Employment law developments: what’s the latest?

Blog

21.06.2023

Since the quiet dropping of the Employment Bill last year, the Government has continued to announce and support a range of employment law reforms. Since these seem to be in a myriad of different forms and progressing at different rates, it can be hard to keep up.

To help you (and us) stay up to date, this blog summarises the different pieces of legislation and guidance currently under consideration, with an update on where things currently stand.

New employment legislation

Protection from Redundancy (Pregnancy and Family Leave) Act 2023

This will extend the protection from redundancy to pregnant employees and those returning from family leave. The protection will cover pregnant employees from when they tell their employer they are pregnant until 18 months after birth. This will ensure that employees returning from maternity, adoption or shared parental leave receive redundancy protection for at least six months after they return to work.
The Bill received Royal Assent on 24 May 2023. Secondary legislation to implement the new protections will be laid “in due course”.

Neonatal Care (Leave and Pay) Act 2023

The Act allows eligible employees whose new-born baby is admitted to neonatal care to take up to 12 weeks of paid leave, in addition to the right to take other leave such as maternity or paternity leave.
The Bill received Royal Assent on 24 May 2023. It is expected that it will come into force in April 2025.

Carer’s Leave Act 2023

The Act makes a provision for workers who balance work with caring responsibilities to take up to one week of unpaid carer’s leave per year.
The Bill received Royal Assent on 24 May 2023. Subject to Parliamentary time, these provisions are expected to come into force sometime in 2024.

Employment (Allocation of Tips) Act 2023

The Act ensures that tips, gratuities and services charges paid by customers are allocated to workers.
The Bill received Royal Assent on 2 May 2023. The Act will come into force in 2024, with the date of commencement due to be announced later this year.

EU Retained Law (Revocation and Reform) Bill

The EU Retained Law Bill originally intended for all retained EU law to be revoked by the end of 2023 unless it was expressly transferred into UK law.
The Government has now reversed its position and only those laws expressly identified by the Government will be revoked. At the same time, it proposed a (fairly minor) package of employment law reforms relating to the Working Time Regulations, TUPE, holiday pay and non-compete clauses. For more information see our blogs Important employment law reform announced and A global shift away from non-competes?.

Employment Relations (Flexible Working) Bill

The Bill aims to give employees and other workers greater flexibility by having the right to request variations to particular terms and conditions of employment. The main change proposed is for the right to request flexible working to become a day one right, removing the current 26-week qualifying period. For more information, see our blog Flexible working: a day one “right to request, not a right to have”.
On 13 June 2023 the Bill reached committee stage in the House of Lords. There were no changes suggested to the bill so it will go directly to Third Reading (date to be announced).

Worker Protection (Amendment of Equality Act 2010) Bill

Broadly speaking, the Worker Protection Bill intends to:
- Re-introduce the duty to protect employees from third-party harassment, and
- Impose a positive duty on employers to take all reasonable steps to prevent sexual harassment, giving the Tribunal powers to uplift compensation by 25 per cent where employers fail to do so.
The Bill has had its second reading in both houses and is currently at Committee stage in the House of Lords. However, there are reports that the Government may be intending to drop its support for the Bill.
More detail of how employers can prepare for the implementation of this Bill can be found in our blog here.

Strikes (Minimum Service Levels) Bill

This Bill intends to amend the legal framework governing industrial action so that minimum levels of service can be maintained during strikes in certain sectors. The Bill would also amend unfair dismissal rights, so that any worker identified as being required to work during a strike, will lose their automatic unfair dismissal protection.
The Bill has proved controversial and has faced significant opposition, especially from trade unions who argue it is undemocratic. Amendments and counter-amendments are currently being debated by both Houses, with no indication as yet as to when it might receive Royal Assent. If it does come into effect, Labour has promised to repeal it if it gets into power.

Miscarriage Leave Bill

The Bill aims to give three days of statutory paid leave to employees who have experienced miscarriage, ectopic pregnancy or molar pregnancy before 24 weeks of pregnancy.
A second reading in the House of Commons is scheduled to take place on 24 November 2023, however since the House is not currently due to sit that day, this Bill is not expected to be taken forwards.

Fertility Treatment (Employment Rights) Bill

The Bill aims to introduce the statutory right for an employee to take paid time off work to attend fertility treatment appointments and for connected purposes.
A second reading in the House of Commons is scheduled to take place on 24 November 2023, however since the House is not currently due to sit that day, this Bill is not expected to be taken forwards.

