January 2023 Employment Law Update

Our monthly employment law update brings you the latest top picks of employment law developments that may affect your business.

Remember though, we’re always here to answer any questions you have and to help you navigate the wondrous world of employment law in managing your people!

This month we cover:

• Significant changes in employment law in 2023 – Potentially the biggest shake-up in a generation!
• Statutory Code of Practice on Dismissals and Re-Engagement.
• Extra Bank Holiday 8th May 2023
• Case Law with Implications for your Business.
• First Covid case to reach the Court of Appeal
• Things to remember…

1. Significant changes in employment law - What’s coming up in 2023?

Wow, there’s certainly lots happening in the world of employment law this year, more so than any other time I can remember. 2023 is the year there is going to be some significant developments and major changes whether as a result of post Brexit reform, a whole load of private members bills or forthcoming key case law decisions.

Don’t worry though, we’ll be keeping a very close eye on the progress of it all, keeping you updated and making sure you understand what it means for your business as and when things happen throughout 2023. We’ll consider what policies and procedures need to be updated too.

So, what can you expect in 2023?

1.1 Employment Bill

Although the draft form of this long-awaited bill will probably still not materialise in 2023, there are lots of reforms that the bill promised that are now being taken forward through several private members bills instead which the government is backing.

These include:

• Carer’s Leave Bill: This gives employees from day 1 of employment, the right to take one week’s unpaid leave in any 12-month period to provide or arrange care for a dependant with a long-term care need.
• Neonatal Care (Leave and Pay) Bill: This gives employees from day 1 of employment, the right to a minimum of one week’s leave and pay where they have responsibility for children receiving neonatal care.
• Employment (Allocation of Tips) Bill: This will bring into law the directive that the total amount of tips, gratuities and service charges must be allocated fairly between workers without any deductions.
• Protection from Redundancy (Pregnancy and Family Leave) Bill: This gives pregnant workers and new parents more protection in redundancy situations. Today, any employee facing redundancy whilst on maternity, adoption or shared parental leave must be offered a suitable alternative role if there is one and given priority. The new regulations will extend this protection to cover the period from when a woman first tells her employer she’s pregnant until 18 months after the birth and in addition cover mothers who suffer a miscarriage before notifying the employer they are pregnant.
• Employment Relations (Flexible Working) Bill: This gives employees from day 1 of employment, the right to make two flexible working requests in a year (currently only 1 is allowed) and says employers must make a decision within 2 months of a request and only after consulting with the employee on alternative options if they are thinking of refusing the request. In addition employees won’t have to state in their application how the company might deal with the impact of their request.
• Worker Protection (Amendment of Equality Act 2010) Bill: This creates a new employer’s liability and a duty on employers to take all reasonable steps to prevent sexual harassment of their employees by third parties. It introduces a compensation uplift where that duty has been breached.

1.2 Retained EU Law (Revocation and Reform) Bill

This significant Bill has the potential to have a huge impact on employment law because it essentially says that any employment laws derived directly or indirectly from the EU will expire on 31 December 2023. Even if that deadline extends (which we’re hearing is highly likely) we’ll no doubt see consultations and proposals through this year on new UK laws to replace or possibly scale back EU-derived laws. Let’s just hope it’s not too quick as that won’t make way for well-thought-out laws meaning even more legal challenges as employers and the courts get their heads around the changes.

It will affect a huge amount of UK employment law with impacts to regulations such as:

• Transfer of Undertakings (Protection of Employment) Regulations 2006,
• Working Time Regulations 1998,
• Agency Worker Regulations 2010
• Fixed Term Employee Regulations 2002.
• Maternity and Parental Regulations and more.

The Bill would also allow the Courts and Tribunals to move away from any case law precedents which have arisen as a result of EU-derived law.

We will most certainly be keeping a very close eye on the progress of this Bill including any proposed repeal, amendment or retaining of regulations and keep you up to date!

2. Statutory Code of Practice on Dismissals and Re-Engagement

Last year, we heard that the government would be publishing a Statutory Code of Practice on dismissal and re-engagement in 2022. We’re still waiting but it’s said that the draft code will be released in the "near future".

