plan and tracking the progress, and assessing the approach to people management from a D&I perspective. The Financial Conduct Authority has also published its review on approaches to diversity and inclusion in financial services. Key findings were that many firms' strategies were generic, lacking clear actions to achieve their goals and did not take a holistic view. This meant that few firms had actionable data beyond gender and ethnicity and there was generally a failure to get to the basis of the reasons behind any representation issues.
Both reviews found that companies generally lacked processes to track the effectiveness of their D&I policies and initiatives, so that may be something companies will want to give renewed focus to in 2023.
Going into 2023, it seems that widespread industrial action, in the form of strikes or action short of a strike, has no sign of diminishing. Strikes have been ongoing since summer 2022 in respect of train services, national health services (with nurses and ambulance drivers), mail workers and now teachers. With the ongoing cost-of-living crisis and inflation increases, workers working in public (or quasi-public) services are demanding higher pay and better working conditions. The strikes are impacting both individuals and businesses alike and the ONS has recently reported that around 467,000 working days were lost to strike action in November 2022, the highest since 2011.
The government has introduced the Strikes (Minimum Service Levels) Bill (see here for further detail), promising that if enacted, it will ensure that “striking workers don’t put the public’s lives at risk and prevent people getting to work, accessing healthcare, and safely going about their daily lives”. It is clear, though, that the unions will resist any such new laws, with protests already underway and so this certainly will not be the end of this ongoing story.
Ending the year with a bang? The Retained EU Law (Revocation and Reform) Bill
Lastly, but by no means least, if the above isn’t significant enough, then the end of 2023 might bring with it perhaps the most seismic shift in employment law in decades. If the Retained EU Law (Revocation and Reform) Bill (see here) passes in its current form, swathes of Retained EU Law will vanish on 31 December 2023 unless preserved in some form. This may have huge implications for EU-derived employment rights in the UK (such as those enshrined in the Working Time Regulations, TUPE and Maternity and Parental Leave Regulations) depending on what Retained EU Laws the government chooses to lose, keep, or change. The extent to which existing EU-derived employment laws will disappear or change is unknown but, what is clear is that on the current proposed timetable, the timing will be tight to adequately consult or warn employers of large-scale amendments or changes. However, the fact that the government has just announced its consultation on calculating holiday entitlement for part-year and irregular hours workers (following the Supreme Court’s decision in Harpur Trust v Brazel last year) could mean that the Working Time Regulations will be ripe for the first bonfire…