Bill of Rights Bill

The Bill aims to repeal the Human Rights Act 1998 and create a new domestic human rights framework.
It was introduced to Parliament on 22 June 222. In early 2023, the Joint Committee on Human Rights urged the Government not to proceed with the Bill. The Bill is currently still before Parliament, awaiting its second reading, but following the departure of Dominic Raab (who sponsored the Bill) there is doubt over whether it will come into effect.

Data Protection and Digital Information (No.2) Bill

The Government introduced the Bill on 8 March 2023, withdrawing its previous Data Protection and Digital Information Bill. The Bill aims to make the EU GDPR more practicable and less burdensome for businesses in lower-risk situations, while maintaining a high data protection standard.
The Bill is due to have its Report Stage and Third Stage Reading in the House of Commons (date to be announced).

Workers (Predictable Terms and Conditions) Bill

A Private Members’ Bill to give workers and agency workers the right to request more predictable terms and conditions of work.
The Bill passed its second reading in the House of Commons and is due to be considered by the House of Lords shortly. It is being backed by the Government, so is likely to come into effect at some point if that remains the case.

Employment consultations and guidance

Statutory Code on dismissal and re-engagement

The Government has published a draft Statutory Code on dismissal and re-engagement which sets out clear expectations on employers when seeking to change terms and conditions, including contemplating dismissal and re-engagement, as well as potential consequences in the event these are not followed. For more information see our blog Government consultation on Draft Code of Practice on Dismissal and Re-engagement.
Consultation on the draft Code of Practice ended in April 2023. There is no indication as to when the Government might respond to this or publish a final Code of Practice.

Review of whistleblowing

The Department for Business and Trade has launched a review of the legal regime that supports workers who blow the whistle on wrongdoing in the workplace, explaining it will seek feedback from whistleblowers, as well as key charities, employers and regulators. For more information, see our blog Government review of whistleblowing framework.
The review is expected to be concluded by Autumn 2023.

Consultation on holiday entitlement for part-year workers

Following the Supreme Court decision in Harpur Trust v Brazel, in January this year, the Government launched a consultation on its proposal to return to pro-rating holiday for part-year workers. For more information see our blog Government consultation on holiday entitlement for part-year workers.
We are still awaiting a response to the consultation. However, the Government has subsequently announced its intention to re-introduce rolled-up holiday (for more see here), and it is possible an ability to pro-rate holiday pay and entitlement for part-year workers will be introduced as part of that package of reform “in due course”.

Ethnicity Pay Gap Reporting

In its Inclusive Britain report, the Government confirmed it would not be introducing ethnicity pay gap reporting but said it would provide guidance for employers on voluntary ethnicity pay reporting.
Although promised in summer 2022, this was finally published in April 2023: see here.

Reform of family-related leave and pay system

In July 2019, the Government published a consultation on reforming family-related leave and pay, including ideas to increase paternity leave and pay and reform shared-parental leave.
The Government’s response to this consultation is still awaited.

Single labour market enforcement body

In 2018, in its Good Work Plan, the Government announced an intention to introduce a single labour market enforcement body (currently there are four separate enforcement agencies).
There have been repeated commitments to this idea by the Government, most recently by the Business and Trade Committee in April 2023, however there is no indication when it might happen.

Misuse of NDAs

The Legal Services Board is consulting on the role lawyers’ conduct plays in the misuse of NDAs. This will run until July 2023. Formal consultation is then expected to take place, with a policy statement or guidance to follow.

Guidance on non-compete clauses

Following the Government’s announcement that it intends to limit non-compete clauses to three months (see here), the Government indicated that guidance on non-compete clauses will also be published, though as yet there is no indication as to when.

What does this mean for employers?

There is no denying this is a lengthy list which, if implemented, could require employers to make a significant number of changes to policies and procedures. That is, however, a fairly substantial “if”. The reliance on Private Members’ Bills, the watering down of Brexit set pieces and the now rather hollow sounding promise of “when Parliamentary time allows” have the hallmarks of a Government preoccupied with other issues. That clearly leaves employers with uncertainty over when, and indeed if, any of these changes might be brought into effect. Some employers may wish to press ahead regardless and adopt some of the policies proposed into their internal practices on a voluntary basis. Otherwise, it is hard to give any hard and fast guidance other than continue to watch this space. We will of course update you when we hear anything new.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.