Employment Newsletter - Edition 26

21st February 2023

Employment Newsletter - Edition 26

Focus On? What to expect in 2023

In this issue, we will take a look at what you can expect from 2023, including anticipated legislation and the predicted key themes, as follows:

  • The Cost-of-Living Crisis
  • Flexible Working
  • Protection from Redundancy
  • Duty to Prevent Sexual Harassment
  • Leave for Neonatal Care and Unpaid Carers
  • Repealing Legislation
  • Additional Bank Holiday

Cost of Living Crisis

The cost-of-living crisis is having far-reaching effects for both employees and employers and is likely to continue to do so throughout 2023. According to the Office of National Statistics, in September – November 2022 wages rose by 6.4% but due to inflation, average pay actually fell. It is likely that employers will continue to be met with requests for pay increases from employees who are struggling to meet their personal financial commitments whilst employers will have to balance this against rising overheads.

In light of the cost-of-living crisis, in 2022 the Government announced the increase of the National Minimum Wage, National Living Wage and other statutory payments which is due to come into force on 1 April 2023. The HR Newsflash that was circulated in December 2022 specifies the new rates and it is important that you are prepared for these changes and processes are in place in advance of this date to ensure workers are paid the correct rates of pay.

Flexible Working

On 5 December 2022 the Government confirmed their intention to take forward the Employment Relations (Flexible Working) Bill. This legislation would make the significant change of enabling flexible working to be a day one right and removing the requirement for employees to have 26 weeks of employment to qualify to make a request. It will also require employers to consult with employees if they are considering rejecting a request.

Further, it would permit employees to make two flexible working requests in any 12-month period instead of one. It would also reduce the period in which an employer must respond to a request from three months to two months. Finally, it would remove the requirement for employees to specify as part of their request the effect that this would have and how the employer might deal with such a request.

Protection from Redundancy

The Government has confirmed their backing of the Protection from Redundancy (Pregnancy and Family Leave) Bill which will increase the protections for workers on maternity leave, shared parental leave or adoption leave in redundancy situations.

The current position is that if a redundancy process takes places in an organisation when an employee is on maternity leave, shared parental leave or adoption leave and an alternative role becomes available, they will be prioritised for this role over other employees who are provisionally selected for redundancy. The new legislation would extend this right. For example, pregnant employees would benefit from this protection from the time that they inform the employer that they are pregnant for a period of up to 18 months after the birth. Extended protection would also apply to those on adoption leave or shared parental leave, for a period of up to 18 months after their return.

Duty to Prevent Sexual Harassment

The Government has confirmed its support for the Worker Protection (Amendment of Equality Act 2010) Bill. This introduces a positive duty for employers to take all reasonable steps to prevent sexual harassment of their employees, which expands the current scope of employer liability for harassment. It also provides for employer liability for harassment of staff by third parties, such as customers.

Employees cannot bring a standalone claim for a breach of this duty. However, if it is found that there has been a breach of this duty by the employer in cases of sexual harassment, there may be an uplift in compensation awarded. Both the Employment Tribunals and the Equality and Human Rights Commission could uplift awards by up to 25% where they find that there has been a breach of duty by the employer.  

Leave for Neonatal Care and Unpaid Carers 

The Government have confirmed their support of the Neonatal Care (Leave and Pay) Bill 2022-23 which will introduce statutory neonatal leave and pay for parents of children requiring neonatal care for up to 12 weeks. This will be in addition to other leave entitlements such as maternity and paternity leave. The Bill will apply to parents of babies who are admitted into hospital up to the age of 28 days and who have a continuous stay in hospital of 7 full days or more.

The Government have also announced their support for the Carer’s Leave Bill 2022-23 which provides a right for unpaid carers to receive up to a week of unpaid leave per year. The intention is that workers will be able to take the leave flexibly to suit their caring responsibilities and they will not need to provide evidence of how leave is used or who it will be used for.

Repealing Legislation

As discussed at length in the HR Newsletter Edition 25, the Retained EU Law (Revocation and Reform) Bill is due to come into force on 31 December 2023 and is likely to have profound implications for employment law. It is important that you remain alert to the developments with this legislation over the course of the year, including if the deadline is extended. However, there are other pieces of legislation which the Government may also repeal this year, which will also have implications for employment law.

The first of these is the Human Rights Act 1998 which is due to be repealed and replaced with the Bill of Rights as introduced in June 2022. This would allow the UK courts to diverge from the case law of the European Court of Human Rights and for the UK Supreme Court to be the ultimate judicial authority on Convention rights under domestic law.

The Government have also announced its intention to replace UK GDPR with a British data protection system. This will be introduced by means of amending the Data Protection and Digital Information Bill. The intention behind this appears to simplify the UK’s data protection framework and reduce regulatory burdens on organisations. We are also expecting to see updated data protection and employment practices guidance in 2023 from the Information Commissioner's Office.

Additional Bank Holiday

An additional bank holiday has been announced for Monday 8th May 2023, due to the coronation of King Charles. In preparation for this, it is suggested that you review the contracts of employment for your employees, to understand if they are entitled to take this day off, so that you can set expectations early on. This will depend on the wording of their contract of employment.

For example, if their contract provides that they are entitled to ‘all public holidays’ then they will be entitled to this additional day off. However, if their contract states that they are only entitled to ‘eight public holidays’ or ‘the usual public holidays’ then they will not be entitled to this. It may be that you wish to close your organisation for this public holiday in any event. In these circumstances, if your workers are not entitled to the additional public holiday, you may be able to request that this public holiday is taken as annual leave.

If you have any questions in the meantime, please do not hesitate to get in touch with a member of the team on 0345 111 5050.


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