Employment law: what can we expect?

There is currently a raft of proposed changes to employment law which HR practitioners should be aware of when undertaking policy reviews.

Employment legislation

The following employment legislation has been passed, although we are still waiting for some of the detail to be published via separate Regulations:

Tips	The Employment (Allocation of Tips) Act 2023 will introduce new rules on managing tips, service charges and gratuities: find out more in our earlier blog.	Expected to come into force in 2024
Carer's leave	The Carer's Leave Act 2023 will introduce a new 'day one' right to unpaid carer's leave (expected to be one week every 12 months) for employees who are providing or arranging care for a dependant with a long-term care need.	No earlier than April 2024
Flexible working	The Employment Relations (Flexible Working) Act 2023: Allows employees to make two requests per year, instead of the current one Removes the requirement for employees to explain the effect of their proposals on the employer Reduces the 'decision period' from three to two months Introduces a requirement for employers to consult with an employee before refusing a request. The government has also indicated that regulations will provide that the right to request flexible working will apply from 'day one' rather than after 26 weeks' service, although this is not mentioned in the Act.	Expected to come into force mid-2024
Neonatal care leave and pay	The Neonatal Care (Leave and Pay) Act 2023 will introduce (i) a 'day one' right of up to 12 weeks' neonatal care leave; and (ii) a right to neonatal care pay for employees who meet minimum service and earnings thresholds.	Expected to come into force April 2025
Redundancy protection for pregnant women and new parents	The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 extends the redundancy protection period. It looks likely that this will apply from the point at which an employee informs their employer that they are pregnant until six months after her return to work. Protection will be similarly extended for those taking adoption leave and shared parental leave.	Awaiting regulations and implementation date
Strike action	The Strikes (Minimum Service Levels) Act 2023 allows regulations to be introduced setting minimum service levels during strikes in certain sectors (including health and transport). More detail is in our earlier blog (published before the legislation was passed).	Awaiting regulations for particular sectors
Retained EU law	The Retained EU Law (Revocation and Reform) Act 2023 was passed on 29 June 2023. There is no immediate impact on employment law, however, the principles of the supremacy of EU law; general principles of EU law; and directly effective EU rights will end from 31 December 2023. Going forward the higher courts will have more discretion to depart from EU-based case law, meaning that we may see, for example, some changes to what is included in holiday pay and working time.	31 December 2023
Non-disclosure agreements	The Higher Education (Freedom of Speech) Act 2023 will prevent higher education providers in England and Wales from entering into non-disclosure agreements in relation to sexual abuse or harassment, sexual misconduct and other types of bullying.	Unknown

Employment Bills

The following draft employment legislation is all currently progressing through the House of Lords:

Harassment	The Worker Protection (Amendment of Equality Act 2010) Bill 2022-23: Creates a duty on employers to take reasonable steps to prevent sexual harassment of their employees, backed up by a statutory code of practice. Originally included provisions making an employer liable for third-party (e.g. customer) harassment of employees, if the employer failed to take all reasonable steps to prevent it. However, the Lords removed these provisions and current indications are that the government will not proceed with them.
Right to request a predictable work pattern	The Workers (Predictable Terms and Conditions) Bill gives workers with 26 weeks' service the right to request a more predictable work pattern. Fixed term contracts of 12 months or less will be presumed to lack predictability. The process will be similar to that for flexible working requests.
Failure to prevent fraud	The Economic Crime and Corporate Transparency Bill introduces a new failure to prevent fraud offence which can apply if a relevant organisation did not have reasonable fraud prevention procedures in place.

Other proposals

Non-compete clauses	The length of non-compete clauses is going to be limited to three months. For more information see our previous blog.
Paternity leave	Changes to the statutory paternity leave regime are to be implemented 'in due course' (Parental Leave and Pay: government response to the Good Work Plan) e.g. leave will be able to be taken in two separate blocks of one week, and at any time within 52 weeks of the birth or placement for adoption.
Modern slavery	A Modern Slavery Bill is to be introduced to strengthen the requirement on businesses with a turnover of £36 million or more to publish an annual modern slavery statement (mandating the reporting areas to be covered and requiring statements to be published on the government registry).
Consultation on retained EU employment law reforms	A consultation on retained EU employment law reforms closed on 7 July 2023. It asked for views on proposals to: Remove the requirement on businesses to keep a record of all workers' daily working hours. Allow (i) businesses with fewer than 50 employees and (ii) transfers affecting less than 10 employees, to inform and consult directly with the affected employees where there are no existing employee representatives in place. Re-introduce the option of using ‘rolled-up holiday pay, and merge the separate 4 weeks ‘basic’ and 1.6 weeks ‘additional’ leave entitlements under the Working Time Regulations into one entitlement to annual leave. Read more about it in our earlier blog.
Other consultations	Consultations to be aware of are: A new statutory Code of Practice on dismissal and re-engagement Disability workforce reporting Calculating holiday entitlement for part-year and irregular hours workers The administrative control process for exits in the reserved public sector Non-compliance by umbrella companies A new right to reasonable notice of shifts Tax incentives for occupational health DWP consultation on occupational health Call for evidence on non-statutory flexible working ACAS consultation on Code of Practice on handling flexible working requests Mandatory ethnicity pay gap reporting - response published Scottish government consultations on a Scottish Human Rights Bill and the effectiveness of the public sector equality duty Information Commissioner consultations on monitoring at work and information about workers' health.

For more information in relation to any of the above, please get in touch with a member of the Employment and Immigration team. Workbox by Brodies users will find additional guidance at What's New? and on dedicated pages such as those on Tips and Carer's Leave.