Employment law: what's on the horizon for 2023?


As employers continue to grapple with the cost of living crisis, they will also need to have an eye on legal developments.  Although the long-promised Employment Bill (which was supposed to deal with flexible working, carers' leave, NDAs, neonatal leave and other matters) is yet to make any progress, there are other developments which employers should be aware of. 

1.  Holiday entitlement for part-year workers, agency workers and workers with irregular hours 

Hot off the press, the Government is consulting about changes to the calculation of holiday entitlement for workers with atypical hours. Holiday entitlement for part-year and irregular hours workers would be calculated based on their working hours in the previous leave year, rather than them being entitled to 5.6 weeks' holiday regardless of the amount they have worked.  For agency workers, holiday entitlement will be calculated on the basis of 12.07% of their hours worked in the last month, or in their last assignment (if shorter than a month).   These changes will be welcomed by employers, who have found the Harper v Brazel ruling on holiday pay difficult to implement - see full details here.

Although we don't yet have a timescale for this to be implemented, it seems likely that the Government will move swiftly, as the Working Time Regulations will be affected by...

2.  ...The Retained EU Law Bill

This will repeal any regulations implementing EU law as of 31/12/2023 unless the Government chooses to retain them, as well as removing current requirements to interpret EU-derived laws in accordance with EU caselaw and general principles of EU law.   The potential impact on employment law is very significant, with areas such as equality law, paid holiday and working time, TUPE transfers and agency worker rights affected.  We don't yet know what changes the Government intends to make to these areas. 

3.  Strike laws

The Government is legislating to introduce significant curbs on industrial action in a range of sectors, including transport, health, education, border security, fire and rescue and nuclear decommissioning and management of radioactive waste.  The proposed legislation would enable the Government to mandate minimum service levels for each of these sectors, and employers will be able to issue a "work notice" to a trade union setting out which workers are required to attend work in the event of a strike.  Trade unions will need to take reasonable steps to prevent workers going on strike in breach of the work notice - if they do not, the relevant employer will be able to sue for damages.  Any employees who are required to work under a work notice but who go on strike will lose the right to claim automatic unfair dismissal if dismissed for that reason.   Trade unions look set to challenge the proposals on human rights grounds - they are already pursuing a judicial review over regulations enabling employers to use agency workers during strikes. 

4.  Private members' bills

There are currently several employment law private member's bills going through Parliament which have Government support.   These include bills which will:  

  • enable employees to request flexible working at the outset of their employment (rather than needing 6 months' service as they do now);
  • introduce paid neonatal care leave for parents with babies needing extended in-patient care;
  • require employers to take steps to prevent harassment of staff by third parties;
  • make it unlawful for employers to retain a share of tips;
  • extend protection against redundancy for pregnant workers; and
  • introduce unpaid carers' leave. 

It seems likely that these will come into force, although the timescales are not yet known. 

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