Employment law developments on the horizon in 2023 

With many employment law changes on the horizon, 2023 has the possibility to be a busy year. For example, the legislative agenda includes potential post-Brexit reforms for EU-derived laws, new protective laws for employers impacted by strikes, and various private members’ bills providing new employment rights.

This article from Myerson’s Employment Law Team focuses on the most important developments in employment legislation that should be coming to fruition in 2023. The laws noted in this article are yet to be passed; however, they are backed by the government and are advancing through the House of Commons and House of Lords.

Retained EU Law (Revocation and Reform) Bill

As the UK has withdrawn from the EU, the terms attached to that withdrawal meant that many EU-based laws in position on or before the 31st of December 2020 were kept in place.

However, the Retained EU Law (Revocation and Reform) Bill, brought to UK Parliament on the 22nd of September 2022, states that all preserved laws – secondary and direct – will expire after the ‘sunset date’ of the 31st of December 2023, unless an express choice is made to retain a law before such date.

The UK government has yet to hint at what laws may be retained or modified, so it is still unclear if any changes will be made. However, it’s possible that we could see this impact on various EU-derived employment rights, such as working time rights, TUPE transfers, agency employee rights, and the rights of part-time and fixed-term workers.

Important dates: The Retained EU Law (Revocation and Reform) Bill is set to have its committee stage in the House of Lords on the 23rd of February 2023.

Strikes (Minimum Service Levels) Bill 

The Strikes (Minimum Service Levels) Bill has already passed through the House of Commons and is now being reviewed by the House of Lords. Should this bill be passed, the government would be permitted to bring in new rules setting ‘minimum service levels’ during strikes in ‘relevant services’ in sectors, such as health, transportation, education, fire and rescue, control of the border, nuclear decommissioning, and radioactive waste management. The government have clarified that the Strikes Bill aims to minimise the disturbance to the public because of any service strike. 

There have been no hints of the exact details of this new law; however, the following elements have been noted:

Work notices – In cases where a minimum service regulation applies, an employer may present a striking union with a ‘work notice’ that highlights the employees they still need, and the tasks required throughout the strike. The employer must first consult with the union and only identify essential workers within the notice. 

Loss of union immunity – Should the union fail to take reasonable steps to comply with the filed work notice, it will surrender its immunity from strict liability, meaning the union may face legal action from the employer. 

Loss of unfair dismissal protection – Any union member that has been recognised in the work notice, who participates in the strike, in breach of the notice, will forfeit their automatic protection from dismissal. 

Important dates – The Strikes (Minimum Service Levels) Bill is set to have its second reading in the House of Lords on the 21st of February 2023. 

Protection from Redundancy (Pregnancy and Family Leave) Bill 2022-23

As it stands, during a redundancy process, any employee on maternity, shared parental, or adoption leave has an automatic right to be presented with any viable vacancies ahead of others. The Protection from Redundancy Bill allows new laws to be introduced that would increase the level of this special protection to include a period after the relevant period of leave has finished. The explanatory notes to the bill provide just one example of the impact of the changes on miscarriages. That is, by extending the protected period after a protected period of pregnancy, a woman who has suffered a miscarriage before letting her employer know of her pregnancy would still benefit from these special redundancy protections. 

Important dates – The Protection from Redundancy (Pregnancy and Family Leave) Bill is set to have its second reading in the House of Lords on the 3rd of March 2023. 

Neonatal Care (Leave and Pay) Bill

The Neonatal Care (Leave and Pay) Bill supports the right of parents to have up to 12 weeks of paid neonatal leave should their child receive or have received neonatal care. Should parents meet the eligibility criteria, this form of leave can be taken from their first day of employment. The Neonatal Care Bill will provide a statutory pay rate if the employee has served at least 26 weeks. Employees on neonatal leave will receive the same protections from dismissal as employees on family-related leave, such as maternity or shared-parental leave. 

Important dates – The Neonatal Care (Leave and Pay) Bill is set to have its second reading in the House of Lords in February 2023. 

Carer’s Leave Bill

The Carers Bill introduces a new flexible entitlement for one week’s leave, unpaid, per year for employees that provide or arrange care for a dependant with long-term care requirements. The entitlement will be available from the first day of the individual’s employment and can be taken when they please, as either half or full days.

Important dates – The Carer’s Leave Bill is set to have its second reading in the House of Lords on the 3rd of March 2023. 

The Employment (Allocation of Tips) Bill 

The Employment (Allocation of Tips) Bill guarantees that all tips are allocated to employees, meaning it will be illegal for businesses to keep tips, gratuities, or service charges for themselves. The new law passed its second reading on the 15th of July 2022. The changes would include a new statutory Code of Practice to provide companies and their employees with advice on how the tips acquired should be distributed. Workers would be granted a new right to ask for more information regarding their employers’ tipping records, allowing them to challenge the practices actioned by their employers via employment tribunal claims. 

Important dates – The Employment (Allocation of Tips) Bill is set to have its second reading in the House of Lords on the 3rd of March 2023. 

Employment Relations (Flexible Working) Bill

The Employment Relations (Flexible Working) Bill would change the current statutory regime for formal flexible working requests to make them a day-one right for workers so that requests can be submitted twice in any 12 months. The changes would also mean that employees wouldn’t have to explain their request for leave or address the impact it may have on their employer. Additionally, employers would have to consult with their employees within a two-month decision period before rejecting a request.

Important dates – The Employment Relations (Flexible Working) Bill is set to have its report stage and third reading in the House of Commons on the 24th of February 2023. 

Worker Protection (Amendment of Equality Act 2010) Bill

The Worker Protection (Amendment of Equality Act 2010) Bill is a new law that would:

Place liability on employers for the harassment of their workers via third parties.

Place employers on active duty to protect against sexual harassment. 

Allow employment tribunals to increase compensation for workers who have faced sexual misconduct by up to 25%. 

Employers would be able to avoid liability should they be able to provide evidence of the reasonable steps they took to prevent harassment in the workplace. 

Important dates – The Worker Protection (Amendment of Equality Act 2010) Bill has had its first reading in the House of Lords, and the date for its second reading is awaited.