2023 – What is on the employment law horizon?

There weren’t many legislative changes affecting the workplace during 2022 and the Employment Bill failed to materialise without even a mention in the Queen’s Speech in May last year.  But the government does seem to be indirectly introducing a few of the measures due to be contained in that bill by supporting a number of Private Members Bills which cover the same or similar issues and we’ve outlined these below.  Significantly, however, there has been a major shift in the way people work with the continuation of some form of hybrid working for many following the pandemic and 100 employers signed up to a permanent four-day week (whereby workers receive 100% of pay for 80% of normal hours and 100% productivity) after the end of the 6 month pilot.

We outline below what we anticipate being the key legislative and other developments during 2023:

• “Brexit Freedom” Bill – under the Retained EU Law (Revocation and Reform) Bill all retained EU law will be amended, repealed or replaced by 31 December 2023 unless the government takes specific steps to preserve it. This could impact EU-derived regulations such as the Working Time Regulations, TUPE and the Agency Workers Regulations. 
• Carer’s leave – the Carer’s Leave Bill introduces a new and flexible entitlement of one week’s unpaid leave per year for employees who are providing or arranging care.
• Data protection – a new British data protection framework will be introduced by amending the Data Protection and Digital Information Bill which is currently going through Parliament. This is intended to replace the UK GDPR.
• Fire and rehire ­– a draft Statutory Code of Practice on dismissal and re-engagement is due to be published and consulted on with trade unions. In November 2022 the government confirmed it would be published in the “near future”.
• Flexible working – the Employment Relations (Flexible Working) Bill is being supported by the government. The Bill does not contain a “day one” right to request flexible working but does contain the right to request variations to particular terms and conditions of employment including working hours, times and locations. On 5 December 2022 the government announced that it will be bringing forward secondary legislation to make the right to request a “day one” employment right although there is no timeframe for this apart from “when Parliamentary time allows”.  Other changes include removing the need to set out the effects of the request, requiring employers to consult over options before rejecting a request and allowing employees to make 2 requests in a 12-month period. 
• Human Rights – it is understood that the Bill of Rights which the Liz Truss government dropped is due to be back in Parliament “within a number of weeks”.  The Bill aims to repeal the Human Rights Act 1998 and create a new domestic human rights framework around the European Convention on Human Rights. 
• Hybrid working – in December 2022 the Office of Tax Simplification published the findings of its review of the tax implications of hybrid and distance working. It notes that the large-scale move to hybrid and distance working presents an opportunity for tax policy changes to benefits and expenses rules as well as better guidance.  The report also considers short-term and permanent cross-border working arrangements and the compliance issues associated with these. 
• Monitoring at work – the deadline for responses to the ICO consultation on draft guidance for employers on monitoring at work is 11 January 2023.
• Neonatal Care – the government is supporting the Neonatal Care (Leave and Pay) Bill which will allow parents to each take up to 12 weeks’ of paid leave, in addition to other leave entitlements such as maternity and paternity leave so they can spend more time with their premature child. It will apply to parents of babies who are admitted to hospital up to the age of 28 days and have a continuous stay in hospital of seven full days or more.
• Protection from redundancy – the Protection from Redundancy (Pregnancy and Family Leave) Bill is being supported by the government and will amend the Employment Rights Act 1996 to enable the Secretary of State to make regulations providing for protection against redundancy “during or after” the relevant leave and “during and after” a “protected period of pregnancy”. The detail will be provided by regulations, but it is likely to be for 6 months.
• Sexual harassment – the Worker Protection (amendment of Equality Act 2010) Bill creates employers’ liability for harassment of their employees by third parties, introduces a duty on employers to take all reasonable steps to prevent sexual harassment of their employees, makes provision for the enforcement of that duty and provides for a compensation uplift in sexual harassment cases where there has been a breach of the employer duty. The government is also supporting this bill. 
• Tips – the Employment (Allocation of Tips) Bill aims to ensure that tips, gratuities and service charges paid by customers are allocated to workers. It is anticipated that the changes will come into effect no earlier than one year after the legislation receives Royal Assent, so this is likely to take effect in 2024.
• Workers’ health – the deadline for responses to the ICO consultation on draft guidance on information about workers’ health is 26 January 2023. This covers key topics such as processing health data, transparency and retention.  It also provides guidance on data sharing, automated decision making as well as specialist topics such as sickness, injury and absence records, occupational health schemes, medical examinations, genetic testing and health monitoring.

Key cases to watch out for:

• Holiday pay: At the end of 2022 the Supreme Court heard a case from the Northern Ireland Court of Appeal over the issue of whether a 3-month break in a series of unlawful deductions claim for outstanding holiday pay breaks the chain.  If the Supreme Court finds that three months does not break the series, this will be costly for this employer as NI has no 2-year limit on deductions claims.  It will impact England, but with the 2-year limit when looking back applicable, it will mean it will not be as expensive.
• Agency workers: the Supreme Court is due to hear the long-running case of Kocur v Angard Staffing Solutions Ltd on whether regulation 13 of the Agency Worker Regulations provides agency workers with a right to be entitled to apply and be considered for relevant internal vacancies with a hirer on the same terms as direct employees.
• Gender critical beliefs: there are several cases on appeal related to the protection of gender critical beliefs under the Equality Act 2010. Whilst the courts have accepted that gender critical beliefs are capable of protection, it is how they are manifested which is resulting in tribunal claims.  Of particular note are the cases of Bailey v Stonewall where barrister Allison Bailey was successful in her tribunal claim of discrimination and victimisation against her Chambers because of her gender critical beliefs but unsuccessful against Stonewall; and Higgs v Farmor’s School, which concerned an employee who was disciplined because of inflammatory language used in social media posts which could have led readers to belief she had transphobic and homophobic beliefs. 
• Unfair dismissal: the Court of Appeal is due to hear Hope v British Medical Association on whether an employee had been fairly dismissed for bringing numerous vexatious and frivolous grievances, refusing to progress them and failing to comply with a reasonable management instruction to attend a grievance meeting.