2023 could prove to be the year in which we see some of the biggest changes to Employment Law for a generation. With a huge number of potential amendments to current legislation on the horizon we look at the things to watch out for over the next 12 months.
Case Law
There are quite a few significant cases due to be decided later this year which are worth keeping an eye out for. Of course, our monthly newsletter and employment law updates will cover these when they happen so if you haven’t then please sign up here.
Higgs v Farmor’s School, Mackereth v DWP and Bailey v Stonewall – following the high-profile case of Forstater v CGD Europe and Taylor v Jaguar Land Rover, a number of cases concerning gender critical views are also set to be heard this year. These cases will undoubtedly help to flesh out the position and best approach where there are conflicting rights.
USDAW v Tesco – the fire and re-hire saga rumbles on in this claim.
Chief Constable of Northern Ireland v Agnew – this claim relates to holiday pay and unlawful deductions with a judgment from the Supreme Court expected early this year. An employee-friendly approach from the judges in this claim could have significant ramifications for employers in respect of a series of unlawful deductions as the Court will decide whether or not the ‘series’ is broken by a three-month (or longer) gap in the deductions being made.
The Retained EU Law (revocation And Reform) Bill
It seems like aeons ago that the United Kingdom voted to leave the European Union with Covid-19 a significant distraction from the undoubtable fall-out of this decision. Boris Johnson may say that he ‘got Brexit done’ but from an employment law perspective we are some way off this being the case.
The Retained EU Law (Revocation and Reform) Bill also referred to as the ‘Brexit Freedoms Bill’ seeks to give Government Ministers scope to be more agile in respect of changing EU law empowering them to amend and remove currently retained legislation. This is highly significant given that a vast number of some key legislation in the UK is currently derived from EU law most notably, the Maternity and Parental Leave Regulations, the Working Time Regulation and TUPE.
Importantly, at present the Bill includes a ‘sunset provision’ meaning that at the end of 2023 unless a law has been replaced or re-confirmed then it will cease to have any effect. Of course, the Bill may be subject to further discussion and scrutiny and such a clause is likely to be relaxed with the Labour party advocating a sunrise clause instead i.e. that any laws which are not amended or explicitly removed will remain.
It is not yet clear what the Government’s intentions are with regard to the areas of legislation covered by EU law and it may be that the majority of the legislation is simply retained in its current form. While I do think it is likely that most of the legislation will be largely similar, I do not think it is necessarily the case that the status quo will be retained in full.
The Employment Bill
The Employment Bill was announced via the Queen’s Speech in December 2019. Since its announcement we have had two new prime ministers, a new monarch and lived through a pandemic. Yet the bill itself has still not yet come to fruition. Instead, what we now see is a series of Private Members’ Bills, essentially, representing a fragmented version of the Employment Bill being introduced and making their way through the parliamentary process.
The most notable of these Bills are as follows:
- Proposed changes to sexual harassment legislation which will see a more proactive duty placed on employers as well as a re-introduction of an employer’s obligations and liability with respect of third parties. The rationale here is that doing so will encourage employers to adopt a more protective approach meaning that third party harassment cannot be as easily disregarded as it can currently from a legal perspective. The defence for an employer in such circumstances will remain much the same as it is now for harassment i.e. that it took all reasonably practicable steps to prevent the harassment occurring. It is important to note that training for staff (but particularly for managers on how to deal with these types of situations) can be a key part of establishing this defence;
- Increased protection for pregnant workers with regard to redundancy. Employees will be protected for, what is expected to be, six months immediately following family leave. Those protected employees will still be viable to be selected for redundancy, however, the proposed Bill sees them having priority over their colleagues in respect of any suitable alternative employment (in a similar way to women on maternity leave at the moment); and
- Changes to flexible working, not only making it a day-one right to make a request but also allowing employees to make two flexible working applications in any 12-month period. Further than this, it is proposed that the response time from an employer will be reduced from three months to two and also the Bill will seek to remove the obligation for the employee to explain the effect of the change and how the employer could deal with that.
These Bills are not likely to pass on their own and the nature of the rights included mean that if they do become law then the Government will need to introduce additional regulations to enact them. We may see some of these introduced this year and each one comes with its own various pitfalls in terms of managing your people and changing your processes.
New ACAS Code
Currently we have an ACAS code in respect of disciplinary and grievances procedures which, if an employer is shown to have unreasonably failed to follow, can see an uplift to a Tribunal award of up to 25%.
Unpublished in 2022 but expected early this year is another similar code in respect of ‘fire and rehire.’ It is suggested that Tribunals will need to take this code into account when considering the fairness of dismissals in this space and that this code will also contain the potential for an uplift to Tribunal awards in the same way.
The Employment (Allocation Of Tips) Bill
This Bill is due for its third reading in the House of Commons this month and should it be given Royal Assent will thereafter seek to set out the requirements for employers with regard to the fair allocation of tips and the consequences of if an employer fails to comply with these.
Pay Gap Reporting
Gender Pay Gap Reporting was due to be reviewed early last year but that does not appear to have materialised. During her short time in office, Liz Truss had proposed to increase the size of businesses who had to complete such a report from 250 to 500. The current Government have not yet made any comments in this respect but a review may well be on the cards.
Whatever this year brings I am sure there will be a number of challenges and obstacles for us all to overcome. When it comes to your business and your employees, why not take the strain out of managing people so that you can focus on running your business. Contact our expert team today for more advice on any of the topics discussed above, day-to-day HR and employment law support and advice, to discuss your organisations training needs or to help deal with a tricky situation. Our employment team can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it. or on 0141 473 6818.
