Employment law 2023: the legislation to watch out for

In 2023, rather than new employment legislation coming from government, changes seem more likely to arise as a result of private members’ bills which have government support. The one exception is the Strikes (Minimum Service Levels) Bill and the Transport Strikes (Minimum Service Levels) Bill. The latter, having recently received its First Reading, seems to have now been overtaken by a wider bill which would require workers in the transport, health, fire and ambulance and education sectors to work during strike action, which would allow an employer to deliver a minimum service. These are controversial measures, with challenges expected by the unions.

The government’s proposals and the bills are intended to meet a key objective: remove barriers for specific parts of the workforce, thereby improving career progression.

What to look out for and what does it mean for business?

• The Carers’ Leave Bill will give those responsible for dependants the right to up to one week’s unpaid leave (or up to a week used flexibly). This will be a day-one right. These new rights, alongside the changes to the flexible working regime, will add to existing entitlements including the right to emergency time off. Flexible working polices, particularly those which reflect the current statutory regime, will need to be revisited. In addition, an organisation’s flexible working practices and managers will need to be updated and briefed on the new obligations. Also in this area, the Neonatal Care (Leave and Pay) Bill would introduce another day-one right, for each parent to take up to 12 weeks’ paid leave to care for a premature or newborn baby in need of neonatal care. This new right is likely to require either a stand-alone policy or amendments to existing family leave/time off policies.
• The Protection from Redundancy (Pregnancy and Family Leave) Bill will change existing arrangements. Employers already find the family leave and right to return to work rights challenging. This bill will extend the right to be redeployed during pregnancy (including miscarriage), maternity and family leave for another 6 months after that leave where an employee’s role becomes redundant during that period. These are important provisions that will need to be managed carefully during an employee’s family or maternity leave and as well as in the period following their return and when restructuring or reduction in force exercises are being considered.
• A private member’s bill (from the House of Lords) on whistleblowing, the Protection for Whistleblowing Bill proposes changes to and the repeal of the current framework in the Public Interest Disclosure Act 1998. Importantly, it will introduce broader protection and a bigger range of penalties. This bill would need employers to make significant changes to whistleblowing and speak-up polices and processes. The bill would create a new body – the Office of the Whistleblower – which would be given investigation powers and able to order redress. All of this ought to lead organisations to revamping and strengthening their approach to whistleblowing and those who disclose wrongdoing.

History repeats itself

Proposed amendments to the Equality Act, to address harassment in the workplace, will reintroduce old rights which were repealed some years ago. The Worker Protection (Amendment of Equality Act 2010) Bill will extend employers’ duties to protect against sexual harassment and reintroduce protection (and employer’s responsibility and thus legal liability) for third-party harassment. Key features of the bill include:

• The creation of a statutory duty requiring an employer to prevent sexual harassment of employees and workers.
• Where sexual harassment occurs, as well as enforcement by the Equality and Human Rights Commission, an employment tribunal will be entitled to increase compensation in an individual harassment case by up to 25%.
• It will also make the employer liable for the harassment committed by third parties, e.g. customers, service users and clients, and in an education setting (such as students). This third-party liability applies to all forms of unlawful harassment, including racial harassment and offensive conduct based on age or disability.

These are duties to prevent, which means having a policy won’t be enough. So, in addition to amending dignity at work policies, organisations must make clear what is unacceptable, enforce those standards and be able to demonstrate that action is taken to tackle these issues when they arise.

Finally, the Retained EU Law (Revocation and Reform) Bill, also called the Brexit Freedoms’ Bill, could impact a range of employment regulation from TUPE, Working Time, fixed-term, part-time and agency worker rights as well as equal pay if enacted. Although the detailed provisions remain to be seen, in principle it would repeal EU-derived laws and retained laws which have been brought into effect by secondary legislation, with effect from December 2023 – unless specific provision is made to retain by restating the law, amending or delaying repeal of a specific piece of EU retained law. This is the most controversial of all, and is facing significant opposition so, if it does progress, it is very likely to be subject to significant amendment.

Find out more about the employment law trends expected in the year ahead here.

If you have any questions on the Bills mentioned above and how they might impact your business, please contact Audrey Williams.