Employment Law Update 2023

If you come to our Employment Law updates, you’ll know that we usually put on a breakfast event in the Autumn and a virtual event in the Spring to keep you up to date on key changes that might affect your business.

We’ve been keeping an eye out for interesting changes in Employment Law since our November 2022 event and the good news is that things are fairly quiet out there. A government consultation has been underway in relation to holiday pay and several pieces of draft legislation are still working their way through parliament, but there is nothing for you to action yet. So, we’ve decided not to hold a Spring update and will instead continue to track things and let you know of any key developments in the next few months.

Our Autumn event will go ahead as usual – we don’t want to miss an opportunity to see you all over a breakfast bap!

Holiday Pay

You may recall that the Supreme Court’s decision in the Harper Trust v Brazel case caused some controversy for employers, as it caused the value of holiday pay for part time/ part year workers to be disproportionately higher than that for full time workers. The government has recognised how undesirable this is and opened consultation to gauge the impact of the case and look at possible solutions. Consultation closed on 9^th March 2023.

It may take some time for the results of the consultation to become known and for draft legislation to be produced and approved to remedy the situation. In the meantime, we are stuck with the Supreme Court’s decision and you will need to decide if and how to apply it to your part time/ part year workers – let us know if we can help you with this.

Flexible Working

The draft legislation setting out proposed changes to flexible working rules has made its way through the House of Commons and is now in the House of Lords, meaning that it is likely to be approved. Generally speaking, new legislation tends to come into force in April or October and so we anticipate that this will come into force in October 2023.

The key changes are:

• Employees will be able to request flexible working to change their pattern of hours from day 1 of their employment – however, employers will still be able to refuse requests for business reasons after consultation.
• Employees will be able to make two flexible working requests per year – instead of one.
• Employees will no longer have to explain what effect they think their request for flexible working will have on your business and how this should be dealt with – in reality, very few employees engaged with this and the removal of this requirement will not prevent you from asking the employee to consider the bigger picture and engage in discussion with you about how to resolve potential issues arising from their request.
• Employers will have to deal with the request, including any appeal, within a two month period – instead of three months.

Harassment

The Worker Protection bill proposes to reintroduce part of the Equality Act 2010 that imposes a duty on employers to take all reasonable steps to prevent third parties, such as customers, harassing their staff on the grounds of a protected characteristic, such as age, race, gender, sexual orientation, disability, religion, etc. This was originally part of the Act, but was repealed. 

The scope of the duty is wide, with only one limited exception being described in draft legislation. This exception states that, if a third party expresses an opinion during a conversation in which the employee is not involved, and the third party does not intend to harass the employee, and the opinion relates to a political moral religious or social matter but is not indecent or grossly offensive then the employer is not expected to have tried to stop the third party expressing that opinion. This limited exception indicates that the employer has a duty to prevent all other forms of third party harassment – such as customers expressing offensive views to employees.

The result of the amendment is that employers could be liable for the actions of third parties who have harassed their staff on the basis that the employer could or should have prevented it. 

The draft legislation is now in the House of Lords and so it may come into force later this year. In the meantime, you may wish to consider how to prevent third party harassment of your staff – this may include appropriate signage in public areas or communication out to customers. 

Draft Legislation

• Carers Leave – the draft legislation is now in the House of Lords and so it may come into force later this year. It will allow employees to be absent from work without pay for a week to care for a dependent who has a disability or serious illness or who requires care due to their age. 

• Fertility Leave – the draft legislation will give employees the right to take time off to attend appointments related to fertility treatment. It still needs to go through both the House of Commons and House of Lords, and so we might not see an update on this for a while.

• Miscarriage Leave – the draft legislation proposes an extension to statutory parental bereavement leave, which will give employers two weeks of leave with pay at the statutory rate following a miscarriage. It still needs to go through both the House of Commons and House of Lords, and so we might not see an update on this for a while.

• Neonatal Care Leave – the draft legislation is now in the House of Lords and so it may come into force later this year. It will allow employees to take 12 weeks’ leave with pay at the statutory rate in addition to maternity or paternity leave if their baby is admitted to hospital up to the age of 28 days and needs to stay in hospital for 7 days or more. 

Statutory Rates

From April 2023, the statutory rates and limits will increase as follows:

• National Minimum Wage:
  • £10.42 per hour for workers aged 23 or more (aka National Living Wage).
  • £10.18 per hour for workers aged 21-22.
  • £7.49 per hour for workers aged 18-20.
  • £5.28 per hour for workers aged 16-17.
  • £5.28 per hour for apprentices aged under 19, or 19 or over in the first year of apprenticeship.
• Statutory adoption pay, maternity pay, paternity pay, shared parental pay and parental bereavement leave will increase to £172.48 per week.
• Statutory sick pay will increase to £109.40 per week.