What to Expect from Employment Law in 2023

• Minimum Service Levels Bill – The Government this week introduced a Bill before Parliament to permit employers to require some trade union members to continue working during strike action. This is designed to ensure that public services are still able to operate during periods of industrial action and comes amidst a backdrop of ongoing pay disputes across the public sector. The Bill supersedes the Transport Strikes (Minimum Service Levels) Bill that the Government introduced in October 2022 affecting transport services and would cover the NHS, education, fire and rescue, border security and nuclear decommissioning.  We will provide more commentary on this Bill to our JEL Alert subscribers in early course.
• Statutory Code of Practice on Dismissal and Re-Engagement – The Government has confirmed that it intends to issue a draft statutory code on dismissal and re-engagement in early 2023. It is anticipated that the code will require employers to consult with employees when proposing changes to terms and conditions of employment. Tribunals and courts will be required to take this code into account when considering relevant cases and they will have the power to apply a 25% uplift to any award of compensation where an employer unreasonably fails to follow the code.
• Retained EU Law – As things presently stand, all retained EU law will be revoked on 31 December 2023 unless a positive decision is made to retain particular laws. This could potentially affect many of the basic employment rights currently enjoyed by UK workers which are derived from EU law, including minimum annual holiday entitlement, maximum hours of work per week, employee protections under TUPE and protections for agency workers, part-time workers and fixed term workers. It would be surprising if such laws were allowed to lapse without being retained or replaced, but it remains to be seen if this will be used by the Government as an opportunity to make changes to the law in these areas.
• Rights Originally Proposed in the Employment Bill – The Queen’s Speech in December 2019 had announced that the Government was planning to introduce a new Employment Bill before Parliament. This now seems unlikely. However, as the Bill has still not been introduced, a number of the measures that were intended to be included in the Bill are now proceeding as Government-backed Private Members’ Bills. The Private Members’ Bills are:
  • Carer’s Leave Bill – this will introduce a new flexible entitlement to one week’s unpaid leave for employees providing or arranging care for a dependent with a long term care need.
  • Employment (Allocation of Tips) Bill – this will require employers to allocate tips, gratuities and service charges to workers without deductions.
  • Employment Relations (Flexible Working) Bill – this will amend the process for requesting flexible working, including making it a day one right, allowing employees to make two requests in any 12-month period (increased from one) and requiring employers to make a decision within two months (reduced from three).
  • Neonatal Care (Leave and Pay) Bill – this will introduce a right to up to 12 weeks of neonatal leave for parents of children who are receiving, or have received, neonatal care. The leave will be paid if parents meet certain qualifying criteria.
  • Protection from Redundancy (Pregnancy and Family Leave) Bill – this will extend the protected period during which employees on maternity leave must be offered suitable alternative employment where a redundancy situation arises. The bill proposes that the protected period would run from the date that the employee advises her employer that she is pregnant to 18 months after the birth.

We will publish updates on any forthcoming changes to employment law in 2023 as the year progresses. However, if you would like to discuss any of the above changes or proposals, or you require support or advice on any employment law matters, please do not hesitate to contact a member of the team on 0141 331 5150.