What's coming up in 2023?
We start 2023 with industrial turmoil in the UK - all of us affected by repeated strike action for the first time in many years.
There isn't much stability in what has been planned in changes to employment law in 2023 either, so it may continue to be a year in which it is difficult to predict what might happen next. While there is quite a bit of new law planned, there aren't timescales, save for the wholesale revocation of EU laws planned on 31 December, which may or may not happen. So there's certainly plenty going on this year to keep employers on their toes!
But what about the things on your agenda? At our Trowers Tuesday on 10 January our poll on your priorities for 2023 revealed, perhaps unsurprisingly, improving recruitment and retention topped the list for 48% of attendees. Helping employees with the cost of living crisis, restructures and redundancies, and wellbeing are also on the agenda for many, while for some attendees the new year involves plans to tackle ESG, managing hybrid working and employee relations issues.
Strikes in our key services causes much concern for all. As a priority, the Strikes (Minimum Service Levels) Bill was introduced in Parliament on Tuesday 10 January. If it becomes law it will allow the Secretary of State to set minimum service levels (MSLs) in a number of different sectors, including health, transport and education. Employers in those sectors will then be able to identify the workers required to work during a strike in order to ensure the MSL. The relevant trade union will lose its immunity from liability under the Trade Union and Labour Relations (Consolidation) Act 1992 if it fails to take reasonable steps to ensure that all members of the union who have been identified fail to comply with the requirement to work. This means that if a strike took place unlawfully the employer could take action against the union directly for damages caused by any failure to take reasonable steps (disregarding any loss that would have been caused by the strike had the union complied).
The government has stated that it will consult first on MSLs for fire, ambulance and rail services, and has expressed the hope that it will not have to use these powers for other sectors included in the Bill as it "expects parties in these sectors to reach a sensible and voluntary agreement…on delivering a reasonable level of service when there is strike action". If it does come into force, Labour has promised to repeal it if it wins the next General Election.
In the meantime, the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (the Regulations), which came in on 21 July 2022 and which allow agency workers to be used to fill in for striking workers, has provoked a kick back from the unions and the High Court has granted permission for a judicial review of the Regulations. The unions will argue that the regulations are unlawful on two grounds. The first is that the Secretary of State for Business, Energy and Industrial Strategy (BEIS) failed to consult the unions as it is required to do under the Employment Agencies Act 1973. The second is that the regulations violate fundamental trade union rights that are protected under Article 11 of the European Convention on Human Rights. The judicial review proceedings are expected to be heard in March.
Courtesy of the pandemic, flexible working has been fairly high on most employers' agendas for some time now. The government has confirmed in its response to its consultation, 'Making flexible working the default', that a number of changes will be affecting the flexible working regime. Flexible working will become a day one right, and while the eight business grounds for rejecting a flexible working request will remain as they are, there will be a new obligation on employers to consult with the employee to explore the available options before rejecting a request.
In addition, instead of only being able to make one statutory request for flexible working in a 12-month period, an employee will be able to make two. Employers currently have three months within which to respond to the request; this will be reduced to a two-month period to make the process more streamlined.
The changes are expected to be in law in 2023.
The Retained EU Law (Revocation and Reform) Bill
The Bill provides that all retained EU law contained in domestic secondary legislation (for example, the Working Time Regulations and TUPE) and retained direct EU legislation will be revoked on 31 December 2023 unless a decision has been made to preserve it. It allows for an extension of the revocation date of certain legislation to a later date (which must be no later than the end of 23 June 2026) to enable departments to have additional time, where necessary, to assess whether some retained EU law should be preserved.
It's hard to tell what the Bill's impact will be, but we can certainly look forward to significant upheaval in what has been, over the past few years, a relatively unchanging employment law landscape. Legislation in the firing line includes the Working Time Regulations, Regulations in relation to Agency Workers, Part-time Workers and Fixed term Employees, as well as the Information and Consultation of Employees Regulations and various health and safety regulations. TUPE is something else which may be subject to change; the government may decide to make it more business friendly. For example it might choose to make it easier to harmonise terms following a TUPE transfer (something which is not permitted under EU law).
Consultation issued on calculating holiday entitlement for part-year and irregular hours workers
While we don't know what changes might be made under the Retained EU law Bill to the Working Time Regulations, the government has just launched a consultation on calculating holiday entitlement for part-year and irregular hours workers as a result of the Supreme Court's decision last year in Harpur Trust v Brazel. The Court held in Harpur Trust that holiday entitlement under the Working Time Regulations 1998 for permanent part-year workers should not be pro-rated so that it is proportionate to that of a full-time worker. As a result of this part-year workers are entitled to a larger annual paid holiday entitlement than part-time workers who work the same total number of hours across the year.
The government proposes introducing a holiday entitlement reference period of 52 weeks to ensure that holiday entitlement and pay is directly proportionate to time spent working. It proposes to include the weeks in which workers perform no work in the holiday entitlement reference period. The consultation closes on 9 March and we will be sending round a survey soon asking for your views so that we can feed into the consultation response.
The introduction of carer's leave
This will be introduced via the auspices of the Carer's Leave Bill, a Private Member's Bill which the government has announced that it is backing.
The Bill will introduce a new and flexible entitlement of one week's unpaid leave per year for employees who are providing or arranging care and will be available to eligible employees from the first day of their employment. They will be able to take the leave flexibly to suit their caring responsibilities and will not need to provide evidence of how the leave is used or who it will be used for. Employees will be protected from dismissal or any detriment as a result of having taken time off.
