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What To Expect In 2023 (And Beyond) – Employment Litigation … – Mondaq

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As we start a new year, we look ahead to provide you with a summary of key employment law reforms and developments to keep track of in 2023, and beyond.
Although the long-awaited Employment Bill still does not form part of the Government's current legislative agenda, there are now six (and counting) Private Members' Bills currently before Parliament. These are all confirmed as having government support, which means that they are eventually likely to be passed into law. A brief summary of the key provisions is set out below:
The current statutory reasons for rejecting a flexible working request will remain unchanged. The Bill does not include a 'day one' right to request flexible working as was originally anticipated. However, it has been confirmed by the Government that it will introduce this right via secondary legislation.
Each Bill is currently scheduled to reach the report stage and third reading in the House of Commons by the end of February 2023. In addition, secondary legislation will be required to implement the proposed employment rights in full. It is anticipated that the Bills will become law during the course of 2023, with any secondary legislation likely to follow in 2024.
Aside from the Private Members Bills above, one particularly significant development of note is the Retained EU Law (Revocation and Reform) Bill. This will automatically repeal any retained EU law so that it expires on 31 December 2023, unless express legislation is introduced to retain it. This potentially includes a raft of substantial employment regulations; for example, the Working Time Regulations 1998, Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), Agency Worker Regulations 2010 and more. The Bill will also provide courts and tribunals with greater discretion to depart from EU-derived domestic case law.
Latest reports suggest that it is likely the 2023 deadline will be relaxed, but the current backstop date under the Bill is 23 June 2026. In any event, over the coming years, we should expect to see government proposals and consultations on laws to amend or replace EU-derived law.
A more detailed overview of the Bill's impact is available here.
The recently introduced Strikes (Minimum Service Levels) Bill provides for minimum service levels during strike action to be established for a wide range of public services. Any employee who is required to work in order to meet the minimum service level but who participates in the strike will no longer be protected from automatic unfair dismissal. The Bill appears to be high up on the Government's agenda and has already passed its second reading in the House of Commons.
A more detailed overview of the Bill is available here.
In a separate development, the High Court has granted permission for trade unions to launch a legal challenge against regulations implemented in July 2022 allowing agency workers to replace staff during a period of industrial action. A judicial review hearing on these regulations is expected to take place in March 2023.
A new statutory Code of Practice on dismissal and re-engagement to address controversial 'fire and rehire' tactics is expected to be published and consulted on. The Government aims to clarify and give some legal force to its expectations on employers to behave fairly and reasonably when seeking to change employees' terms and conditions.
The new Code will require employers to hold fair, transparent and meaningful consultations on the proposed changes to employment terms. In addition, tribunals will be required to take the new Code into account when considering the fairness of dismissals and, if an employer unreasonably fails to comply with the Code, tribunals will have the power to uplift any compensation awarded by up to 25%.
Consultation on the new Code has been delayed but it is anticipated shortly.
The Information Commissioner's Office (ICO) called for views in August 2021 to help shape its new data protection and employment practices guidance, which will replace the ICO's existing Employment Practices Code. The ICO has confirmed that this will be replaced with a web-based hub of guidance covering various employment topics and issues.
The ICO will be releasing its draft guidance in stages then add to the resource over time. The first two drafts, both published in October 2022, relate to: (1) monitoring workers at work (this consultation closes on 20 January 2023); and (2) handling information about workers' health (this consultation closes on 26 January 2023). Going forward, we can expect further draft guidance from the ICO to be published for consultation.
In addition, there are proposals to replace UK GDPR with a new data protection framework. The Data Protection and Digital Information Bill was introduced in July 2022, with the aim of updating and simplifying the UK's current data protection framework. This Bill is currently paused, however, and it is not yet clear when (or if) it will be progressed.
The consultation on public sector exit payments (which closed in October 2022) sought views on a new controls process for high value public sector payments above £95,000 and amendments to the process for special severance payments (i.e. any payments in excess of an employee's statutory or contractual entitlements). The Government has not yet published its response to this consultation and there is no confirmed date for when the new process is due to take effect.
The consultation suggests that any exit packages exceeding £95,000 must be approved by the Secretary of State in advance. This figure of £95,000 includes any relevant statutory, contractual and discretionary payments due to the employee.
It is also recommended that all special severance payments, regardless of value, must be approved by the Treasury in advance. Further, it is proposed that special severance payments should be recoverable if the individual is re-employed in the public sector after a given period of time.
The draft guidance, issued alongside the consultation, sets out the process of approval and the criteria for public sector employers to consider before making an exit payment to an employee.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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