Important employment law updates for 2023

The start of a new year is always a good time to look ahead at what is to come.

It is a time when many reflect on what has just passed and focus on changes that can, and will hopefully, be made for the better.

The same can be done with employment law, which can be a complex and ever evolving subject matter.

Legislation is constantly changing and being updated, and it is expected that 2023 will signal significant changes to employment law in the UK.

It is likely that a number of Private Members’ Bills backed by the government will eventually become law.

A Bill is a proposal for a new law, or a proposal to change an existing law, presented for debate before Parliament [1 cited 9.1.23]

A Bill can start in the Commons or the Lords and must be approved in the same form by both Houses before becoming an Act (law).

There are other important changes that we may see, which could include to the definition of a ‘worker’ [2 cited 9.1.23]

A person is legally classed as a ‘worker’ if the employer is not required to provide them with work, and they are not required to do any work. A worker currently has less legal protection than an employee.

Whistle-blowers may also be afforded greater protection. At present whistle-blowers are protected by law and should not be treated unfairly or lose their jobs if they make a protected disclosure.

Unfortunately, despite current legislation, whistle-blowers are not always given appropriate protection.

Last year a government vet who raised concerns about animal welfare and problems in the meat supply chain when she worked for the Department of Agriculture and Environment in Northern Ireland received £1.25 million and an apology after a successful constructive dismissal claim [3 cited 9.1.23]

As with the start of any year, there are some key employment law changes on the horizon in the next 12 months.

Here we take a closer look at what is to come:

 Flexible Working

Currently employees can apply for flexible working if they have worked continuously for the same employer for 26 weeks or more [4 cited 9.1.23]. At present, employees can only make one request in any 12-month period.

The government has now proposed legislation that means in the future an employee will be able to request flexible working from day one of their employment [5 cited 9.1.23]

The Employment Relations (Flexible Working) Bill 2022 - 23 will enhance the rights of employees to request to work in a way that best suits their personal circumstances.

The Bill will mean that an employee can make two requests in a 12-month period rather than one, employers will have to consult with employees before rejecting a request and the requirement for an employee to explain the impact on their employer if they switch to flexible working will be removed.

 Harassment

By law (Equality Act 2010), there are 3 types of harassment: sexual harassment,  harassment related to certain 'protected characteristics' and less favourable treatment as a result of harassment [6 cited 9.1.23]

Third-party harassment occurs when an employee is harassed by someone they interact with as part of their job e.g. customer, client or patient.

A study by the TUC found the most common form of third-party harassment experienced by young employees was verbal abuse [7 cited 9.1.23]

Of those quizzed, 85 per cent said they had experienced third-party harassment and been subjected to verbal abuse, 47 per cent had been subjected to bullying, 40 per cent had suffered a sexual assault and 26 per cent had been subjected to an incident of assault or physical violence.

Worker Protection (Amendment of Equality Act 2010) Bill 2022 – 23 will mean employers will be expected to take all reasonable steps to protect employees from such treatment.

The Bill will also compel organisations to act to protect all staff from sexual harassment. A failure to do so, could mean that in the event of any subsequent and successful legal claim, an increase of up to 25 per cent could be made to any compensation awarded to a claimant.

 Tips

What happens to tips left for an employee, especially those working in the hospitality industry, has been a long-standing and contentious issue.

Many employees working in the sector – a lot of whom are earning the National Minimum Wage or National Living Wage – rely on tipping to boost their income.

But some employers have withheld tips in a move which is now set to become illegal.

The Employment (Allocation of Tips) Bill will mean that employers will have to hand over tips, service charges and gratuities to employees.

Records will have to be kept regarding tips received and handed out to employees, and employers will need to have a written policy detailing the procedure.

The Bill will just cover tips paid directly to employers, and not cash tips which can often be left for staff.

It is a move aimed at assuring customers that any tip they leave as an appreciation of good service, will go to the member of staff it is intended for.

 Redundancy

Currently employees on maternity leave should be offered any suitable alternative vacancy in a redundancy situation.

Key proposals in the Protection from Redundancy (Pregnancy and Family Leave) Bill will [8 cited 9.1.23]:

• Make sure the redundancy protection period applies from the point that the employee informs the employer that they are pregnant.

• Increase the redundancy protection period to six months after a new mother has returned to work, with the protection period starting once maternity leave is finished.

• Reflect the extension of the redundancy protection period for those taking adoption leave and shared parental leave (but not paternity leave).

Carer’s Leave

There are many employees who have caring responsibilities outside of work, who are now set to benefit from being able to take unpaid leave.

The Carer’s Leave Bill will allow employees to take up to one week of unpaid leave each year to provide or arrange care for a dependant with a long-term care need.

It is a right that all employees will be entitled to from the first day of their employment.

It is anticipated the Bill will be passed this year, and the regulations introduced next year.

Neonatal Care

The Neonatal Care (Leave and Pay) Bill 2022-23 once passed, will introduce two new rights: neonatal care leave and statutory neonatal care pay.

An employee will have the right to neonatal leave from day one of their employment if their child spends at least one week in neonatal care.

Employees with at least 26 weeks service will be entitled to neonatal care pay during periods of neonatal care leave.

It will be available to those whose weekly earnings are at or above the lower earnings limit (currently £123 per week for 2022-23).

 Timelines for the implementation of the Bills is not confirmed.

Each Bill is due to begin its report stage by the end of next month, expected to receive royal assent this year and see any necessary secondary legislation being implemented in 2024.

All employers are expected to keep up to date with employment law updates and changes that come into effect.

It is essential, as an organisation saying it was not aware of any aspect of employment law, new or otherwise, is never a credible defence against any claim that may be made by an employee.