What can we expect in employment law in 2023?

Due to the pandemic the last 2 years have been relatively quiet in the world of employment law with not many changes.

However, 2023 (and beyond) is looking to be a more significant year in employment law.

In this article, we look at what we could expect in the forthcoming year and how you should prepare.

The Retained EU Law (Revocation and Reform) Bill

This could have the biggest impact in 2023 (and 2024). Essentially, this bill could revoke (get rid of) or reform (make changes to) the remaining EU law as of the deadline date of 31st December 2023. However, the Government may also choose to retain the EU law and make it into the UK domestic law.

This could likely affect holiday pay, TUPE, the rights of agency workers, part time and fixed term workers and general employment rights under the Working Time Regulations.

There is nothing that employers can do for now except to watch and wait.

Changes to employee’s rights to request flexible working

The current position is that an employee must have worked for their employer for 26 weeks before they can make a statutory flexible working request, a request can only be made once per year and the employer must notify the outcome within a three month decision period.

The government has confirmed its intention to introduce changes to the right to request flexible working.

If amended via the Employment Relations (Flexible Working) Bill the proposed changes will be:

1. The right to request flexible working from day one of employment (it’s currently 26 weeks).
2. The right to make two requests in a 12-month period (as opposed to one, currently).
3. Employers having to consult with their employees, as a means of exploring the available options, before rejecting a flexible working request.
4. Employers being required to respond to requests within two months, down from three.
5. Removal of the employee’s requirement to consider the impact on the employer and how this may be mitigated.

If changed, employers will need to be aware of their new obligations and the deadlines, and make amendments to their Flexible Working Policy/Staff Handbook.

Protection from Redundancy (Pregnancy and Family Leave) Bill

This bill aims to extend the redundancy protection given to pregnant employees. Currently employees who are on maternity leave are given greater protection from redundancy, in that they should be given priority for any suitable alternative roles over employees who are not on maternity.

If this bill becomes law, it is proposed that employees will gain this redundancy protection from the date they announce their pregnancy, until 18 months following the date the maternity leave starts. This includes the 12 months on maternity leave (if they choose to take the full 12 months, plus 6 months following their return.

It is likely to also cover adoption leave and shared parental leave.

Employers who are considering redundancies in 2023 will need to be aware of this if they have affected staff on maternity, adoption or shared parental leave.

Neonatal Care (Leave and Pay) Bill

Details are still to be confirmed, but this Bill will provide that employees will receive up to 12 weeks of statutory leave and pay (subject to qualifying criteria) for those whose child is admitted to neonatal care for at least 7 days.

Carers Leave Bill

Again, the details are still to be confirmed, but this bill aims to introduce a statutory right to 1 week’s unpaid leave per year for employees with caring responsibilities for family members or friends. The leave would be intended to be taken flexibly to suit individuals’ caring needs.

This will be a day 1 right and employees will be protected from dismissal or detriment due to taking this leave from the start of their employment.

Many employers will have employees who are in carers roles. Such employers will need to be aware of this.

Increase in Statutory Pay Rates

The Government has announced the increases to the statutory rates in 2023.

Below is the statutory pay increase with effect from 1^st April 2023:

Statutory maternity, paternity, adoption and shared parental leave pay will increase to £172.48 per week from 2^nd April 2023.

Statutory Sick Pay will increase to £109.40 per week from £99.35. This increase is expected to occur on 6 April 2023. 

To be entitled to the above statutory payments, employees’ average earnings must be equal to or more than the lower earnings limit, which will remain at £123 per week.

Employment (Allocation of Tips) Bill

This Bill 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 to the complainant.

This will particularly affect employers in the hospitality industry.

Worker Protection (Amendment of Equality Act 2010) Bill

This Bill seeks to increase protections for workers against sexual harassment by imposing a duty on organisations 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% 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.

Additional bank holiday (again!)

Finally, to remind you that there will be (yet another) additional bank holiday in 2023 due to the Coronation of King Charles III. The additional bank holiday will be on 8 May 2023.

As with the additional bank holidays in 2022, employers will need to check the wording in their contracts of employment. If employers gave the additional bank holidays in 2022 as paid time off, they do not necessarily need to do the same in 2023.

HR Support and Advice

If you struggled to keep on top of employment law or just the day-to-day management of your staff, Hill HR would be happy to help you during 2023.

Please Contact us for a no-obligation chat.