What to Expect in Employment Law in 2023
As the new year gets underway, we have looked at some of the key employment law developments anticipated in 2023.
A Spotlight on Family-Related Rights
The Government has confirmed its support for a series of Private Members' Bills which have been put forward to progress a number of rights which have been on the horizon over recent years. The Government supports the following family-related Private Members' Bills which are expected to have their second readings in parliament around February 2023:
- the Protection from Redundancy (Pregnancy and Family Leave) Bill - this Bill will extend redundancy protection for employees during or after pregnancy, or after periods of maternity, adoption or shared parental leave. Currently a woman on maternity leave must be offered suitable alternative employment, where a position is available, in the event that her position is at risk of redundancy. This Bill would extend the period of protection so it doesn't just apply when an employee is on leave but from the date the employee notifies the employer of the pregnancy, to six months after the end of the leave
- the Neonatal Care (Leave and Pay) Bill - this Bill will introduce a day one right to up to 12 weeks' leave for parents of children who require neonatal care. Employees with more than 26 weeks' service at the time of the leave will also qualify for the right to weekly pay during their leave, at the statutory rate (currently £156.66 per week, and rising to £172.48 from April 2023)
- the Carer's Leave Bill - this Bill will introduce a new, flexible entitlement to one week's unpaid leave per year for employees who are providing or arranging care. This will be a day one right and there will be specific protection against detriment and dismissal for having taken unpaid carer's leave.
We will keep schools aware of the changes as they are implemented and any revisions to policy documents required as a result.
An Overhaul of the Flexible Work Regime?
The Government has also confirmed it will support another Private Members' Bill, this time in relation to the rules around flexible working.
The Employment Relations (Flexible Working) Bill will increase the number of flexible work requests an employee can make from one to two per 12 month period and also remove the requirement for an employee to set out how the impact of the flexible working request may be addressed. The Bill will also reduce the response time for employers to respond to requests from three to two months. Employers will also need to consult with an employee if they are considering rejecting the request.
In addition to the changes above, and although not currently included in the Bill, it is understood that the Government's intention is for the right to request flexible working to become a day one right, rather than requiring 26 weeks' service as currently.
Most schools have become accustomed to dealing with flexible working requests, but this is likely to result in an increased number of requests and added scrutiny around decisions made. We are seeing an increase in demand for flexibility from staff in part due to the pandemic, and the increase in hybrid working patterns outside of the sector. Schools are having to consider their approach not only in line with legal requirements but in response to challenges in recruitment and retention.
Employer Liability for Third-Party Sexual Harassment
In October 2022, the Government also confirmed its support for the Worker Protection (Amendment of Equality Act 2010) Bill. This Bill will create employer's liability for third-party harassment. It will also introduce a statutory duty on employers to take all reasonable steps to prevent sexual harassment of their employees.
We would recommend that schools ensure their policies around harassment are up to date, and that all staff are trained on the expected standards of behaviour, and how to raise concerns.
Statutory Code of Practice on Fire and Re-Hire
In 2022, following the P&O Ferries fiasco, the Government announced that a statutory Code on 'fire and rehire' practices would be published. The Code will not change the law, but make it easier for employers to follow the law in order to engage fairly and meaningfully with staff in respect of proposed changes to terms and conditions of employment. The Code will be taken into account by Tribunals in deciding relevant cases, and compensation may be increased by up to 25% for an unreasonable failure to follow the Code.
The Government had previously indicated that a draft Code would be published for consultation in summer 2022. That timeframe has slipped, and we now anticipate that the draft Code will be published in early 2023.
This is likely to impact on all schools considering changes to terms and conditions of service for staff, which will include contractual changes to pay and pension provision.
Trade Unions and Industrial Action
We are all aware of the current impact of the industrial action in the public sector. The teaching unions are currently balloting staff in the public sector and the outcome of this should be known by the end of the month. The Government is considering introducing legislation to minimise the impact of industrial action, through imposing the requirement to ensure minimum service levels in certain sectors (although the detail of this is currently no known). This follows changes to the law in the Summer 2022 which increased the financial penalties in the event of unlawful industrial action and lifting the restriction on using temporary agency staff to provide cover for striking workers. The TUC, Unison and the NASUWT have brought judicial review proceedings challenging the legality of this, which we expect to be hearing in March 2023.
EU Repeal Bill
Despite having a reasonable amount of certainty in respect of the proposed changes outlined above, 2023 brings with it a significant potential unknown. The Retained EU Law (Revocation and Reform) Bill 2022 will, if passed into law, on 31 December 2023 automatically repeal any EU law not expressly preserved. The Government is yet to specify what law it intends to remove under the Bill, and what will be preserved. However, the current position is that key law such as the Working Time Regulations and TUPE could be repealed if the Bill passes into law. Given its significance, we expect the Bill to be fiercely debated over the course of this year before (and if) it passes into law. We will keep you updated as to any likely implications.
