As we enter a new calendar year, the prospect of a significant employment law shake-up
looms.
Hot on the heels of several private members’ bills backed by the Government in late 2022
(some of which contained reforms originally intended for the now-scrapped Employment
Bill), we ponder some of the key anticipated changes set to shape the employment law
sphere in the coming months and beyond.
1- Flexible working: the new default?
The Government have committed to giving employees the right to request flexible
working from “day one”, though details as to when we can expect this change to kick
in are currently unknown.
The right to request flexible working from “day 1” would be a stark change from the
rules in force as at the time of writing, which provide that an employee can only make
a statutory flexible working request once they have been employed for at least 26
weeks and not from the first day of employment.
The Government have also supported a measure which would require an employer
to consult with an employee on “available options” before rejecting their flexible
working request, imposing a minimum response time of two months for employers to
revert to any flexible working requests, and allowing employees to make up to two
flexible working requests per year (at present, employees can only submit one
flexible working request per year). The Employment Relations (Flexible Working Bill)
2022-3, which proposed these changes, also removed the requirement that an
employee must explain what effect their requested flexible working would have on
their employer and how that might be addressed.
Whilst the Government’s response to the consultation on flexible working and
proposed changes are a step in the right direction (particularly, given flexible working
has become the ‘norm’, informal flexible working is commonplace across many
industries, and employee expectation of flexibility from their employers is
heightened), any hope of an overhaul of existing rules on flexible working stop right
there. The “day one” right will be a right to request flexible working, not to have
flexible working. This means employers still have the final say on whether an
employee can work flexibly or not (though any unreasonable refusal of a request
could carry risk).
Employers are however placed firmly under the microscope and need to adhere to a
two month response time in respect of statutory flexible working requests, and in the
case of any refusals, justify why they have refused to allow an employee to work
flexibly. With employers also under pressure to promote their ESG and balance the
environmental impact of flexible working requests with its need for employees to
attend the office, the changes are likely to trigger wider commercial considerations
too.
2- Protection from harassment: proactive duty on employers to prevent sexual
harassment in the workplace
A new “proactive” duty on employers to take reasonable steps to prevent sexual
harassment is intended to tidy up apparent shortcomings with the Equality Act 2010
(as in force at the time of preparing this article) and proposed amendments to the
Equality Act 2010 are set to reintroduce employer liability for harassment of its
workers by customers or other third parties/stakeholders.
The move to “proactive” prevention will force employers to take heed, analyse the
risk of harassment occurring in the workplace, and actively make changes to try to
protect its staff. Employers will still have a defence to any claim for third party
harassment, provided they can show that they took all reasonably practicable steps
to prevent sexual harassment in the workplace by third parties.
Employers will need to give thought to formulating a clear strategy to implement (i)
any changes to the workplace to try to prevent sexual harassment, (ii) staff training
and guidance, and (iii) a clear and cogent system for reporting concerns (one which
perhaps involves a form of reporting/referral to the third party also, depending on the
nature of the business and so relevant action can be taken by employers and third
parties). Our expert team can advise you on appropriate changes your business
could make to try to actively prevent sexual harassment in the workplace (in
particular, measures to address the risk when workers are working ‘remotely’ and/or
where contact with third parties is difficult to manage) and how best to implement
those now, at the outset of the year and in readiness for the relevant changes.
Employers should ensure that any strategy or changes are well documented.
A re-written Code of Practice on Harassment (drafted by the Equality and Human
Rights Commission) is expected to follow in the coming months and is intended to
define steps employers could take to prevent workplace harassment. If employers
follow the Code and can prove they have done so, they will likely have a form of
defence that they have taken reasonable steps on prevention.
3- Protection from redundancy for women during or after protected period of pregnancy
Aptly titled the Protection from Redundancy (Pregnancy and Family Leave Bill), the
Government seeks to extend protection from redundancy to pregnant women,
beginning from the moment they have informed their employer of their pregnancy in
writing to six months after they have returned from maternity leave. Enhanced
protections will also be incorporated for employees who return to work after shared
parental and/or adoption leave. Currently, the protection only applies to the duration
of maternity leave. It offers no protection once the employee has returned to work.
There have been concerns that, in a bid to avoid the current regulations, employers
will wait until an employee returns from maternity leave to implement redundancies.
The Protection from Redundancy (Pregnancy and Family Leave Bill) is to be
discussed by the House of Commons shortly, on 3 February 2023. However, we are unlikely to see any change in actual legislation until 2024. It is one to watch.
The regulation is an example of positive discrimination and employers should be
careful to ensure they act in accordance with protections and be consistently mindful
of their obligations towards pregnant employees and parents on maternity, adoption
or shared parental leave.
4- Tightening other forms of family leave
The Fertility Treatment (Employment Rights) Bill and the Miscarriage Leave Bill are
anticipated to progress in the coming months. These are set to provide employees
the right to paid leave for fertility treatment and bereavement leave respectively.
