Following another busy year of employment law developments in the U.K., we look to 2023 and the legislative changes employers might expect to see.
There are several bills currently passing through parliament which, if passed into law, would see the enhancement of employee rights. The most notable of these include:
1. Neonatal Care (Leave and Pay) Bill
This would entitle both parents to take up to 12 weeks’ paid leave in instances where the baby requires specialist neonatal care in hospital. This leave would be available to all individuals who have been employed for at least 26 weeks and would be in addition to any maternity/paternity leave entitlements.
2. Carer’s Leave Bill
The Carer’s Leave Bill would introduce a right to one week’s unpaid leave per year for employees who are providing or arranging care, with the leave intended to be taken flexibly to suit individuals’ caring needs. This would be a day one right and employees would not be required to provide evidence of what the leave would be used for.
3. Employment (Allocation of Tips) Bill
This bill has been long-awaited and seeks to make it unlawful for businesses to withhold tips from employees and to introduce a new statutory Code of Practice on their distribution. It would convey several new rights to workers, including the right to request information about an employer’s tipping record and the ability to bring claims for failure to comply with the legislation. In cases where the regulations have been breached, tribunals would have the power to order the offending employer to pay compensation of up to £5,000—approximately $6,035—to the complainant.
4. Protection from Redundancy (Pregnancy and Family Leave) Bill
This would give the secretary of state the power to extend protections against redundancy currently offered to women on maternity leave, to cover a longer period during pregnancy and after maternity leave. The government previously indicated this would cover the period from when an employee first notifies her employer that she is pregnant, until six months after her return to work. In addition, the equivalent protections for those on adoption or shared parental leave would also be expanded.
5. Employment Relations (Flexible Working) Bill
Widely publicized in recent weeks, the Employment Relations Bill would make the right to request flexible working a day one right. It would also provide greater transparency regarding the denial of requests for flexible working, with employers required to consult with employees before rejecting their flexible working request. The number of requests employees are allowed to make within a 12-month period would also be increased from one to two.
6. Worker Protection (Amendment of Equality Act 2010) Bill
This bill seeks to increase protections for workers against sexual harassment by imposing a duty on organizations to prevent sexual harassment. If passed into law, employers would have an obligation to take all reasonable steps to eliminate sexual harassment in the workplace. The duty would be enforceable by the Equality and Human Rights Commission and tribunals would be able to uplift awards by up to 25 percent in sexual harassment claims where the employer was in breach of their preventative duty. In addition, the bill reinstates employer liability for harassment by third parties such as customers and does so with a less complex legal test.
All six of these bills are currently at the committee stage and are due to reach the report stage in the first quarter of 2023.
Another area in which we may see employees’ rights strengthened in 2023 is health and disability. The Department for Work and Pensions published a Green Paper in 2021 setting out proposals to help those with disabilities and health conditions live more independently. One of the key aims is to reduce the disability employment gap, and we may see a White Paper setting out the strategy over the course of next year.
Industrial Action and Brexit
Other areas which might be subject to legislative change in 2023 include industrial relations, with the Transport Strikes (Minimum Service Levels) Bill due to be debated in its second reading in 2023. If passed, the bill would require that a minimum level of transport services is maintained while industrial action is taking place. It seeks to remove trade unions’ immunity from liability if they fail to ensure that the staff needed to provide this minimum service level do not participate in strike action. This could drastically impact the effect of strikes.
As the legislative landscape develops in the wake of Brexit, we continue to see changes to employment related rights filtering through. Our recent Insight article explored the potential impact of the Retained EU Law (Revocation and Reform) Bill on employment law. In spite of being red-rated by the Regulatory Policy Committee in its impact assessment as not fit for purpose, the bill continues to pass through parliament and we may expect to see it become law in 2023.
Additionally, the Bill of Rights introduced in June 2022 is set to replace the Human Rights Act 1998 and would allow the UK courts to diverge from the case law of the European Court of Human Rights. Michelle Donelan, secretary of state for Digital, Culture, Media and Sport, also announced on Oct. 3, 2022, that there are plans to replace the General Data Protection Regulation (GDPR) with a new British data protection system as the current EU GDPR is “limiting the potential of our business.” However, there are reports that both the Bill of Rights and new British data protection legislation plans may be dropped by the government, so watch this space.
Other areas of potential legislative development include:
Restrictive covenants: Last year, the government consulted on whether restrictive covenants, also known as noncompete clauses, should be unenforceable or enforceable only when compensation is provided during the term of the clause. The consultation closed on Feb. 26, 2021, but no further action is currently scheduled. It is possible that we may see this back on the agenda in the new year but it will, as always, depend on parliamentary time and the government’s capacity to focus on such issues in the face of current challenges. Similarly, we await news of further action in respect of the government’s 2019 consultation on confidentiality clauses and nondisclosure agreements. Draft legislation in this regard is still awaited and we may see it introduced in 2023 if parliamentary time allows.
Future of work review: Matt Warman, member of parliament, led a review into the Future of Work during the spring and summer 2022. The first phase was a high-level assessment of the key strategic issues. The report recommended that the government consider four areas in detail: artificial intelligence and automation; skills; place and flexibility; and workers’ rights. Phase two is anticipated in the new year, with the focus expected to be a more detailed assessment of these four areas.
“Fire and rehire”: Finally, following mounting criticism of dismissal and re-engagement practices during the COVID-19 pandemic, (otherwise known as “fire and rehire” tactics), the U.K. Department for Business, Energy & Industrial Strategy’s publication of a draft statutory code of practice to address the practice of firing and rehiring is still anticipated and 2023 may be the year this comes to fruition.
Even a few of these legislative developments could change the employment law landscape significantly over the course of the next year.
Helena Rozman is an attorney with Dentons in the U.K. Alison Weatherhead is an attorney with Dentons in Glasgow, Scotland, U.K. © 2023 Dentons. All rights reserved. Reposted with permission of Lexology.