Employment Law Update 2023
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Employment Law Update 2023
Flexible working
Courtesy of the pandemic, flexible working has been fairly high on most employers’ agendas for some time now. The government has confirmed in its response to its consultation, ‘Making flexible working the default’, that a number of changes will be affecting the flexible working regime. Flexible working will become a day one right, and while the eight business grounds for rejecting a flexible working request will remain as they are, there will be a new obligation on employers to consult with the employee to explore the available options before rejecting a request.
In addition, instead of only being able to make one statutory request for flexible working in a 12-month period, an employee will be able to make two. Employers currently have three months within which to respond to the request; this will be reduced to a two-month period to make the process more streamlined.
The changes are expected to be in law in 2023.
The Retained EU Law (Revocation and Reform) Bill
The Bill provides that all retained EU law contained in domestic secondary legislation (for example, the Working Time Regulations and TUPE) and retained direct EU legislation will be revoked on 31 December 2023 unless a decision has been made to preserve it. It allows for an extension of the revocation date of certain legislation to a later date (which must be no later than the end of 23 June 2026) to enable departments to have additional time, where necessary, to assess whether some retained EU law should be preserved.
Consultation issued on calculating holiday entitlement for part-year and irregular hours workers
The government has just launched a consultation on calculating holiday entitlement for part-year and irregular hours workers as a result of the Supreme Court’s decision last year in Harpur Trust v Brazel. The Court held in Harpur Trust that holiday entitlement under the Working Time Regulations 1998 for permanent part-year workers should not be pro-rated so that it is proportionate to that of a full-time worker. As a result of this part-year workers are entitled to a larger annual paid holiday entitlement than part-time workers who work the same total number of hours across the year.
The government proposes introducing a holiday entitlement reference period of 52 weeks to ensure that holiday entitlement and pay is directly proportionate to time spent working. It proposes to include the weeks in which workers perform no work in the holiday entitlement reference period.
The introduction of carer’s leave
This Bill will introduce a new and flexible entitlement of one week’s unpaid leave per year for employees who are providing or arranging care and will be available to eligible employees from the first day of their employment. They will be able to take the leave flexibly to suit their caring responsibilities and will not need to provide evidence of how the leave is used or who it will be used for. Employees will be protected from dismissal or any detriment as a result of having taken time off.
The new entitlement to statutory carer’s leave will rely on the carer’s relationship with the person being cared for, namely a spouse, civil partner, child, parent, a person who lives in the same household as the employee (other than by reason of them being their employee, tenant, lodger, or boarder) or a person who reasonably relies on the employee for care. It will also depend on the person being cared for having a long-term care need.
Neonatal leave and pay
Neonatal care leave will be available to employees from their first day in a new job and will apply to parents of babies who are admitted into hospital up to the age of 28 days, and who have a continuous stay in hospital of 7 full days or more. Parents will have a right to neonatal care leave of at least one week and up to a maximum of 12 weeks regardless of length of service, and parents with at least 26 weeks’ continuous service will have a right to receive neonatal care pay at a prescribed statutory rate. Parents taking neonatal care leave will have the same employment protections as those associated with other forms of family related leave, including protection from dismissal or detriment as a result of having taken leave.
Sexual harassment in the workplace
The Bill introduces a new duty on employers to take all reasonable steps to prevent sexual harassment in the workplace and reinstates employer liability for third party harassment. If the Bill is passed in its current form, an employee would be able to bring a third-party harassment claim against their employer after a single incident of harassment by e.g. a client or customer. Previously the legal test only imposed liability after the third incident which meant that successful third-party harassment claims were rare.
The Bill contains a 12-month delay period once it has passed, so it won’t come in until 2024 at the earliest.
Consultation on Statutory Code of Practice on Dismissal and Re-engagement
The government launched a consultation on a statutory Code of Practice on Dismissal and Re-engagement on 24 January. The Code sets out detailed steps that employers should take when seeking to make changes to contractual terms, including providing information, engaging in meaningful consultation and exploring alternatives. It makes it clear that employers should not use threats of dismissal as a negotiating tactic. Employment Tribunals will be required to take the Code into account where relevant in any proceedings and may adjust compensation by up to 25% to reflect unreasonable non-compliance. The consultation on the Code closes on 18 April.
Cold Weather: HSE Guidance
HSE Guidance |
| Temperatures in indoor workplaces are covered by the Workplace (Health, Safety and Welfare) Regulations 1992, which place a legal obligation on employers to provide a “reasonable” temperature in the workplace, but which does not stipulate a legal minimum and maximum working temperature. The Approved Code of Practice contained within the Workplace (Health, Safety and Welfare) Regulations stipulates that for indoor working the minimum temperature should be at least 16°c, or 13°c if much of the work involves “rigorous physical effort”. HSE guidance states that the following steps can help keep people as comfortable as possible when working in the cold:
You can also change work systems to limit exposure by introducing systems such as flexible working patterns or job rotation and provide sufficient work breaks to allow workers to get hot drinks or warm up in heated areas. Workplace temperatures should be monitored, and particular regard should be paid to those employees with medical conditions such as Raynaud’s phenomenon which may be triggered by the cold. The contents of the risk assessment, including the control measures, should be shared with employees to ensure they have sufficient information and instruction. The HSE has published additional guidance for those working in very high or low temperatures, for example on heat stress, dehydration or cold stress. Working from home Employers’ health and safety duties towards staff equally apply to staff working from home, either partly, under a hybrid model, or where they are entirely home-based. Employers are required by law to assess risks and do whatever is ‘reasonably practicable’ to safeguard their workers’ health and wellbeing to ensure, so far as possible, a safe working environment including a reasonable temperature in the workplace. Employers aren’t obliged to pay towards heating bills or provide heaters for the employee’s home, but should suggest alternatives for staff who can’t afford to maintain a safe working temperature, such as coming into the office. Those who are in receipt of certain Government benefits may be eligible to apply for the Cold weather payment, government scheme, where the average temperature in their area is recorded as, or forecast to be, zero degrees celsius or below over seven consecutive days. Outdoor working For those working outdoors, employers will need to carry out an adequate risk assessment, to identify the necessary control measures. Control measures may include the provision of personal protective equipment, suitable work breaks, mobile warming rooms and training employees to recognise the early symptoms of cold stress, generally cough or body aches. Reducing the risk of slip and trip accidents HSE guidance on reducing the risk of slip and trip accidents, including due to icy conditions, includes:
As always, first conduct a risk assessment to see what you need to put in place. |
10 Years in Business – 2023
2023 sees us celebrate our 10th year in business. I would like to thank you all for your business and support.
We are launching our new logo and branding, with our special 10 year logo, which will be used throughout the year.
We will be offering some special offers to our clients during 2023, so please give your eye out for emails.
As always, any questions please give me a call on 07929506143.
2023 New Rates
2023 Increases | ||||||||||||||||||||||||||||
The rates which will apply from 1 April 2023 are as follows:
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