The new entitlement to statutory carer's leave will rely on the carer's relationship with the person being cared for, namely a spouse, civil partner, child, parent, a person who lives in the same household as the employee (other than by reason of them being their employee, tenant, lodger, or boarder) or a person who reasonably relies on the employee for care. It will also depend on the person being cared for having a long-term care need.
Neonatal leave and pay
This new entitlement is going to be introduced via another government-backed Private Member's Bill, the Neonatal Care (Leave and Pay) Bill.
Neonatal care leave will be available to employees from their first day in a new job and 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. Parents will have a right to neonatal care leave of at least one week and up to a maximum of 12 weeks regardless of length of service, and parents with at least 26 weeks' continuous service will have a right to receive neonatal care pay at a prescribed statutory rate. Parents taking neonatal care leave will have the same employment protections as those associated with other forms of family related leave, including protection from dismissal or detriment as a result of having taken leave.
Extension of redundancy protection to prevent pregnancy and maternity discrimination
The government announced last year that it is backing the Protection from Redundancy (Pregnancy and Family Leave) Bill, another Private Member's Bill.
Currently the Employment Rights Act 1996 (ERA 1996) allows the Secretary of State to make regulations concerning redundancy "during" periods of maternity leave, adoption leave or shared parental leave. The Bill will amend the ERA 1996 to enable the Secretary of State to make regulations providing protection against redundancy "during or after" an individual taking the relevant leave. It will also add a new provision to the ERA 1996 allowing for regulations about redundancy "during, or after" a "protected period of pregnancy". The detail will be provided by the regulations, but the explanatory notes to the Bill suggest that, by extending protection after a protected period of pregnancy, a woman who has miscarried before informing her employer of her pregnancy will benefit from the redundancy protection.
Sexual harassment in the workplace
A Private Member's Bill, the Worker Protection (Amendment of Equality Act 2010) Bill was introduced to Parliament on 15 June 2022 and has since received government support.
The Bill introduces a new duty on employers to take all reasonable steps to prevent sexual harassment in the workplace and reinstates employer liability for third party harassment. If the Bill is passed in its current form, an employee would be able to bring a third-party harassment claim against their employer after a single incident of harassment by e.g. a client or customer. Previously the legal test only imposed liability after the third incident which meant that successful third-party harassment claims were rare.
The Bill contains a 12-month delay period once it has passed, so it won't come in until 2024 at the earliest.
Consultation on Statutory Code of Practice on Dismissal and Re-engagement
The government launched a consultation on a statutory Code of Practice on Dismissal and Re-engagement on 24 January. The Code sets out detailed steps that employers should take when seeking to make changes to contractual terms, including providing information, engaging in meaningful consultation and exploring alternatives. It makes it clear that employers should not use threats of dismissal as a negotiating tactic. Employment Tribunals will be required to take the Code into account where relevant in any proceedings and may adjust compensation by up to 25% to reflect unreasonable non-compliance. The consultation on the Code closes on 18 April.
Interesting cases to look out for in 2023
2022 saw a number of interesting cases on gender critical beliefs and this looks set to continue; the Employment Appeal Tribunal (EAT) is due to hear the appeal in Higgs v Farmor's School, an appeal had been lodged in the case of Bailey v Stonewall Equality Ltd and ors, and permission to appeal the decision in Mackereth v Department for Work and Pensions has been lodged.
We are currently awaiting the Supreme Court's decision in Chief Constable of the Police Service of Northern Ireland and another v Agnew and others on whether a gap of more than three months will interrupt a series of unlawful deductions from holiday pay (the Northern Ireland Court or Appeal held that it would not). The Supreme Court judgement will be binding throughout the United Kingdom.
Meanwhile two separate discrimination claims are due to be heard by the employment tribunal in Manjang v Uber Eats UK Ltd and Raja v Uber (a date is awaited). The claims allege that Uber's decision to use a facial recognition system to verify the identity of their drivers indirectly discriminates on the ground of race.
There are a couple of interesting unfair dismissal cases. The first, Accattatis v Secretary of State for Business, Energy and Industrial Strategy, will be heard by the EAT to determine whether Covid-19 concerns alone will justify a refusal to attend work under section 100(1)(e) if employers have reasonably tried to accommodate employees' concerns and reduce transmission risk.
The second case, Hope v British Medical Association, is due to be heard by the Court of Appeal. The EAT upheld a tribunal finding that the claimant had been fairly dismissed, but the claimant argued that there had been a failure to determine whether the conduct which caused the dismissal amounted to gross misconduct. The EAT conceded that whether the conduct is so serious as to meet the definition of gross misconduct will be a relevant consideration in an unfair dismissal case, but held that it won't necessarily determine whether the employer acted fairly in treating the employee's conduct as a sufficient reason to dismiss in all the circumstances.
Towards the end of the year the Supreme Court is due to hear the appeal in Kocur v Angard Staffing Solutions. Previously in this case the EAT, and then the Court of Appeal, decided that Regulation 13 of the Agency Workers Regulations 2010 does not provide agency workers with a right to be entitled to apply, and be considered, for relevant vacancies with a hirer.
Finally the Supreme Court is due to hear Mercer v Alternative Future Group Ltd to determine whether it is possible to be protected from detriment for having participate in strike action, as well as considering whether employees can secure an injunction to stop them being dismissed and then reengaged on inferior terms in Union of Shop, Distributive and Allied Workers v Tesco Stores Ltd.