With businesses planning for the year ahead against a backdrop of economic uncertainty and with industrial action dominating the headlines, we take a look at what employers can expect in employment law in 2023.
In the face of strike action in multiple sectors during 2022 and into 2023, the Government has introduced and proposed a number of measures in the industrial relations arena. In October 2022, the Government published the Transport Strikes (Minimum Service Levels) Bill. That Bill has now been replaced with the Strikes (Minimum Service Levels) Bill which will enforce minimum service levels in a number of sectors including health, education, fire and rescue and transport services as well as border security and decommissioning nuclear installations and management of radioactive waste and spent fuel. The new Bill will allow minimum service levels to be set by the Government following consultation and it intends to consult first with fire, ambulance and rail services. It hopes not to have to use the powers for other sectors, rather it expects parties in those sectors to reach a voluntary agreement on minimum service levels during strike action. There has been much opposition to the Bill from unions and Labour has said it will repeal the legislation if it wins the next election. The new Bill was published on 10 January 2023 and has just had its second reading in the House of Commons.
In the meantime, the High Court has granted permission for a judicial review on the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 which allow agency workers to fill in for striking workers, measures which came into force in July 2022. The case is due to be heard in March 2023.
There has been no further information on the Government's proposal announced in the Growth Plan 2022 in September 2022 to require trade unions to put pay offers from employers to a members' ballot to ensure that strike action can only be taken once negotiations have genuinely broken down.
Following on from the 2019 consultation on workplace sexual harassment, the Government confirmed it would introduce a new duty on employers to prevent sexual harassment and third party harassment in the workplace. It is now supporting a Private Members' Bill, The Worker Protection (Amendment of Equality Act 2010) Bill, which would introduce such protections. While Private Members' Bills usually do not become law, with Government backing it is likely that this Bill could find its way onto the statute books. The Government has also ratified the International Labour Organisation's Violence and Harassment Convention, recognising everyone's right to a workplace free from violence and harassment which will come into force on 7 March 2023.
New Employment Rights
A new Employment Bill was first announced in the Queen's Speech in December 2019. In December 2022 the Business Secretary, Grant Shapps, stated that there is no Employment Bill "on the cards per se", instead the Government has announced its support for a number of Private Members' Bill proposing new employment rights originally expected to be contained in the new Employment Bill. These include:
- a new statutory right of at least one week's unpaid leave for unpaid carers per year.
- a day one right to request flexible working and a new requirement for employers to consult employees where it cannot accommodate a request to explore alternative options.
- greater protection from redundancy for expectant mothers during pregnancy and extended protections for new parents when they return from maternity, adoption and shared parental leave.
- up to 12 weeks of paid leave, in addition to other leave entitlements such as maternity and paternity leave, for parents to spend more time with their baby who is receiving neonatal care (having been born prematurely or sick).
- a requirement that employers pass all tips to staff in full without deductions.
Our Horizon Scanner has more details on these developments.
Retained EU Law
In 2022, the Government introduced the Retained EU (Revocation and Reform) Bill 2022 to Parliament. The Bill is far-reaching and one to watch over the coming months as it could have a significant impact on employment law. It provides that EU-derived secondary legislation, such as regulations, and retained direct EU legislation will expire on 31 December 2023, unless preserved in some form, with provision for an extension mechanism until 23 June 2026. The Bill also provides for the ending of the principle of the supremacy of EU law, meaning that domestic law will be the highest law in the UK, subject to certain special circumstances. The Scottish and Welsh Governments, employer and employee bodies have all voiced their concerns with the Bill. (See article Sunset on Retained EU Law: Where does it leave UK Employment Law).
Diversity and Inclusion
Diversity and Inclusion will continue to be a priority on boardroom agendas for 2023. Last year, the Government committed to publishing diversity and inclusion resources for employers, and guidance on positive action by Spring 2023. We also expect new guidance on voluntary ethnicity pay gap reporting to be published (expected in summer 2022, but still awaited) and, as mentioned above, a bill which includes a new mandatory duty on employers to prevent sexual harassment and third party harassment in the workplace is currently progressing through Parliament.
Statutory Code of Practice on "Fire and Rehire"
The Government has confirmed that it will bring forward "in the near future" a new Statutory Code of Practice on the use of dismissal and re-engagement practices to bring about changes to employees' terms and conditions of employment. Tribunals and courts will be required to take into account the statutory code when considering relevant cases with the power to uplift an employee's compensation by 25% where the code applies and the employer has unreasonably failed to follow it.
Our Horizon Scanner [add hyperlink] has a round-up of future key cases for 2023.
For key developments of 2022, see Helen Almond's article on Looking back to look forward: 22 (HR Headlines) for 2022 here.
Knowledge Lawyer, Employment