What to expect in 2023

What should employers be watching out for in 2023? We take a look at some of the key employment law related changes on the horizon.

Revocation of EU law – weakening of employment law protections in the UK?

There are concerns that there could potentially be a radical reshaping of long-established employment rights and protections during the course of 2023.

The Retained EU Law (Revocation and Reform) Bill was published on 22 September. If passed, the effect of the Bill will be to ‘sunset’ the majority of retained EU law, which will expire on 31 December 2023 unless the Government introduces legislation to preserve it. This means that statutory instruments introduced in the UK to comply with EU law will expire, unless they are specifically retained.

The Bill could potentially affect employee rights contained within the Working Time Regulations, the Part-time Workers Regulations, the Fixed-term Employees Regulations, the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) and the Trade Union and Labour Relations (Consolidation) Act in relation to collective consultation obligations, amongst others.

In November, the Regulatory Policy Committee (RPC) published its formal opinion on the Government’s regulatory impact assessment for the Bill. The RPC red-rated the impact assessment as not fit for purpose, finding in summary that BEIS has not sufficiently considered, or sought to quantify, the full impacts of the Bill.

It remains to be seen what impact the Bill will have on UK employment rights. Any weakening of employment protections that affects trade or investment could result in sanctions against the UK. The Government had previously agreed as part of the UK Trade and Co-operation Agreement that it would not weaken or reduce the level of protection for workers below the levels in place at the end of the Brexit transition period, which was 31 December 2020.

Fire and rehire – will a Statutory Code of Practice be published this year?

In the aftermath of the dismissal by P&O Ferries of 800 employees without prior consultation, the Government announced that a new Statutory Code of Practice will be published on the use of “fire and rehire” practices by employers. The new Statutory Code of Practice will “detail how businesses must hold fair, transparent and meaningful consultations on proposed changes to employment terms” and will include practical steps that an employer must follow.

There is still no precise timetable for the publication of the draft Code. In November, in a parliamentary debate in the House of Lords, Lord Callanan, Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (BEIS) stated that the intention is to bring it forward in the “near future.”

Using agency workers during strike – were amendments to legislation lawful?

This summer, the Government introduced changes to legislation that enable businesses to supply skilled agency workers to plug staffing gaps during strike action. The changes amended legislation that previously prevented an employment business from supplying temporary workers to perform duties normally performed by a worker who is on strike or taking official industrial action.

A number of Unions issued judicial review proceedings in response. Unions are concerned that the amendments ‘undermine the right to strike’ and launched proceedings to protect that right. Arguments include that the amendments are unlawful because the Secretary of State failed to consult unions, in contravention with the Employment Agencies Act 1973, and that the regulations violate trade union rights that are protected by Article 11 of the European Convention on Human Rights. It has been announced that the High Court has granted permission for a judicial review, which is expected to be heard from late March.

New rights for employees?

In 2019, the Government had committed to the introduction of an Employment Bill, to include the introduction of a number of new rights for employees. However, the Employment Bill was not introduced in the 2019 – 21 Parliamentary session and was not referred to in the 2021 or 2022 Queen’s Speeches.

The Government has now backed a number of Private Members Bills, which may lead to the introduction of the following new rights.

A new right to neonatal care leave and pay. The Neonatal Care (Leave and Pay) Bill will allow eligible employees to take leave for a child who is receiving, or has received, neonatal care. Eligible employees will be entitled to take up to 12 weeks of paid leave, in addition to other leave entitlements such as maternity and paternity leave. The report stage of the Bill is scheduled to take place on 3 February 2023.

Extension of redundancy protection for pregnant women and new parents. Currently, a woman on maternity leave is entitled, if her role is being made redundant, to be offered alternative employment in any suitable vacancy available. This gives her priority over other employees at risk of redundancy. The Redundancy (Pregnancy and Family Leave) Bill, will give the Secretary of State the power to extend current redundancy protection to cover a longer period of time, applying during, or after, maternity leave. The Bill also adds a new provision allowing for redundancy protection during, or after, a ‘protected period of pregnancy’. Further details of the extended protection will be set out in future regulations. The report stage of the Bill is scheduled to take place on 3 February 2023.

A new right to carer’s leave. The Carers Leave Bill introduces a new and flexible entitlement of at least one week’s unpaid leave per year for employees who are providing or arranging care for a dependent with a long-term care need. Under the Bill, this will be a ‘day one’ right and employees taking carer’s leave will be protected from dismissal or suffering any detriment as a result of having taken time off. The report stage of the Bill is scheduled to take place on 3 February 2023.

Extension to the right to request flexible working. Employees will be able to request flexible working from day one of their employment and to make two requests in any 12 month period under new plans announced by the Government. The period for making a decision will be reduced from three months to two months. There is no current timescale for the introduction of these changes.

Wishing you all a merry Christmas and a happy New Year.

20 December 2022

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