Employment Legislation – What’s New For 2023

For business owners in Coventry and Warwickshire, 2023 looks set to be a positive year. Inflation rates are set to fall and interest rates are predicted to stabilise. In January, plans to create a new industrial park in Coventry, delivering a multi-million-pound boost to the local economy, were submitted to the City Council. It was recently announced that Coventry and Warwickshire Chamber of Commerce is one of three Chambers selected by the Department of Education to develop and lead the region’s Local Skills Improvement Plan (LSIP) which is aimed at creating deeper, more dynamic partnerships between employers and education providers. One of the aims of the LSIP is to ensure the provision of skills can be more responsive to local labour market needs. 

To help you plan for the upcoming year and take advantage of opportunities generated from the positive moves discussed above, our Employment Law Solicitors, based in Coventry, have provided a brief summary of upcoming employment legislation below.

Strikes (Minimum Service Levels) Bill 2022-23

Even if your business does not provide essential services, chances are that when such services go on strike, it has a negative effect on your ability to operate. The Centre for Economics and Business Research (CEBR) claims that lost working days due to strikes have cost businesses £1.4bn in the eight months to January.

The Strikes (Minimum Service Levels) Bill 2022-23 is currently at the Committee Stage in the House of Commons[1]. If it passes in its current form, it will give the Government power, via secondary legislation, to set minimum service levels for health, fire, education, transport, nuclear decommissioning, and border security services.

Once the minimum service level has been set, employers in the sectors covered by the legislation can issue employees with a ‘work notice’. This will set out which staff members have to work despite the decision to strike and the tasks they must perform. You cannot issue work notices to more employees than is ‘reasonably necessary’ and unless an agreement to the contrary is reached, you must issue the notices one week before the strike is due to commence.

You may be able to bring a court claim for any losses suffered if the trade union does not take ‘reasonable steps’ to ensure its members comply with work notices.

The Carer’s Leave Bill 2022-23

Under the Carer’s Leave Bill 2022-23, from day one of their employment, employees responsible for dependants will have the statutory right to take up to one week’s unpaid leave (or up to a week used flexibly) to provide or arrange care.

The right to take unpaid leave applies to anyone caring for a spouse, civil partner, child, parent, or other dependant who needs care because of a disability, old age, or any illness or injury likely to require at least three months of care.

The Protection from Redundancy (Pregnancy and Family Leave) Bill 

Currently, women on maternity leave and parents on adoption and shared parental leave have the right to be offered any suitable available role with their employer before being offered redundancy. If passed, the Protection from Redundancy (Pregnancy and Family Leave) Bill will extend the right to be reassigned during pregnancy (including miscarriage), maternity, and family leave for a further six months after their initial period of leave has ended.

The Protection for Whistleblowing Bill (HL) 2022-23

Currently on its second reading in the House of Lords (where the Bill originated), this Bill is aimed at increasing whistleblower protection. It will introduce the establishment of an independent ‘Office of the Whistleblower’ which would determine and enforce minimum standards for whistleblowing policies. The Bill would also create offences relating to the treatment of whistleblowers and the handling of whistleblowing cases. Most importantly, it would repeal the Public Interest Disclosure Act 1998 which currently provides the framework for whistleblower protection.

The Worker Protection (Amendment of Equality Act 2010) Bill 

Under this Bill currently passing through the Report stage in the House of Commons, employers would have an extended statutory duty to prevent the sexual harassment of their employees and workers. Employers would also be liable for harassment  committed by third parties such as customers and suppliers.

The Bill will create a duty on employers to “take all reasonable steps to prevent sexual harassment” of their employees and workers in the course of their employment. This duty would be enforced by the Equality and Human Rights Commission (EHRC). The Employment Tribunal will be empowered to provide a 25% uplift to employees’ compensation in sexual harassment cases where the employer fails to uphold this duty.

Dismissal and Re-engagement draft code of practice

BEIS has published a draft code of practice on dismissal and re-engagement. The code of practice gives guidance on best practice in circumstances where an employer needs to negotiate or impose changes to employees’ terms and conditions of employment. If an employee does not agree to the changes being imposed by the employer, resulting in the employer dismissing them, as with other codes of practice, any failure to comply with the code will be take into account by an employment tribunal and could result in an uplift in compensation of up to 25%.

Harpur Trust – Government Consultation

Following the Harpur Trust Supreme Court decision last year, which created an absurd and disproportionate entitlement to paid annual leave for part-year workers as compared with part-time workers working the same number of hours across the year, the Government has issued a consultation paper to address the anomalies arising from the judgment. It is proposed to replace the 52 week reference period which currently ignores weeks in which no remuneration is earned, with a 52 week reference period which includes weeks with no remuneration.

Flexible Working Bill

Following a consultation by BEIS, the Government is proposing to make changes to flexible working laws. It is likely that the right to request flexible working will become a day one right. Currently, employees have to have acquired 26 weeks’ service before they have the right to request flexible working. Employees will be permitted to make 2 requests in any 12 month period, whereas they are currently only allowed to make one request. Employers will be required to respond to requests within a reduced time frame of 2 months. The procedure for requesting flexible working will be simplified and less prescriptive. If the employer intends to reject the flexible working request, there will be a duty to discuss alternatives to the request to see whether a compromise can be reached. There is no change proposed to the statutory list of eight grounds upon which an application can be refused. Similarly, there is no change to the fact that employees will have a legal right to make a request for flexible working, but will not have an automatic or legal right to insist upon flexible working.

Final words

The possible 2023 legislative changes will have a significant impact on employers in certain market sectors. Although there is no guarantee that any of the above Bills will receive Royal Assent in the next 12 months, it may be wise to review your employment policies and procedures to ensure you are prepared well in advance should your duties and responsibilities as an employer change.

To find out more about our services, including Ask HR and HR Genie, please call us on 02476 231000 or email enquiries@askewslegal.coPlease note that this article is for information purposes only and does not constitute legal advice.