In this legal insight, we look at changes to employment law that are likely to come into force in Great Britain over the next couple of years, particularly as employers will need to update their staff policies and procedures in due course.
We also look at how the employment law landscape might change if the Labour Party are elected to Government at the next General Election – some of their proposed reforms would usher in radical changes to some areas of employment law.
Note, for employers in Northern Ireland that employment law in Northern Ireland is a devolved matter. The extent to which the changes discussed in this article and potential future reforms to employment law will apply in Northern Ireland will be a matter for the Northern Ireland Assembly.
1. Employment Relations (Flexible Working) Act 2023
This Act is set to introduce changes to the statutory flexible working request procedure. When it comes into force, the Act will:
(i) remove the requirement for an employee to explain what the effect of a flexible working arrangement would be on the employer or how that might be dealt with;
(ii) allow employees to make two requests within in any 12-month period;
(iii) prevent an employer from refusing a request without consulting the employee first; and
(iv) reduce the time in which an employer must decide on the request from three to two months.
This legislation has received Royal Assent but the changes outlined above are unlikely to come into force until July 2024, so that employers have time to prepare. The Government also intends to pass secondary legislation to abolish the requirement to have 26 weeks' qualifying service, so the right to request flexible working will become a 'day one' right. It is expected that the removal of the 26 weeks' qualifying period will also be removed with effect from July 2024.
In addition, ACAS is currently consulting on an updated Statutory Code of Practice for handling flexible working requests (plus non-statutory guidance). This is likely to be introduced at the same time as the Act.
2. Carer's Leave Act 2023
This Act will allow eligible employees a flexible entitlement of one week's unpaid leave per year to provide or arrange care for a dependant with a long-term care need. Eligible employees will also have protection from dismissal and/or detriment because they have taken such leave. An implementation date is yet to be announced. However, we understand that it is unlikely to be before April 2024.
3. Neonatal Care (Leave and Pay) Act 2023
This Act will provide additional support to employees who have babies requiring specialist neonatal care post-birth. Eligible parents will be able to take up to 12 weeks' paid leave in addition to other leave entitlements such as maternity and paternity leave. The amount of pay is likely to be the same as the prescribed rate of Statutory Maternity Pay. The new leave and pay entitlements are expected to come into force in April 2025, with the detail of the arrangements being set out in regulations well in advance of that date.
4. Protection from Redundancy (Pregnancy and Family Leave) Act 2023
This Act will extend the existing special redundancy protection for women on maternity leave to pregnant employees and for a period (likely to be six months) after they return to work. It is likely that protection from redundancy will also be extended to those returning from adoption leave and shared parental leave (but not paternity leave). The Government has said that regulations will be laid "in due course".
5. Paternity Leave
Following a recent Government consultation, amendments are being proposed to the current rules on paternity leave. These include flexibility as to when and how to take paternity leave, allowing for it to be taken:
(i) either in two separate blocks of one week, rather than one block of one or two weeks;
(ii) at any time within 52 weeks of birth or adoption rather than just in the first 8 weeks; and
(iii) with only 28 days' notice required before each period of leave (although the notice of entitlement will still need to be given 15 weeks before birth).
The Government has said that these changes will be implemented "in due course".
6. Worker Protection (Amendment of Equality Act 2010) Bill 2022-23
This Bill originally put an obligation on employers to:
(i) prevent harassment by third parties during the course of employment, and
(ii) take "all reasonable steps" to prevent sexual harassment at work.
However, the House of Lords has recently voted to remove (i) completely and to change (ii) so that an employer must just take "reasonable steps". Where an employer has failed to comply, the Tribunal may uplift any compensation by up to 25%.
The Labour Party has suggested that it may revisit this if it is elected to Government. However, the provisions are currently expected to come into force around a year after the legislation is passed.
The Equality & Human Rights Commission has published technical guidance on sexual harassment and harassment at work. It is expected that this will become a Statutory Code of Practice in due course, so it would be prudent to refer to this guidance when reviewing or formulating internal policies.
7. Workers (Predictable Terms and Conditions) Bill 2022-23
This Bill sets out a right for eligible workers and agency workers to request a more predictable working pattern twice a year. It's expected that the right will only apply to those with at least 26 weeks' service, and requests can be refused by employers on statutory grounds. The legislation would make it automatically unfair to dismiss a worker for making such a request or for bringing proceedings to enforce it. The Bill is still making its way through Parliament so timescales are unclear.
8. Non-compete restrictive covenants
More broadly, the Government intends to introduce new legislation to restrict the duration of non-compete restrictive covenants to three months only. Such legislation is to be introduced, "when parliamentary time allows." So, no immediate action for employers but one to keep on the radar.
9. Economic Crime & Corporate Transparency Bill 2022
The Government is looking to introduce a 'failure to prevent fraud' offence. Whilst the timescale is currently unclear, this would be a criminal offence which could leave a guilty employer with an unlimited fine. The Government has confirmed that guidance will be published in due course and ahead of enactment. Further information can be found here: Employers' new criminal liability for fraud - TLT LLP
10. Labour Party proposals
The next general election is currently due in early 2025. If the current prediction that the Labour government will storm through the polls holds true, Keir Starmer may undo or at least revisit, some of these changes.
Indeed, the Labour Party's 'Employment Rights Green Paper: A new deal for working people' published in 2021 proposes a whole host of new employment laws within a new Labour Government's first 100 days.
Proposals include removing qualifying periods of service for claims such as unfair dismissal, extending time limits for bringing claims in the Tribunal and possibly removing the current caps on compensation in Tribunal claims. Other proposed reforms include banning zero-hour contracts, strengthening the rights of trade unions and bringing into law concepts such as 'the right to disconnect.' If Labour are voted in and assuming its package of proposed reforms are implemented, this could be the biggest shakeup in employment law that we've seen in many years.
Contributors: Emily Andrews and Victoria Wenn
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.