This year is shaping up to be significant in terms of changes to employment law. Below, we have selected five of the main developments to look out for.
1. Post Brexit reform – the Retained EU Law (Revocation and Reform) Bill:
This bill will provide that any EU employment laws retained since Brexit will end on 31 December 2023. That includes some major legislation embedded in our system including the Working Time Regulations, TUPE, and the Maternity and Parental Leave Regulations. The intention is that such laws will be reviewed with a decision made to retain or replace them with new domestic legislation, or they will automatically expire at the end of the year. Consultations are due to commence shortly. We will then start to see which of the existing laws will be reformed (in part or in whole), maintained as they are, or removed from UK law altogether.
2. Code of Practice on Harassment:
This is currently in the hands of The Equality and Human Rights Commission. The new Code is expected to contain a new proactive duty which will require businesses to take reasonable steps to prevent the sexual harassment of staff ‘in the course of their employment’. That would cover while at work and at work events and gatherings. It would mark a reset of the current position which focuses on employers reacting reasonably and appropriately in the event of such incidents.
Further, the new Code is anticipated to re-introduce employer liability if workers are harassed for any reason (including sexually) by third parties in the course of their employment. A defence would be available if the employer could show that it took all reasonably practicable steps to prevent the harassment from happening. Albeit in the event of sexual harassment, the aforementioned legal duty to also prevent the sexual harassment will apply.
Businesses may need to up their game to prepare for the new legislation. This could take the form of regular staff and management training, refreshing policies and raising awareness surrounding the policies, putting systems in place to help prevent and detect harassment, and ensuring reporting and complaints procedures are fit for purpose.
3. The right to request flexible working:
It is due to become a day one right that employees can request to work flexibly (currently an employee needs to have six months’ service to be eligible). Employees will also be able to make two formal requests per year and will no longer need to explain how the requested change to their working arrangements would affect the employer and how any impact could be resolved. The changes also impose a requirement on the employer to explore alternatives with the employee if their primary request cannot be agreed. The consultation period to consider such applications will be reduced from three to two months. The eight prescribed business grounds upon which an employer can reject a request will be unchanged.
4. Extending redundancy protection to employees during any period of pregnancy and after family leave:
It is proposed that pregnant employees and new parents returning from maternity, adoption, and shared parental leave should be afforded greater protection from redundancy. Such employees may still be selected for redundancy, but where they are, the new legislation would govern that they must be offered suitable alternative employment over other employees. The motion is that the law would apply to an employee during any period of pregnancy, during their family leave, and for up to six months after their return to work. Full details of the plans and any eligibility criteria are to follow.
5. Carer’s leave:
This new entitlement would allow employees to take a week’s leave per year to provide or arrange care for a dependant with a long-term care need. It is set to apply to anyone caring for a spouse, civil partner, child, parent, or other dependent who needs care because of a disability, old age, or any illness or injury likely to require at least three months of care. It would be available to all employees from day one of employment. While the leave would be unpaid, some employers may elect to bring it into line with other ‘family friendly’ leave which is paid at an enhanced rate. The finer detail around the process for requesting such leave and how and when it could be taken is awaited.
All the above is expected to pass as law this year, but will be subject to further consultation or amendment before being implemented. While some of the changes could take effect this year, we might have to wait until 2024 for others.
For further information or support in preparing your business for these developments, please contact Head of Employment Helen Crossland at [email protected] or 020 7725 8034.