What Employment Law Developments Should Universities Expect in 2023?
With 2023 now well underway, there are a number of key employment law developments that universities should be aware of.
Industrial Action
The Strikes (Minimum Services Levels) Bill is currently making its way through Parliament, with the aim of guaranteeing minimum service levels during industrial action in key sectors. Although the press has focussed on the effect this may have in the transport and health sectors, the powers could extend to other sectors, including education. Whilst it is expected that employers and unions will reach agreement on reasonable levels of service during strike action, the Secretary of State could step in and set minimum service levels, including possibly in higher education, if this is felt to be necessary.
Family Friendly Rights
For some time now we have been expecting a number of employment law changes to be implemented when parliamentary time allows. Whilst a new Employment Act does not seem to be on the horizon, the Government has confirmed its support for several Private Members' Bills on family-related rights:
- Protection from Redundancy (Pregnancy & Family Leave) Bill - Currently, a woman on maternity leave must be offered suitable alternative employment if her role is at risk of redundancy and there is a position available. This Bill will extend the period of protection from the date the employee notifies the employer of her pregnancy until six months after the end of her maternity leave.
- Neonatal Care (Leave & Pay) Bill - This will introduce a day one right of up to 12 weeks' leave for parents of children who require neonatal care. Employees with more than 26 weeks' service will also be entitled to be paid at a statutory rate during this leave.
- Carer's Leave Bill - This will introduce a day one entitlement to one week's unpaid leave per year for employees who provide or arrange care and there will be protection against detriment or dismissal for exercising this right.
Flexible Working
The Employment Relations (Flexible Working) Bill is another Private Members' Bill which the Government has confirmed it will support. It will allow an employee to make two flexible working requests a year rather than just one. It will also reduce the time that employers have to respond from three months to two.
The Government has also indicated an intention to make the right to request flexible working a day one right, rather than an employee having to have 26 weeks' service as under the current regime.
Third Party Sexual Harassment
The Government has confirmed its support of the Worker Protection (Amendment of Equality Act 2010) Bill which will create employer's liability for third-party harassment and introduce a statutory duty on employers to take all reasonable steps to prevent sexual harassment of their employees.
Fire and Re-Hire
The Government has published a draft Statutory Code of Practice on dismissal and re-engagement. This sets out a step-by-step process for employers to explore alternatives to dismissal and to consult meaningfully on proposed changes to staff terms and conditions, with dismissal and re-engagement only being used as a last resort. Employment Tribunals will take the Code into account and compensation may be increased by up to 25% for an unreasonable failure to follow the Code. Consultation on the draft Code is open until 18 April 2023.
Holiday Pay Consultation
The Government has announced a consultation on holiday pay entitlement for permanently retained part-year and zero hours staff. It is proposed that the statutory holiday entitlement for permanently retained part-year and irregular hours workers should be pro-rated in proportion to the total annual hours they have worked. This proposal comes as a direct response to the Supreme Court's decision in the Brazel case which found that the current law didn't contain any basis on which to pro-rate holiday for part-year working. Consultation closes on 9 March 2023.
EU Repeal Bill
The Retained EU Law (Revocation & Reform) Bill has the potential to have a huge impact on UK employment law. If it becomes law, on 31 December 2023, it will automatically repeal any EU law not expressly preserved. Many current employment rights, including under the Working Time Regulations and TUPE, derive from EU law and could be repealed if the Bill passes into law. We will keep you updated on developments and the likely implications.
