2023 Developments

The Retained EU Law (Revocation and Reform) Bill

This could either be the biggest development in Employment Law for many years, or something that turns into a false dawn, depending on what the Government does next.

Readers of previous MILS bulletins will be aware that, following Brexit, the Bill is looking to scrap or replace retained EU Laws.  The perceived advantage is that the UK could free itself from unnecessary EU Regulation, but the perceived concern is that because of the entrenched nature of EU Law, if the matters are rushed it could cause chaos and lack of certainty for business.

The Bill contains a “sunset clause” which means that many EU Laws will simply disappear unless replaced.  It could impact a wide area of Employment Law such as the Working Time Regulations, agency workers, maternity regulations, and TUPE, to name but some.

The original deadline was the 31st December 2023 but many think the Government may extend the deadline for implementation, possibly by several years, in order to allow further consultation and avoid a chaotic legal and regulatory situation.

Harassment

The Worker Protection (Amendment of Equality Act 2010) Bill is seeking to include a new pro-active duty on employers to take reasonable steps to prevent sexual harassment of their employees.  The Bill also seeks a reintroduction of liability for employers for harassment of staff by third parties.  This is an area of Law which has changed over the years, and it is hoped that the revival of third party liability will be more onerous on employers, thereby encouraging a culture of greater concern for their employees, thereby encouraging employers to prevent harassment before it occurs. Whether it does so or not is another question…

Family Matters

There are a number of private members bills going through Parliament which seek to mirror some of the proposals that were in the original Employment Bill (which seems to have slipped down, if not off, the Government’s agenda).  Look out for the following in 2023:

• The introduction of a week’s carer’s leave (this is to assist employees with dependents who have carer responsibilities).  It is likely to be unpaid leave that is granted.  
  
• There is a Bill to introduce neonatal leave and pay giving rights to paid time off for parents with babies in neonatal units.  
  
• The Protection from Redundancy (Pregnancy and Family Leave) Bill looks to extend protection for pregnant women, increasing what is known as the ‘protected period’, from when an employee informs their employer of pregnancy, to up to six months after they have returned from maternity leave.  The proposal is also that, where employees are protected, although they can still be selected for redundancy, they will in fact ‘trump’ other candidates for suitable vacancies.  Some of the details are not yet known as to whether, for example, there will be length of service criteria.  The definition of what is a ‘suitable alternative vacancy’ is also likely to be a difficult area in law (as it is presently with case law relating to redundancy more generally).  It is an area which is likely to lead to further litigation.

Flexible Working

The Employment Relations (Flexible Working) Bill is also going to bring changes in flexible working.  Amongst other changes, it is likely workers will have the right to request flexible work from day 1 of employment, require more consultation, and increase in the number of possible requests employees can make per year.  Final details are still to be confirmed.

New Statutory ACAS Code

We are awaiting a new ACAS Code of Practice which will be applicable in Tribunals.  The Code is going to be on “fire and rehire”, following the outcry in Spring 2022 with the mass dismissals at P&O.  The Code is intended to require employers to hold fair and meaningful consultation (which did not happen with P&O).  As with the other ACAS codes of practice, departure from the Code could result in an uplift of 25% in any Tribunal compensation.

National Minimum Wages Rises

As usual, April will see the national minimum wage rise and it will go up to £10.42 from April 2023.  This is a very large rise compared to previous years due to inflation being so high.  There will be other increases to statutory rates which we are likely to cover in the Spring Update – so watch this space.

Strikes (Minimum Service Levels) Bill

As many readers will have seen in the news in recent months, the Government intends to introduce a Bill setting minimum service levels (MSLs) in a number of sectors, in order to avoid disruption to the public.  Labour has already made clear that if it became the new Government in the next few years it would scrap the Bill.

Holiday Pay

Finally many readers will be aware of the Supreme Court case last year of Harpur Trust vs Brazel which has effectively given term-time and zero hours employees unfair, advantages in holiday accrual.  It potentially puts them in a more advantageous position than normal part-time workers.  The Government is seeking to reverse this decision with statutory law. The Government’s Bill seeks to effectively overturn the disparity from Harpur, by making sure that holiday pay and entitlement is again proportionate to the time that employees actually spend working (this was arguably the position before the Supreme Court decision earlier this year).

In another case, 2023 should be the year in which the final outcome of the decision in Chief Constable of the Police Service of Northern Island vs Agnew is decided.  This is of significance to employers as this case is looking at whether claims for holiday pay can be brought where there are gaps of more than 3 months between periods of underpayment.  Some years ago, the Employment Appeal Tribunal decision in Bear Scotland meant that employers could argue that historic underpaid holiday claims were lost where there were such gaps.  This may however be overturned, depending on the decision in Agnew, so it is worth looking out for the judgment. We will report on it when it is published.