2023 has the potential to be a busy year for employment law changes, with a legislative agenda that includes possible post-Brexit reforms for EU-derived laws, increased employers' protection from strikes, and a raft of private members' bills offering additional employment rights.

This article touches on some of the most noteworthy employment law developments to watch out for in the coming year. Whilst these laws have yet to be passed, they all have government backing and are progressing through the House of Commons.

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Retained EU Law (Revocation and Reform) Bill

The terms of the UK's withdrawal from the EU meant that most EU-derived laws in place on or before 31st December 2020 were retained and preserved.

However, the Retained EU Law (Revocation and Reform) Bill, introduced to parliament on 22nd September 2022, provides that all retained EU-derived secondary legislation and retained direct EU legislation will expire by a "sunset date" of 31st December 2023 unless an express decision is made before then to preserve it.

There have yet to be any hints from the government as to what may change, and it's unclear if anything will change. However, this could impact numerous EU-derived employment rights and obligations, including working time rights, TUPE transfers, agency worker rights and the rights of part-time and fixed-term employees.

Key dates: This bill will have its report stage on 18th January 2023.

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Retained EU Law Revocation and Reform Bill

Strikes (Minimum Service Levels) Bill

The Strikes (Minimum Service Levels) Bill had its first reading in the House of Commons on 10th January 2023. If passed, the bill would allow the government to introduce regulations for "minimum service levels" for strikes in "relevant services" in the sectors of health, transport, education, fire and rescue, border control, nuclear decommissioning and radioactive waste management services. The government's stated aim is to reduce the disruption the public face when strikes impact these services.

We are waiting for details of the new law, but the following key elements have been set out:

Work Notices - Where minimum service regulations apply, an employer can send a striking union a "work notice" that identifies the workers it still needs and the required tasks during the strike. The employer first needs to consult with the union and must not identify more workers than "reasonably necessary" in the notice.
Loss of union immunity - If a union fails to take reasonable steps to ensure compliance with the work notice, it will lose its immunity from tort liability (exposing it to potential legal action from the employer).
Loss of unfair dismissal protection - A union member identified in the work notice who takes part in the strike in breach of the notice will lose their automatic protection from dismissal.

Key dates: The bill will have its second reading on 16th January 2023.

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Protection from Redundancy (Pregnancy and Family Leave) Bill 2022-23

Currently, in a redundancy situation, employees on maternity, shared parental, or adoption leave have an automatic right to be offered any suitable vacancies in priority to others.

This bill enables new regulations to be introduced that would expand the scope of this special protection to cover a period after the relevant period of leave has ended. While the details of those changes will follow in future regulations, the explanatory notes provide an example of at least one type of impact in the case of miscarriages. The notes mention that, by extending protections after a protected period of pregnancy, a woman who has miscarried before informing her employer of her pregnancy would benefit from the special redundancy protections.

Key dates: This bill will have its report stage on 3rd February 2023.

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Protection from Redundancy Pregnancy and Family Leave Bill 2022 23

Neonatal Care (Leave and Pay) Bill

This bill proposes a right for parents to take up to 12 weeks of paid neonatal leave where their child receives or has received neonatal care. As long as parents meet the criteria, eligibility for this leave will begin on the first day of employment.

The bill will also provide a statutory pay rate for those on neonatal leave, where they have at least 26 weeks of service. Employees on neonatal leave will have the same protections from detriment or dismissal for taking the leave as those on other family-related leave (i.e. maternity, paternity, adoption, and shared parental leave).

Key dates: The bill will have its report stage and third reading on 3rd February 2023.

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Carer's Leave Bill

The Carer's Leave Bill proposes a new flexible entitlement of one week's unpaid leave per year for employees who are providing or arranging care for a dependant with a long-term care need.

The leave will be available from the first day of employment and can be taken flexibly as half days or full days.

Key dates: The report stage and third reading are scheduled for 3rd February 2023.

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The Employment (Allocation of Tips) Bill

The Employment (Allocation of Tips) Bill will ensure that all tips go to workers, making it unlawful for businesses to hold back any tips, gratuities, or service charges; this bill passed its second reading on 15th July 2022.

The bill would see a new statutory Code of Practice developed to give businesses and staff advice on distributing tips. In addition, workers would receive a new right to request more information about an employer's tipping record. This should enable them to challenge their employer's practices through employment tribunal claims.

Key dates: The bill is due to have its report stage in the House of Commons on 20th January 2023.

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Employment Relations (Flexible Working) Bill

The Employment Relations (Flexible Working) Bill would amend the existing statutory regime for formal flexible working requests so that they are a right from the start of employment and can be made by employees twice in any 12-month period. Employees would also no longer be required to explain and address the requested changes' impact on the employer.

Meanwhile, employers would be expressly required to consult with an employee before rejecting any request, and the decision period for the employer would be cut from three months to two months.

Key dates: The bill is due to have its report stage and third reading on 24th February 2023.

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Employment Relations Flexible Working Bill

Worker Protection (Amendment of Equality Act 2010) Bill

The Worker Protection (Amendment of Equality Act 2010) Bill proposes to:

Impose liability on employers for harassment of their employees by third parties;
Put employers on active duty to prevent sexual harassment; and
Enable employment tribunals to increase compensation by up to 25% where employees have been subjected to sexual harassment.

Employers would avoid liability if they could prove that they took all reasonable steps to prevent harassment.

Key dates: The bill is due to have its report stage and third reading on 3rd February 2023.

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Worker Protection Amendment of Equality Act 2010 Bill

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We will continue to bring you the latest updates on the above bills and developments in employment law and HR throughout the year. Get in touch with our employment team by filling out the form below or calling:

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Employment Law Developments on the Horizon in 2023