The pandemic may have slowed down the statute books but the legal timetable is picking up again. Alison Woods,Val Dougan and Aisleen Pugh look at the likely developments in employment law we can expect in 2023.
Flexible working to become a ‘day one’ right
The Employment Relations (Flexible Working) Bill 2022-23 is a private member’s bill to amend the existing statutory regime so that flexible working requests can be made from day one. It was published on 21 October 2022 and has now gained government backing.
The changes would include:
- making the right to request flexible working a “day one” right (there is currently a 26-week service requirement);
- allowing employees to make two requests in any 12-month period (rather than the current one request);
- reducing the decision period within which employers are required to respond to a request from three months to two months;
- introducing a requirement for employers to consult with an employee before rejecting their request; and
- removing the requirement that an employee must explain what effect the change would have on their employer and how that might be addressed.
The eight reasons employers have to refuse a statutory flexible working request remain.
Sexual harassment at work
Another long-anticipated reform is to the existing law on harassment. It was introduced to parliament via a private member’s bill on 15 June 2022 and makes provisions in relation to the duties of employers and the protection of workers under the Equality Act 2010. It has since received government support.
The Workers Protection Bill introduces a new duty on employers to take all reasonable steps to prevent sexual harassment in the workplace and reinstates employer liability for third-party harassment. If the bill is passed in its current form, an employee would be able to bring a third-party harassment claim against their employer after a single incident of harassment by, for example, a client or customer.
Even if the bill completes the parliamentary process in 2023, it will not come into force until 2024 at the earliest.
Carer’s leave
In September 2021, the government confirmed that it would introduce a new right to unpaid carers leave for one week per year.
A private member’s bill makes provision for employees to take one week’s unpaid leave each year for the purpose of caring for a dependant with a long-term care need. The right would apply from day one of employment.
The bill has government backing but there is no timetable for implementation.
Neonatal leave and pay
Changes are planned to introduce a right to paid leave for eligible employees with a child who is receiving or has received neonatal care.
Parents will have a right to neonatal care leave of at least one week and up to a maximum of 12 weeks regardless of length of service, and parents with at least 26 weeks’ continuous service will have a right to receive neonatal care pay at a prescribed statutory rate.
Employees taking neonatal care leave will have the same employment protections as those associated with other forms of family-related leave.
The neonatal leave bill passed its second reading in parliament in July but there is no known timetable for implementation.
Enhanced redundancy protection for pregnancy and maternity
Currently, women on maternity leave have special protection in a redundancy situation and must be offered a suitable alternative vacancy where one is available in priority over other employees at risk of redundancy.
The government is backing the Pregnancy and Maternity Discrimination Bill, which proposes to introduce regulations to extend this protection to employees during their pregnancy and after they return to work from maternity leave. The length of the protected period is not specified in the bill.
It has not been confirmed when the enhanced protection will come into force.
Retained EU Law Bill
The Retained EU Law (Revocation and Reform) Bill, which was introduced to parliament on 22 September 2022, provides that all retained EU law contained in secondary legislation will be revoked by a “sunset date” of 31 December 2023 unless a decision has been made before then to preserve it.
There has been no indication from the government about what may change although there could well be implications for regulations covering working time, TUPE, agency workers, part-time workers and fixed-term employees, all of which derive from EU law.
Other developments
In addition to the legal developments above, most recently the government has proposed the controversial Strikes (Minimum Service Levels) Bill which would provide for minimum service levels where strike action is taken in public services including health, rail, education, border security, nuclear decommissioning, and fire and rescue.
It is also important to report on what is not happening in 2023. Although there had been an announcement that the proposed changes to the IR35 regime would be reversed, the change in prime minister brought with it a change in policy, and the rules relating to IR35 remain unchanged.
Finally, it appears that for now at least the government’s proposals for a single enforcement body for employment rights has been shelved.
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