The Carer’s Leave Bill seeks to provide employees undertaking caring
responsibilities with the right to one week’s unpaid leave per year and protection from
dismissal or detriment as a result of taking such leave. The right to one week’s
unpaid leave for carers is intended to be a “day 1” right and serves as a milestone in
the recognition of carer’s rights in the workplace. Employers should always ensure
that they are taking steps to check in on employees with caring responsibilities, given
the anxiety and stress the employee may face. The need to promote and manage
mental health in the workplace is paramount.
The Neonatal Care (Leave and Pay) Bill 2022-3 seeks to provide parents with a new
right to paid leave if their child requires neonatal care (one week’s leave for each
week their child spends in neonatal care to a maximum of 12 weeks) as well as
protection from dismissal or detriment as a result of taking such leave. The right to
leave for parents with a child who requires neonatal care is intended to be a “day 1”
right, though the relevant employee must have been employed for at least 26 weeks
for said leave to be paid leave.
5- Retained EU Law: post-Brexit reform?
The Retained EU Law (Revocation and Reform) Bill could be the catalyst for the
biggest change in the employment law landscape in the past decade. The Bill gives
the Government the power to scrap or replace retained EU laws which, if not restated
or replaced by the end of 2023, will disappear by default and cease to be law in the
UK from 1 January 2024. However, it is likely that the Government will look to extend
the deadline for implementation to 2026 to account for the changes in monarchy and
the King’s coronation later this year.
The marked silence in respect of the Government’s plans for employment law leaves
the floor open for speculation that there could be changes to laws which affect and
shape the face of UK employment law. The Bill will repeal all EU-derived regulations
unless the government legislates to keep them, either in their original form or as an
amended version. Therefore, several key pieces of legislation, such as the Working
Time Regulations 1999 (frequently, the subject of gripes), the Agency Worker
Regulations, and/or TUPE, could be removed/affected/overhauled. To the same end,
any excitement regarding the prospect of changes to employment law arising from
this Bill may be premature.
Overall, the settled and predictable meaning of a considerable body of employment
law will be wiped away and replaced with uncertainty and unpredictability which will
require years of litigation to regain.
6- Here’s a tip: “new” statutory code to regulate the fair distribution of tips
This is relevant to employers operating within the hospitality sector and proposes that
all tips, gratuities, and service charges received by an employer are equally
distributed to its workers without any deductions (these usually take the form of credit
card or third party fees). The introduction of equal distribution of tips is intended to
achieve fairness within workforces where this has posed an issue and/or less senior
workers are not being rewarded fairly.
The statutory code does not cover tips given directly to workers individually (those
tips are the property of the worker to whom they have been given). Businesses will
need to adopt clear workplace guidance and policies to address the equal distribution
of tips and try to level the playing field.
If implemented, this is a change which could impact employees who traditionally take
home a significant portion of their earnings through tips.
7- “Fire and re-hire”: statutory code to be unveiled
Per our previous update, and confirmation from the Department
for Business, Energy and Industrial Strategy (BEIS) that a statutory code on how
employers should manage dismissal and re-engagement (or “fire and re-hire”) would
be published, we anticipate the code to be forthcoming in the coming months.
The Government does not intend to ban the notion of “fire and re-hire”, but regulate
employers who, otherwise, ruthlessly engage in the practice. The statutory code is
expected to set out a process for employers to follow and will likely include a
requirement to undertake meaningful consultations.
It was suggested that, once enforced, any unreasonable failure on the part of an
employer in following the Code would allow a Tribunal to apply an uplift of up to 25%
on employee compensation.
8- Strikes
In the face of workforces returning to offices in late 2022 and post-pandemic, many
sectors such as mail, nursing and rail went on strike. On the employment law front,
this gave rise to several practical issues, such as employees being unable to travel to
their workplace. This will likely remain a developing issue in the coming weeks, and
something which employers will be keen to iron out. Please find the link here to read our most recent article on strikes.
In an effort to redress the chaos caused by the strikes, the Government announced
proposed legislation to provide for minimum service levels for fire, ambulance and rail
services. The proposed legislation is designed to enable employers in those sectors to require enough employees to work, to ensure a minimum service can run and the
ensuing impact on wider businesses (whose employees would otherwise be unable
to travel to work due to strike action) is circumvented.
The draft bill is expected in the coming weeks.
9- Data protection
The General Data Protection Regulations (GDPR) are to be replaced with a “British”
data protection system (Data Protection and Digital Information Bill).
It is currently unclear what form this Bill will take, though a further update is expected
later this year. Employers’ eyes will no doubt be peeled on this front, given its
obligations in respect of monitoring and processing its employees’ data as well as its
duties in responding to/complying with Data Subject Access Requests (which can
and often are made by employees).
10- Holiday pay: historic claims
The Supreme Court is expected to reach a determination, later this year, as to
whether an employee can claim for historic holiday pay arrears where there are gaps
of three (or more) months between the underpayment(s) and if the underpayments
can then be linked to form a series. Any decision on this front could have wide
ranging implications for employers.
If you have any questions on the above and how the changes might affect your business,
please do not hesitate to contact our specialist employment team by giving us a call or emailing us at
employment@curzongreen.co.uk.