A busy year ahead in employment law

Published on 26.04.23
Published on 26.04.23

Consultant Karen South examines the employment law changes we can expect during the remainder of the year.

As 2023 progresses, there will be some significant changes in employment law. The aim of the changes is to modernise and improve current legislation and continue adjusting our laws following Brexit, as well as promote a better work-life balance and ensure fair treatment for employees.

There may be new parental rights changes to EU Law, and the updates are likely to impact SME employers and employees alike.

It should be emphasised that none of the changes referenced below are yet embodied in UK law. Some are making their way through the House of Commons, some in the House of Lords, and some are under consultation only.

Background to this overhaul

The government announced in December 2019 in the Queen’s speech that it was planning a new Employment Bill which would apply to England, Wales and Scotland and would cover:

  • A single enforcement body
  • Tips to go to workers in full
  • The right to request a more predictable contract
  • Pregnancy and maternity discrimination – extending redundancy protection.
  • Leave for neonatal care
  • A week’s leave for unpaid carers
  • Making flexible working the default.

On 23 March 2021, the government confirmed that the Employment Bill would not be introduced in that parliamentary session but would be introduced when parliamentary time allowed. The Queen’s speech delivered on 11 May 2021 made no mention of the Employment Bill. The government’s position on the Employment Bill was reaffirmed on 19 January 2022 when Paul Scully MP reconfirmed that the bill would be introduced “when parliamentary time allows”.

On 5 May 2022, it was reported that plans to legislate for workers to keep their tips had been dropped for the foreseeable future.

The Queen’s speech delivered on 10 May 2022 did not contain any reference to the Employment Bill.

The government’s position is that it is now supporting a number of private members’ bills to bring forward the promised legislation.

There are eight bills under review in parliament.

The bills in the House of Commons are:

  1. The Fertility Treatment (Employment Rights) Bill

Employees receiving fertility treatment receive the same pregnancy and maternity rights as unassisted pregnancies, but only once the employee is pregnant.

The aim of the bill is to require employers to allow employees to take paid time off work to attend fertility treatment appointments as well as any connected purposes related to treatment.

  1. Miscarriage Leave Bill

Under our current laws, those who suffer a pregnancy loss after 24 weeks are entitled to maternity and paternity leave and pay.

There is no provision for paid leave for people who, unfortunately, suffer the loss of a pregnancy before 24 weeks. This means many employees have to return to work immediately after suffering such a loss.

The Miscarriage Leave Bill is aimed at ensuring three days of bereavement leave for employees who have experienced a miscarriage.

There are a number of bills passing their way through the House of Lords:

  1. Carer’s Leave Bill

The aim of this legislation is to allow employees who care for a child, parent, other dependent or spouse or civil partner time off to attend to their caring responsibilities. This applies when the person requiring care needs at least three months of care due to an illness, injury, disability or old age.

The effect of this bill will be to entitle employees to one week’s unpaid leave per year. This would be called ‘carer’s leave’. Under this bill, employees will also be protected from dismissal or detriment due to having exercised their right to take this time off. It is proposed that this leave applies to employees from day 1 of employment.

  1. Flexible Working Bill

The current law provides that employee needs 26 weeks service before they are eligible to submit a flexible working request to their employer.

The proposed legislation is for the employees to have the right to request flexible working from day 1 of employment. An employer will still be able to refuse a flexible working request if this would impact their business. This exists under the law as it currently stands.

There are some other administrative changes to any flexible working requests:

  • The employer currently has three months to respond. The bill proposes reducing this to two months.
  • Employees are currently allowed to make a flexible working request once in any 12-month period. The proposed bill would extend this to two requests in a 12-month period.
  1. Protection from Redundancy (Pregnancy and Family Leave) Bill

The proposed changes to legislation under this bill are to extend the rights of protection from redundancy for women during or after their protected period of pregnancy. There is also a proposal that there should be enhanced protection following a return to work after shared parental or adoption leave.

  1. Neonatal Care (Leave and Pay) Bill

If an employee’s baby requires neonatal care, this bill creates two new rights:

  • neonatal care leave
  • statutory neonatal care pay.

As with other bills, this would be a day one right for employees.

If you have an employee with at least 26 weeks’ continuous service (with weekly earnings at or above the lower earnings limit), the employee would be eligible for neonatal care pay.

The exact parameters of this pay will be set by regulations, but we are already aware that the minimum period of pay is 12 weeks.

  1. Worker Protection (Amendment of Equality Act 2010) Bill

This will impose a specific legal duty on employers to take all reasonable steps to prevent sexual harassment of their employees at work.

The duty on employers for protection will be extended to cover harassment of the employee by third parties, i.e. customers or clients.

  1. Workers (Predictable Terms & Conditions) Bill

This bill would give workers and agency workers the right to request more predictable terms and conditions of work.

The second reading of this bill was on 3 February 2023, and the government announced it was backing it.

The first reading of this bill in the House of Lords took place on 27 March 2023.

  1. Retained EU Law (Revocation and Reform) Bill

Our legislation is undergoing a wholesale review following our exit from the EU. This bill gives parliament the power to:

  • review,
  • revoke, or
  • integrate EU Laws into UK legislation.

If parliament decides to keep EU legislation, those EU laws must be created as statutes within UK Law by 31 December 2023, or it will cease to become a law in the UK.

There is a discussion for implementation up to 23 June 2026 – which will be the 10-year anniversary of Brexit.

Portner’s employment department is tracking the legislation relating to the above, and updates will be provided as and when the situation changes or the legislation receives royal assent.

If you require any queries regarding employment law, please contact Karen South at [email protected].

Disclaimer: The above is merely general guidance and should not be relied on as formal advice. We suggest you take professional legal advice before taking any action in relation to the issues discussed above.