We look ahead to give an overview of some of the key employment law reforms and developments which are likely to impact businesses in the food industry in 2023, and beyond.

New employment rights

A brief summary of the key new rights in employment law:

  • Redundancy and pregnancy – the Protection from Redundancy (Pregnancy and Family Leave) Bill will extend the existing protection from redundancy, which currently applies to those on maternity leave to those on adoption and shared parental leave. The 'protected period of pregnancy' will be extended from when the employer is informed of the pregnancy, and will continue to apply for a period of six months upon returning from the relevant leave.
  • Carer's leave – the Carer's Leave Bill will entitle employees, from the first day of employment, to take one week's unpaid leave in any 12-month period to provide, or arrange care for a dependent with a "long term care need". A long term care need will include:
    • someone with an illness or injury that requires, or is likely to require, care for more than three months;
    • someone with a disability within the meaning of the Equality Act 2010; or
    • someone who requires care for reasons connected to their old age.
  • Neonatal care – the Neonatal Care (Leave and Pay) Bill will enable parents with a responsibility for a child receiving neonatal care to take up to 12 weeks' additional paid leave. Employees will also be protected from dismissal or detriment if they take this leave. The right to leave will apply from the first day of employment, although at least 26 weeks' of continuous service will be required for the leave to be paid at the usual statutory rate.
  • Flexible working – the Employment Relations (Flexible Working) Bill is set to enhance employees' rights to request flexible working. It will introduce the following measures:
    • employees will be able to make two requests (rather than just one) in any 12-month period;
    • employers will be required to consult with employees before rejecting any request;
    • employees will not be required to set out how the employer might deal with the effects of their request anymore; and
    • employers will be required to respond to a request within two months, rather than three.

The current statutory reasons for rejecting a flexible working request will remain unchanged. The changes do not include a 'day one' right to request flexible working as was originally anticipated. However, it has been confirmed by the Government that it will introduce this right via secondary legislation.

  • Tips – the Employment (Allocation of Tips) Bill will make it unlawful for businesses to withhold any qualifying tips, gratuity and service charges. Companies and owners in the restaurant and catering industry should review their current tip, gratuity and service charge practice and consider making changes if necessary to ensure that tips are distributed fairly between workers. A new statutory Code of Practice is also anticipated, and this will provide more detailed advice on how tips should be distributed amongst workers.
  • Harassment – the Worker Protection (Amendment of Equality Act 2010) Bill will introduce a duty on employers to take reasonable steps to prevent sexual harassment of employees. Alongside this, employers will be liable for harassment of employees by third parties (e.g. clients/customers), unless they have taken all reasonably practicable steps to prevent the sexual harassment. This will be relevant to businesses in the food sector that are customer and/or client facing. If a tribunal finds the employer is in breach of this new duty, it can award an uplift to compensation of up to 25%.

Watch this space for when the above changes make it into law, which is likely to be later this year.

Repeal of retained EU law

One particularly significant development is the Retained EU Law (Revocation and Reform) Bill. This will automatically repeal any retained EU law so that it expires on 31 December 2023, unless express legislation is introduced to retain it. This potentially includes a raft of substantial employment regulations relating to working time, TUPE and agency workers.

Latest reports suggest that it is likely the 2023 deadline will be relaxed, but the current backstop date under the Bill is 23 June 2026. In any event, over the coming years, we should expect to see government proposals and consultations on laws to amend or replace EU-derived law.

A more detailed overview of the Bill's impact is available here.

'Fire and rehire' tactics

The new draft statutory Code of Practice on dismissal and re-engagement was published on Tuesday 24 January 2023, to address controversial 'fire and rehire' tactics. This Code sets out the steps that an employer will be expected to follow when considering dismissing and re-engaging employees in order to effect a change in contractual terms. It makes clear that employers should not use threats of dismissal as a negotiating tactic. Once you know that an employee does not wish to engage with the proposed terms on offer, businesses in the food sector are advised to consider a different strategy and plan in light of the potentially serious consequences for employees.

A failure by an employer to follow the Code may result in a tribunal awarding a claimant an uplift of up to 25% on top of any compensation. Consultation on the draft Code will close on 18 April 2023, with the final version expected later this year.

Data protection

The Information Commissioner's Office (ICO) called for views in August 2021 to help shape its new data protection and employment practices guidance, which will replace the ICO's existing Employment Practices Code. The ICO has confirmed that this will be replaced with a web-based hub of guidance covering various employment topics and issues.

The ICO will be releasing its draft guidance in stages then add to the resource over time. The first two drafts, both published in October 2022, relate to: (1) monitoring workers at work (this consultation closes on 20 January 2023); and (2) handling information about workers' health (this consultation closes on 26 January 2023). Going forward, we can expect further draft guidance from the ICO to be published for consultation.

In addition, there are proposals to replace UK GDPR with a new data protection framework. The Data Protection and Digital Information Bill was introduced in July 2022, with the aim of updating and simplifying the UK's current data protection framework. This Bill is currently paused, however, and it is not yet clear when (or if) it will be progressed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.