New employment laws for 2023

What upcoming legislation does HR need to know about? Audrey Williams reports

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Rather than new employment legislation coming from government, changes to the law are likely to be the result of private members’ bills that have government support. The exceptions are the Strikes (Minimum Service Levels) Bill and the Transport Strikes (Minimum Service Levels) Bill, which are aimed at the transport sector to address the ongoing industrial action.

Existing flexible working rights will be extended to all employees from day one with a simplified process. The government’s proposals and the bills they are supporting meet a key objective: to remove barriers for specific parts of the workforce, thereby improving career progression as per the policy paper, Helping people secure, stay and succeed in higher quality, higher paying jobs published in December 2022.  

Forthcoming legislation and what it means for business

  • The Carer’s Leave Bill will give those responsible for dependants the right to up to one week’s unpaid leave (or up to a week used flexibly). This will be a day-one right. Many organisations already support carers, and this will add to existing entitlements to emergency time off rights. This will mean changes to flexible working policies and practices, therefore briefing (and reminding managers) of their obligations will be necessary.

  • The Protection from Redundancy (Pregnancy and Family Leave) Bill will also change existing arrangements. Employers already find the family leave and right to return to work rights challenging. This bill will extend the right to be redeployed during pregnancy (including miscarriage), maternity and family leave for another six months after that leave. These are important provisions that have to be managed during an employee’s family/maternity leave and in restructuring or reduction in workforce exercises.

  • A private member’s bill (from the House of Lords) on whistleblowing will (if introduced) repeal the current framework in the Public Interest Disclosure Act 1998 and introduce broader protection with a bigger range of penalties. This would result in significant changes to whistleblowing and speak-up policies and processes. The bill would create a new body – the Office of the Whistleblower – which would be given investigation powers and have the authority to order redress.

  • History repeats itself 

    Proposed amendments to the Equality Act to address harassment in the workplace will reintroduce old rights that were repealed some years ago. The Worker Protection (Amendment of Equality Act 2010) Bill will extend employers’ duties to protect against sexual harassment and reintroduce protection (and businesses’ responsibility and therefore legal liability) for third-party harassment.

    • It will create a statutory duty requiring an employer to prevent sexual harassment of employees and workers.

    • It will also make the employer liable for the harassment committed by third parties; for example, customers, service users, clients and, in an education setting, students. This third-party liability applies to all forms of unlawful harassment; for example, racial harassment, offensive conduct based on age or disability, etc.

    Where sexual harassment occurs, as well as enforcement by the Equality and Human Rights Commission, an employment tribunal will be entitled to increase compensation in an individual harassment case by up to 25 per cent.

    These are duties to prevent, which means having a policy won’t be enough. So, in addition to amending dignity at work policies, organisations must make clear what is unacceptable, enforce those standards and be able to demonstrate that action is taken to tackle these issues when they arise.

    The Retained EU Law (Revocation and Reform) Bill, also called the Brexit freedoms bill, which would sunset the majority of retained EU law by 31 December, is looking less likely to become law because of the amount of opposition to it and its scope. If enacted, it could change a range of employment regulations including Tupe, working time and fixed-term, part-time and agency worker rights as well as equal pay. How the government intends to carry forward this legislation remains to be seen; however, it will certainly have a significant impact on UK employment law.

    Audrey Williams is an employment partner at Keystone Law