What are the employment law trends for 2023?

As 2023 looks set to be another interesting year for employment law, in this article, employment partner Emma Clark and trainee solicitor Imogen Dale outline the most important updates to look out for, along with their predictions of changes for the year ahead.

1. Holiday pay

a. The Government has opened a consultation on term-time/part-year workers’ holiday pay following the Supreme Court’s unanimous decision in Harpur Trust v Brazel. This may result in legislation meaning holiday leave and pay is proportionate to time spent working, which many employers consider to be the rational solution to the issue.

b. A decision is expected regarding underpayments and holiday claims in Chief Constable of the Police Service v Agnew & Ors. This case should determine the correct approach to calculating unlawful deductions and underpayments of holiday pay, including the approach to annual leave entitlement, overtime and the reference period for calculating normal pay.

2. Awareness of the effects of menopause in the workplace:

2022 saw the Women and Equalities Committee’s report in July 2022 and the Government stating they will not add menopause to the protected characteristics under the Equality Act 2010. The current trend is for many employers to introduce menopause policies and adjustments to their workplace. This is to promote wellbeing in the workforce as well as prevent potential discrimination claims from employees. The government’s response to the Committee’s report has been delayed and was expected in September 2022. For more information on menopause in the workplace, please see Emma Clark’s article here.

3. Menstrual leave during painful periods: After Spain passed a Bill in December 2022 allowing women to take menstrual leave during painful periods, there has been a rise in interest in the UK for us to adopt similar legislation. The Government has not announced any such plans, but it is important for employers to assess their current workplace policies and ensure that women and menstruating employees are supported, and their needs accommodated.

4. Restructuring: As the cost-of-living crisis deepens and the National Minimum/Living Wage dramatically increases in April, unfortunately it seems likely that employers will consider making further redundancies in an attempt to streamline workforces and reduce costs.

5. Gender-critical views: It is likely that the decisions on several cases including Mackereth v DWP and Higgs v Farmor School will be announced in 2023. The ongoing heated discussions on gender-critical beliefs are set to continue, especially as Nicola Sturgeon’s Gender Recognition Reform Bill has been blocked by the UK Government in an unprecedented intervention.

6. You won’t be surprised to read that there is likely to be further union action and challenges ahead. There will be more disruption to public services and a detrimental impact across the workforce and numerous industries, especially hospitality. Find further information about the attempted legal reforms by the government in this area and additional changes to employment law legislation here.

Predictions in this ever-changing climate are increasingly challenging to make. Employers would be wise to get ahead of the curve and implement positive changes for their staff as soon as possible. The aim should be to maintain stability and create a more harmonious workplace wherever possible.

If you are concerned about any of the above points, please contact Emma Clark and Imogen Dale.