The first, and arguably the most prominent, employment law issue likely to come up in the coming months is the Retained EU Law (Revocation and Reform) Bill.
If passed in its current form, I have serious concerns that it will create legal uncertainty. For example, by potentially creating uncertainty for employee and employer rights on the sale of a business, working time, guaranteed paid holidays and equality of treatment for part-time and fixed-term workers.
Legal uncertainty can undermine any plan for growth as neither employers nor employees will have clarity as to the meaning of large parts of employment law that affect investment and the cost of labour.
The bill is currently making its way through parliament. The Employment Lawyers Association (ELA) has written to the government setting out our concerns and giving recommendations on what the government can do to address them. We hope it takes what we say on board.
Flexible and hybrid working
Though that wave of uncertainty is seemingly unpleasant, the next topic is a far more familiar one. Employees have been reaping the benefits of flexibility and hybrid working since the start of the pandemic in 2020, and there’s no doubt it’s set to stay – despite the potential dismay of some employers that wish for their teams to return to the office. Employment lawyers are continually having to advise companies on the fine line between supporting businesses to meet their required in-person attendance, and accommodating employees’ desire for flexibility.
From hybrid working to an extended weekend, the four-day working week trials have recently been hailed, by some, as a triumph, with businesses reporting that productivity levels among staff with the reduced working days have either remained stable, or benefited from an increase. A majority of the companies that took part in the trial have consequently decided to keep the new shorter timetables. However, it remains to be seen whether such a working pattern is adopted more widely by employers. For those that do, they will need to work through some potential headaches, particularly around whether pay rates are maintained and the expectations to work (formal or otherwise) on the fifth day if it’s needed.
In a similar vein, employers across the country have already begun readying themselves to survive the cost of living crisis and looming recession that is about to hit the UK. It has been reported that many employees have already reached out to their companies for monetary support – whether in the form of pay rises or grants, to which some employers have been able to assist. However, recent strike action has highlighted the potential fallout for employers when pay increases cannot be agreed on.
The government has changed the law to allow businesses to use agency workers to cover the work of strikers, and is currently seeking to introduce legislation that would impose minimum service levels in specified transport services during periods of strike action. Even with these changes in the law, with the cost of living crisis not looking like it will go away anytime soon, we can expect to see more industrial disputes over the winter and into next year too.
Another topic that will be at the forefront of minds into next year is the immense pressures the tribunals are under at the moment, and the mounting backlogs they are facing. ELA research indicated that more than 40 per cent of lawyers were waiting more than a year for client cases to come to tribunal. Some cases have benefited from remote hearings, but this is not always possible because of resourcing. If we are to see a change in this, the system needs to be better resourced, which will allow disputes to be resolved efficiently – as lengthy waits can result in a negative impact on employee health and workplace morale.
Equality, diversity and inclusion
To end on a more positive note, we can expect EDI in the workplace to remain a key focus for both businesses and their workers. More employers have joined positive conversations surrounding this topic, and are wanting to take meaningful steps to improve their EDI practices. Further, around 10,000 businesses now annually report their staff pay, which is a useful resource when identifying potential gender pay gap issues. The government has ruled out mandatory ethnicity pay gap reporting; we can, however, expect to see more organisations voluntarily reporting this.
The next year looks like it will be a very busy one for employment lawyers and HR advisers as we seek to assist businesses and support employees to navigate changes in the employment law landscape.
Paul McFarlane is chair of the Employment Lawyers Association