Tribunals and Courts will have to take this new code (as and when it’s implemented) into account and can apply an uplift of up to 25% of an employee’s compensation where the Code applies and the employer has unreasonably failed to follow it.

3. Extra Bank Holiday 8th May 2023

There will be an extra bank holiday on 8 May 2023 to mark the Coronation of King Charles III.

However, whether workers will be entitled to have this day off and whether it will be paid will depend on the wording of their contracts.

There are several ways in which bank holiday entitlement can be expressed in the contract, which will have differing impacts so you’ll need to check what yours say. The following highlights some of the possible variations, in relation to a full time, 5 day per week worker using the statutory minimum holiday allowance for illustration purposes.

1. 20 days holiday plus bank holidays: This entitles your employee to 20 days paid holiday plus all the bank holidays on top i.e. if there are additional bank holidays granted such as the Kings Coronation day, they will be entitled to those too.
2. 20 days holiday plus 8 bank holidays: This entitles your employee to 20 days paid holiday with 8 bank holidays on top taking them to 28 days. If there are additional bank holidays granted, they will still only be entitled to 8 as paid leave. If they don't work the additional bank holiday such as the day of the King’s Coronation, you would need to deduct that day from their annual leave entitlement.
3. 28 days holiday including bank holidays: This entitles your employee to 28 days paid holiday including any bank holidays as part of that, regardless of how many bank holidays there are in any given year so you’d deduct the bank holidays from the 28 days where they don’t work them. However, be aware that if your employees work some bank holidays, you'll need to give them that day as holiday in lieu to be taken at some other time.
4. 28 days holiday including 8 bank holidays: This entitles your employee to 28 days holiday but with 8 bank holidays included as part of the 28 days. If there are additional bank holidays granted, they will still only be entitled to 8 as paid leave. If they don't work the additional bank holiday such as the day of the King’s Coronation, you would need to deduct that day from their annual leave entitlement.

 

4. Case Law with Implications

4.1 First Covid case to reach the Court of Appeal.

In this case (Rogers v Leeds Laser Cutting) an employee who hadn’t been employed for long, remained off sick during the pandemic after his Covid isolation note had expired so was dismissed. He took the employer to the tribunal claiming that he was automatically unfairly dismissed as he had only remained off sick due to a fear of ‘serious and imminent’ danger to his health and safety due to his medical condition.

The Court of Appeal disagreed, holding that he had not been automatically unfairly dismissed because they felt his concerns were more general life specific rather than work specific. In making that decision they asked the following questions:

1. Did Rogers believe that there were circumstances of serious and imminent danger at work? If so:
2. Was it reasonable for him to have those beliefs? If so:
3. Could the employers have reasonably avoided that danger? If not:
4. Did Rogers refuse to return to work because of the perceived danger?
5. If so, was that the reason for his dismissal?

 

Takeaways – What does this mean for employers?

It’s worth all employers knowing that despite the Rogers case failing, the court said that “employees should be protected from dismissal if they absent themselves (from the workplace) in order to avoid… …danger.".

The court also said that it is sufficient that it’s enough that the employee has a reasonable belief in the existence of danger rather than there needing to be actual danger.

Bear this in mind when dealing with any employees who are citing a fear of some form of danger to their health and wellbeing as a reason for sickness or not attending work and ask yourself the 5 questions above.

5. Things to Remember from previous updates…

National Living & Minimum Wage Increases on 1st April 2023.

The National Living Wage (the rate that applies to workers aged 23 and over) is set to increase from £9.50 to £10.42 per hour from 1 April 2023.

Also announced were the new rates of the National Minimum Wage from 1 April 2023 as follows:

• £10.18 per hour for 21- to 22-year-olds;
• £7.49 per hour for 18- to 20-year-olds;
• £5.28 per hour for 16- and 17-year-olds; and
• £5.28 per hour for apprentices.

Check how much you’re paying your lower-paid workers and make sure you bring them up to these new rates on 1st April 2023.

Statutory Sick Pay & Family Leave Pay Increases

On 2nd April 2023, Statutory Sick Pay will increase from £99.35 to £109.40 per week.

On the same date, Statutory Maternity, Adoption, Paternity and Shared Parental Pay will increase from £156.66 to £172.48 a week.

For more information, click here.