2023 could potentially see a variety of changes to UK employment law – we’ll be keeping a close eye on the below.
Flexible working laws
The Employment Relations (Flexible Working) Bill 2022-23 proposes to amend existing legislation in respect of flexible working requests.
The Bill, which gained Government backing last month, intends to implement the following:
- The legal right for an employee to request flexible working will become a day-one right. Under current rules, this is only available to those who have worked for an organisation for a minimum of 26 continuous weeks.
- The number of flexible working requests an employee can make per year will be increased from 1 to 2.
- And the timeframe for the employer to respond to a request will be cut to two months from three months.
- There will be a new requirement for employers to discuss alternative flexible working arrangements to a request if they intend to reject it.
- The process of making a flexible working request will be simplified by removing the requirement for employees to state how they think the effects of their flexible working request might impact their employer.
- The response also commits to non-legislative action, which includes:
- Establishing guidance that raises awareness and understanding of how to make and implement temporary flexible working requests; and
- Gathering evidence to better evaluate how informal flexible working operates in practice.
Note: there will be no updates to the current list of eight reasons an employer can give when refusing a flexible working request.
Reform of certain EU law
Last year, the Government said it was committed to reviewing all EU laws retained by the UK and reforming any that are perceived to be restricting the economy by the end of 2023.
This is likely to be done via the Retained EU Law (Revocation and Reform) Bill (also known as the Brexit Freedoms Bill) which is expected to outline a new fast-track process for the repeal of retained EU law with a possible ‘sunset clause’ which means some EU law will cease to have any effect on the UK.
All currently retained EU laws must be expressly transferred into UK law by 31 December 2023, or they will cease to be law in the UK.
This is relevant to the following:
- The Working Time Regulations 1998;
- Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE);
- Agency Worker Regulations; and
- A host of health and safety regulations.
It is not looking likely that there will be an extensive repeal of the EU Employment law.
Sexual harassment in the workplace
Another Bill which has received Government support is the Worker Protection (Amendment of Equality Act 2010) Bill, which specifies a new proactive duty for employers to take reasonable steps to prevent sexual harassment of their workers. It makes businesses responsible for the harassment of their employees by third parties.
Should the Bill come into force, it will allow workers to make third-party harassment claims against their employers following an incident of harassment by, for example, a client or customer.
However, any changes in respect of sexual harassment in the workplace will not come into force until 2024.
Family leave and pay
Through a variety of Private Members’ Bills, several family leave and pay reforms could be implemented. These are as follows:
- Under the Protection from Redundancy (Pregnancy and Family Leave) Bill, changes could be introduced which extend the rights of protection from redundancy for women during their pregnancy and after they have returned from maternity leave.
- The Carer’s Leave Bill provides workers with the entitlement to take one week’s unpaid leave per year for the primary purpose of caring for a dependant who has long-term care needs. The Bill also provides protections from dismissal or detriment due to taking this time off.
- The Neonatal Care (Leave and Pay) Bill will introduce working parents with a new right to take paid time off if their baby is receiving or has received neonatal care. The Bill will provide parents with a right to neonatal care leave of at least one week and up to a maximum of 12 weeks, regardless of their length of service. Those with a minimum of at least 26 weeks of continuous service will be able to receive neonatal care pay at a prescribed statutory rate.
- The Miscarriage Leave Bill and the Fertility Treatment (Employment Rights) Bill will provide workers with the legal right to paid leave in respect of:
- Bereavement; and
- Fertility treatment.
Strike action
Since the Summer, a variety of services and sectors have been affected by industrial action, including rail and post services, and it is not looking like this will end any time soon with the cost of living crisis set to continue.
The Government took action earlier in 2022 when it significantly increased unions’ potential liability for calling unlawful strikes. It also removed the restriction which prevented employers from hiring agency staff to fill the void left by workers participating in industrial action. In addition to this, the Government has indicated that it is considering implementing legislation that will make it more difficult for strike action to take place. This includes:
- Introducing minimum service levels for fire, ambulance, and rail services;
- Increasing ballot thresholds supporting industrial action from 40% to 50% of union members;
- The minimum notice period for industrial action could be increased to four weeks from two weeks.
These proposals are highly likely to be opposed by trade unions and their members, and it could make already fractious working relations even worse.
Other potential changes:
- A new statutory code on fire and re-hire practices requires businesses to hold “fair, transparent, and meaningful consultations” on proposed changes to employment terms.
- Legislation to replace the UK GDPR with a data protection system in the form of a Data Protection and Digital Information Bill.
How Nelsons can help
Laura Kearsley is a Partner in our Employment Law team.
If you require any advice in relation to the topics discussed in this article, please contact Laura or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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