Changes to employment law in 2023  

Welcome to this short update on what employment law changes we might expect in 2023. Whilst some of these changes will (and have) been enacted, such as rate changes, the rest may not. In some cases, we expect certain changes to be in force in the future, but we don’t have all of the relevant detail yet. Hopefully this guide will help to prepare you for when changes are passed into law, and it will also help you to see the direction of travel in terms of employment trends.  

Rate Changes 

April 2023 saw the usual set of statutory rate increases, including the annual increases in National Minimum Wage as follows: 

• Workers aged 23 and over: £10.42 an hour (National Living Wage) 
• Workers aged 21-22: £10.18 an hour 
• Development rate for workers aged 18-20: £7.49 an hour  
• Young workers rate for workers aged 16-17: £5.28 an hour 
• Apprentice rate: £5.28 an hour

The above rates came into force on 1st April 2023. 

On 2^nd April 2023, statutory maternity, adoption, paternity and shared parental pay rose from £156.66 to £172.48 a week. Statutory sick pay also rose from £99.35 to £109.40 per week. 

Flexible Working  

On 5^th December 2022, the government confirmed that the right to request flexible working will become a ‘day one right’ for employees and other workers, enabling them to request variations to their terms and conditions of employment, including working hours, times and locations, rather than having to wait until they have 26 weeks’ continuous service. 

Other changes will include: 

• Employers being required to consult with an employee where they are considering rejecting a request. 
• Employees being able to make two requests in a 12-month period (currently they can only make one). 
• Employers responding to a request within two months (down from three months). 

• Employees no longer needing to specify how their employer might deal with the effects of their flexible working request. 

In summary, employees can make a request sooner (day 1), they can make double the number of requests (2 per year) and you have less time to respond. The employee will no longer have to consider and address the business needs, only their own. There is nothing to prevent employees from making applications every 6 months if they don’t get the response they want and employers will have to take care to give due consideration to each application.  

The changes will be introduced through legislation when “parliamentary time allows.  

Bank holiday for the King’s Coronation 

There will be an additional bank holiday on 8^th May 2023 to celebrate the King’s coronation. 

Employers are advised to check employment contracts and consider how they dealt with the two additional bank holidays last year, to help them to work out what their position is regarding employee entitlement to this bank holiday. Bear in mind that part-time staff who would not normally be working on the bank holiday, because it is not one of their working days, would miss out if the extra day off is only given to those employees who do normally work on that day. To avoid the risk of a claim for less favourable treatment of part-time workers, their holiday entitlement should be adjusted to reflect this on a pro-rata basis. 

The Retained EU Law (Revocation and Reform) Bill 

In September 2022, the government proposed the Retained EU Law (Revocation and Reform) Bill, which aims to abolish all EU-derived UK legislation by 31 December 2023. 

Unless new law is introduced to keep the EU derived legislation, over 2,400 pieces of EU law could be removed from the UK statute book by the end of the year, including many employment-related regulations. 

There is scope to extend the time to complete the process to 23^rd June 2026 and the expectation is this extension will be utilised.  

Is it likely this will see a “bonfire of rights”? Probably not. However, there are some areas of employment law that are ripe for change, such as some TUPE rights, and the law in relation to holiday pay.  

The Employment Bill 

Originally announced in the Queen’s Speech in 2019, the Employment Bill has had a lot of coverage over the past few years as it proposes further rights and protections for employees.  

It hasn’t progressed very far since then, with the current position being it will be introduced ‘when parliamentary time allows’.   

Some of the proposals put forward by the Bill were: 

• Extending priority for alternative employment opportunities on redundancy to all pregnant employees and for up to 6 months after return from maternity leave. 
• 12 weeks’ paid neonatal leave for parents whose babies spend time in neonatal care units. 

• A week’s unpaid leave for carers. 
• Miscarriage Leave  

The Carer’s Leave Bill  

The Carer’s Leave Bill will introduce a statutory right to one week’s unpaid carer’s leave for employees who have dependants with a long-term care need. 

The right will be available from day one of employment and will be flexible. I.e. the week can be taken at different times to suit the employee’s caring responsibilities, and employees will be protected from suffering detriment or being dismissed as a result of having taken Carer’s Leave. Full details of how the scheme will be practically administered are not yet available.  

It will be implemented “when Parliamentary time allows”.  

GDPR  

The government is considering replacing the UK General Data Protection Regulation, which derives from EU legislation, with a British data protection framework. The government aims to make the new system business and consumer-friendly, and for it to be simpler and clearer for businesses to navigate. 

The government has issued its final response to its consultation “Data: a new direction” (launched on 10 September 2021) – its wide-ranging review of UK data protection laws post-Brexit 

The main message from the response is that the changes proposed are not as radical as some of the possibilities proposed in the initial consultation. This was probably due to the need  to protect the UK’s position as an “adequate” country from the EU’s perspective. 

Some of the other key headlines are: . 

• Cookies Consent: In time, the UK will move away from cookie consent to an opt-out model, along with further exemptions for non-invasive cookies.  

• DSARs: Introduction of exemption from DSARs where the request is vexatious (ICO guidance on what constitutes vexatious will be important). 

Positive Duty to Prevent Sexual Harassment  

The Worker Protection (Amendment of Equality Act 2010) Act seeks to introduce a positive duty on employers to ‘take all reasonable steps’ to prevent sexual harassment in the workplace. 

It would also make employers liable for the harassment of staff by third parties, such as clients or customers, and provides for a compensation uplift where employers are found to have breached their duty. 

Employers are not currently liable where staff are harassed by third parties. since the 2013 repeal of subsections 40(2)-(4) of the 2010 Equality Act. 

The Bill would create new legal liabilities for employers by treating an employer as harassing their employee if the employee is harassed in the course of their employment by third parties (such as customers or clients) and the employer fails “to take all reasonable steps to prevent the third party from doing so”. 

Trade Unions and Strike Action  

The Strikes (Minimum Service Levels) Bill was introduced in Parliament on 1st January 2023 and makes provision for minimum service levels in connection with the taking of strike action relating to certain services.  

The Bill seeks to ensure crucial public services such as rail, ambulances, and fire services maintain a minimum service during industrial action. The Bill covers fire, ambulance, rail, and fire services, as well as the health, education and nuclear decommissioning sectors and could make taking lawful strike action difficult.  There is expected to be considerable further debate in relation to Bill with the Trade Unions Congress having described it as ‘undemocratic and unworkable’, and the Labour Party indicating that it would repeal any such legislation if it were to come into power in the next national election.  

If you any questions on any of the above then please do not hesitate to contact the team. Find out more about Angela Brumpton here.