There is still no sight of the long-awaited Employment Bill but that doesn’t mean nothing is happening in employment law. The government is pushing ahead with the Retained EU Law (Revocation and Reform) Bill, which, if passed, will allow it to “set fire” to all employment and health and safety legislation derived from the EU by the end of 2023. It is also putting its weight behind several private members’ bills which are currently going through parliament that will deliver benefits to pregnant women, new parents and carers.
Retained EU Law (Revocation and Reform) Bill
Under the European Union Withdrawal Act, most UK laws in existence on or before 31 December 2020 were preserved.
The Retained EU Law (Revocation and Reform) Bill will repeal all EU-derived laws by the end of 2023 (although the government will be able to extend that deadline to 2026). It will then be able to make sweeping changes to established laws in respect of working time and holidays, discrimination, TUPE, agency workers, part-time workers and fixed-term employees.
The government will have to legislate to reintroduce (or adapt) the EU laws it wants to keep before that very tight deadline. Employment protections are not a priority and it is possible that important rights will fall off the statute books without anything in place to replace them. This will create uncertainty and could result in an increase in staff dissatisfaction, grievances and employment claims.
New protection against redundancy
Pregnant women and new parents will receive additional protection from being made redundant under the Protection from Redundancy (Pregnancy and Family Leave) Bill.
Under current rules, before making an employee on maternity leave, shared parental leave or adoption leave redundant, employers are obliged to offer them a suitable alternative vacancy where one exists, in priority to anyone else who is provisionally selected for redundancy.
The new Bill will extend protection so that it applies to pregnant women before they start maternity leave and for six months after they return to work. It will also protect new parents returning to work from adoption or shared parental leave.
Paid time off for parents of sick and premature babies
The Neonatal Care (Leave and Pay) Bill will allow parents to take up to 12 weeks of paid leave to enable them to spend more time with babies requiring care.
Neonatal care leave and pay will be available as a “day one” right for parents of babies who are admitted into hospital up to the age of 28 days and who have a continuous stay in hospital of seven days or more.
Carer’s leave
The Carer’s Leave Bill will introduce one week’s unpaid leave to help employees with long-term caring responsibilities balance these with their paid work. It will be a “day one” right and leave can be taken in one single block or on individual days.
New rules on combating workplace harassment
The government will introduce a new obligation on employers to play an active role in preventing workplace harassment by employees, customers and clients. It has not yet published details of how this will work in practice.
Once in force, employers will have to update their diversity and inclusion policies and ensure that the training they provide to their staff complies with the new law.
Changes to rules on flexible working
The government has announced that it will make changes to the right to ask for flexible working. It will become a “day one” right: employees will be able to make up to two requests each year and the employer must deal with the application (and any appeal) within two months. Employers will still be able to turn down requests if they have a business reason for doing so on the same grounds as currently exist.
Extra bank holiday
To celebrate the coronation of the King, there is an additional bank holiday on Monday, 8 May 2023. Employers will need to decide if their staff are entitled to take an additional day’s paid leave either on that date or at another date in the holiday year.
The starting point is to look at the holiday clause in the employee’s contract of employment. If the contract states the employee is entitled to, for example, 28 days’ holiday, which includes all statutory and bank holidays, employers are not obliged to give them an extra day’s paid holiday. The same will apply if the contract just sets out the number of days holiday the employee can take and does not mention bank holidays at all.
Conversely, if the contract states they are entitled to, for example, 20 days of paid holiday plus statutory and bank holidays, employers will have to allow them to take an additional day’s leave. But if the contract states they are only entitled to the statutory and bank holidays that are usually observed in England and Wales, they are not entitled to the extra day.
National living wage and national minimum wage
There are some hefty wage increases employers will need to factor in. From April 2023, workers aged 23 and over will get £10.42 per hour, those aged between 21 and 22 will receive £10.18 an hour, those aged between 18 and 20 £7.49 an hour; 16- and 17-year-olds will receive £5.28 an hour and apprentices under the age of 19 or in their first year will receive £5.28 an hour.
So, all in all, 2023 looks like another year of change. Employers in the property sector as in others, need to take note.
Sybille Steiner is a partner and Joanne Moseley is a lead practice development lawyer in the employment team at Irwin Mitchell
