An employment law expert said workers could be braced for a potential significant shake-up of rights in 2023 – with one potential change billed as the “most radical in years”.
Family-friendly paid leave, a removal of the cap on maximum working hours, and greater protection for new parents from redundancy are all among the topics of discussion next year with a series of potential legislation changes heading our way.
Tina Chander, who is Head of Employment Law at Leamington lawyers Wright Hassall, said it is important for employees – and employers – to keep abreast of the situation, and has named five of the biggest potential changes to look out for.
“There could be a lot of change in 2023 and arguably the biggest employment law issue next year will be whether the Retained EU Law (Revocation and Reform) Bill passes into law as drafted,” said Tina.
“This affects more than 2,400 EU-derived laws covering anything from the minimum amount of paid annual leave employees are entitled to, to the average maximum number of hours you are permitted to work without opting out, so this could be one of the most radical changes for years.
“Understandably any changes would be a cause of uncertainty for employees. On the flip side there’s also a number of other key legislation changes anticipated in 2023 which could provide them with enhanced rights too.
“It’s really key that employees keep abreast of how these proposed changes might impact them, and businesses must also start preparing now for potential wholesale changes in how they run their business.”
Laws on annual leave entitlement and working week limits
The Retained EU Law (Revocation and Reform) Bill was introduced into Parliament in September 2022 and is expected to ‘sunset’ so that it expires on December 31 2023, meaning more than 2,400 EU-derived laws will be axed from UK law unless specifically saved.
This will present an enormous headache to the UK Government due to the fact that they will have to review all Retained EU Law and decide whether to repeal, amend or replace entirely thousands of pieces of legislation. It will leave employers and employees facing uncertainty over whether rights such as entitlement to 5.6 weeks paid annual leave (28 days for someone who works five days a week) and the cap of a 48-hour working week limit under the Working Time Regulations 1998 will remain.
While the Government could opt to extend the deadline to review to June 23 2026 (marking the 10-year anniversary of Brexit), it creates a period of uncertainty for many with a number of crucial laws currently set to slide next year.
New anti-striking measures
In October, the then Transport Secretary Anne-Marie Trevelyan outlined proposals in the Transport Strikes (Minimum Service Levels) Bill to restrict employees’ rights to take industrial action, and Rishi Sunak’s new Government could make it law in 2023.
If enacted, minimum service levels must be in place during strikes in ‘critical national infrastructure’ industries within the transport sector, impacting employees’ opportunity to strike.
Though not contained in the Bill, other measures put forward are banning strikes by different unions in the same workplace within a set period, raising the minimum notice for industrial action from two to four weeks, raising the minimum voting in favour of strike action from 40% to 50%, introducing compulsory ‘cooling-off periods’ of up to 60 days after strikes and pickets at points of critical national infrastructure to be limited to six.
It remains to be seen whether the current Conservative Government will seek to progress any of these proposed policies.
Paid leave to parents whose babies require neonatal care
New parents and carers could have the right to paid time off if their baby is in hospital for seven or more consecutive days during the first four weeks of their life.
If introduced, the new right may give both parents up to 12 weeks additional leave in addition to any maternity, paternity or adoption leave entitlement. There will then be a new statutory payment for those on neonatal care leave subject to having at least 26 weeks of continuous employment and their weekly earnings are not less than the lower earnings limit for National Insurance contributions.
The Neonatal Care (Leave and Pay) Bill is currently going through Parliament and could get Royal Assent in Spring 2023, so employers may want to consider implementing such a policy before as a way of attracting new talent and improving employee retention rates.
Requirement for employers to have a policy on tips, gratuities and service charges
Millions of UK workers will be able take home more of their hard-earned cash under new legislation currently going through Parliament.
Tips, gratuities and service charges paid by customers must be allocated between workers “fairly” as part of the proposed Employment (Allocation of Tips) Bill, which also instructs employers to have a written policy on tips, keep written records of how each tip has been dealt with, and maintain records for three years from when that tip was received. There will also be a statutory code of practice to assist employers in the proper management of tips.
Failure to comply could leave businesses open to a compensation claim, resulting in an order which requires tips to be paid alongside up to £5,000 “to compensate for any financial loss sustained by the complainant”.
The new rules look fairly likely to come into force in some form, so employers need to start thinking now about what systems may need to be put in place to ensure accurate records can be kept.
Enhanced redundancy rights to new parents
Pregnant women and new parents returning to work will receive greater protection from redundancy if the new Pregnancy and Maternity (Redundancy Protection) Bill is passed.
Under current rules, if a redundancy situation arises during an employee’s maternity leave and “it is not practicable by reason of redundancy” for the employer to continue to employ her under her existing contract, the employee is entitled to be offered a suitable alternative vacancy where one is available, above anyone else whose role has been put at risk of redundancy.
The Bill proposes to extend protection to apply from when a woman tells her employer she is pregnant until 18 months after the birth, meaning for those taking a full 52-week maternity leave there will be additional six months protection once they return to work.
For those returning from adoption and shared parental leave under the plans they will also get the additional six months protection from when they return to work. In contrast to expectant mothers, they will not get protection prior to their leave commencing.