With 2022 now over, we look ahead to the key developments that look set to shape the UK employment legal landscape in 2023 and beyond.
New employment rights
Whilst the Government's promised Employment Bill now looks unlikely to materialise, in 2022 the Government instead announced that it intended to support a raft of private members' bills to implement the changes promised in the, now defunct, Employment Bill. 2023 therefore looks set to be a busy year on the legislative front, with a suite of six Government-backed private members' bills currently making their way through Parliament and looking likely to enter the statute books during the course of 2023/2024. These include:
- Protection from Redundancy (Pregnancy and Family Leave) Bill 2022-23: once passed, this Bill will give the Secretary of State power to introduce regulations to extend the existing redundancy protections available to women on maternity leave, so that the same protections are also available to cover a woman's pregnancy and for a six month period after returning to work. The same enhanced protections will also be available to those employees on adoption or shared parental leave. You can track the progress of the bill here.
- Worker Protection (Amendment of Equality Act 2010) Bill 2022-23: once passed, this Bill will (i) place an obligation on employers to take reasonable steps to prevent employees from suffering harassment in the course of their employment from third parties (such as customers or clients); and (ii) create a new duty on employers to take all reasonable steps to prevent sexual harassment of employees in the course of their employment. If the latter duty is breached, an uplift of up to 25% of the compensation awarded in respect of the sexual harassment claim can be awarded. You can track the progress of the bill here.
- Employment Relations (Flexible Working) Bill 2022-23: once passed, this Bill will enhance employees' rights to request flexible working by (i) extending the number of flexible working requests an employee can make during a 12-month period from one to two; and (ii) require an employer to consult with an employee before refusing a flexible working request. You can track the progress of the bill here.
- Employment (Allocation of Tips) Bill 2022-23: once passed, this Bill will create a legal obligation on employers to allocate all qualifying tips, service charges and gratuities fairly between employees. Employers will also be required to implement a written policy setting out how it allocates qualifying tips amongst its employees and to keep, and share, if requested, records of any qualifying tips received and allocated between employees. However, the Bill will only apply to tips an employer receives or exercises control or significant influence over – the Bill will not catch tips paid directly to workers in cash. You can track the progress of the bill here.
- Neonatal Care (Leave and Pay) Bill 2022-23: once passed, this Bill will give parents of a child who is receiving, or has received, neonatal care a statutory entitlement to a minimum of one week's neonatal care leave which can be taken up to 68 weeks from the child's date of birth. This will be a day one right available to all employees irrespective of their length of service. The Bill will also provide employees with protection from dismissal or detriment due to having taken the leave. In addition, employees with at least 26 weeks' service, will be entitled to be paid for the neonatal care leave at the prescribed rate. You can track the progress of the bill here.
- Carer's Leave Bill 2022-23: once passed, this Bill will give the Secretary of State power to create new regulations setting out an employee's right to carer's leave. Eligible employees will be entitled to unpaid carer's leave of at least one week within a 12-month period for caring for a dependent, such as a spouse, civil partner, child or parent, who has long-term care needs. Like neonatal care leave, the right to carer's leave will be a day one right and will provide protection from dismissal or detriment as a result of taking the leave. The Bill is expected to be passed in 2023, with the Regulations following in 2024. You can track the progress of the bill here.
Although the exact timetable for implementation of the Bills above is unknown, at the time of writing, each Bill is scheduled to begin its report stage by the end of February 2023. It is therefore anticipated that the Bills will likely receive Royal Assent in 2023, with any secondary legislation required to implement the provisions following in 2024.
'Fire and re-hire' practices
It is anticipated that a new statutory Code of Practice on the use of 'fire and re-hire' practices (which was originally announced in March 2022 in the wake of the mass redundancies at P&O Ferries) will be published in 2023. Although the exact timescale for its publication is currently unknown, Lord Callanan confirmed in a House of Lords debate in November 2022 that the new code would be published 'in the near future'. Once in place, the new Code will require businesses to hold fair, transparent and meaningful consultations with employees with respect to proposed changes to their terms of employment. Courts and Employment Tribunals will also be required to have regard to the Code, and will be able to award an uplift of up to 25% in the event that an employer has unreasonably failed to follow the Code.
Consideration of fire and re-hire practices could also enter the courtroom again in 2023, after the Supreme Court, on 23 December 2022, granted permission for USDAW to challenge the Court of Appeal's decision in USDAW v Tesco Stores Ltd, in which it over-turned a High Court injunction preventing Tesco from dismissing warehouse staff and then re-employing them on a lower rate of pay. The timing of the appeal is currently unknown.
Following a turbulent year of strike action, in October 2022, the Government introduced new legislation in the form of the Transport Strikes (Minimum Service Levels) Bill 2022-23, which will continue to make its way through Parliament in 2023 (it is currently awaiting its second reading). If passed, the Bill will provide for minimum service levels for transport services affected by strike action by trade unions. You can track the progress of this bill here.
In the courtroom, the High Court has recently granted permission for the TUC (on behalf of 11 unions), Unison and NASUWT to launch a judicial review challenging the Conduct of Employment Agency and Employment Businesses (Amendment) Regulations. These Regulations came into force in July 2022 and allow employers to engage agency workers to cover for those employees who are taking part in industrial action. The Unions are challenging the Regulations on the basis that: (i) the Government failed to consult the unions prior to introducing the Regulations; and (ii) the regulations breach the fundamental trade union rights guaranteed under Article 11 of the European Convention on Human Rights. The hearing is expected to take place in March 2023.
Whatever the outcome of the hearing, with more strikes planned for 2023, the rights of workers during industrial action looks set to remain a key area of debate throughout 2023.
Retained EU Law
In 2022, the Government introduced to Parliament the Retained EU Law (Revocation and Reform Bill) 2022-23, which, under its sunset provision, provides that all EU-derived secondary and retained direct EU legislation will expire at the end of 2023 unless it is expressly retained. It also brings to an end the supremacy of EU Law paving the way for domestic Courts and Tribunals to depart from existing EU-derived domestic case law.
Little is known about which EU-derived laws the Government intends to retain, and there are significant concerns that a number of important employment-related protections, such as the Working Time Regulations 1998, the Agency Worker Regulations 2010, and the TUPE Regulations 2006, amongst others, could fall away at the end of the year unless expressly preserved by the Government. Only time will tell whether the Government intends to keep intact these key employment-related regulations, but one thing is for sure – this Bill remains one to watch in 2023. You can track the progress of the bill here.
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This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.