New Laws in 2023
RECAP ON LEGISLATIVE CHANGES IN 2022 AFFECTING HR PRACTITIONERS AND WHAT NEW LAWS MAY BE ON THE HORIZON FOR 2023
We previously set out what we considered to be the big cases and themes of 2022. We have set out below the legislative and policy changes in 2022 and look forward as to what other changes may are anticipated for the year ahead.
NORTHERN IRELAND ONLY:
- Statutory Parental Bereavement Leave & Pay:
The right to take statutory parental bereavement leave and receive statutory parental bereavement pay came into force for births/stillbirths on or after 6 April 2022. As enacted, they currently replicate those in place in GB. However, by 6 April 2026 NI will differ to GB in that here we will:
- Extend the rights to those that also suffer miscarriage (defined as under 24 weeks);
- Remove the 26 week’s service requirement for pay, meaning that statutory parental bereavement pay will also be a Day 1 Right.
- Domestic Abuse and Safe Leave:
This Bill received Royal Assent on 12 May 2022 to the surprise of many. However, it was passed and will become law at some point in the future, but no date or indicative date has been provided for it to come into force.
When enacted it will entitle all employees and workers, subjected to domestic abuse, up to 10 days paid leave each year (called ‘Safe Leave’) as Day 1 Right.
Further details can be found at Domestic Abuse (Safe Leave) Act (Northern Ireland) 2022
It will be a significant new right and we will keep Members updated with its progresses.
- Zero Hour & Banded Weekly Work:
This is currently only at consideration stage in Northern Ireland following a Private Members Bill.
It proposes to introduce a hybrid of the provisions currently in place in Republic of Ireland where employees whose contracted hours do not reflect the reality of the hours they habitually work have a right to request to be placed in a banded hours which is more reflective of their working hours. There are different Bands starting from Band A: 3- 6 hours, Band B: 6 – 11 hours etc. There are also proposals around zero-hour workers which are in currently in place in Great Britain.
Due to insufficient Executive time under the last mandate, it has been rolled forward to be considered in the next mandate. Therefore, this will be considered if and when the Executive is restored. Further details can be found at Employment (Zero Hours Workers and Banded Weekly Working Hours) Bill
- Judicial Mediation:
The President of OITFET, Mr Noel Kelly heralds the introduction for judicial mediation as the roadmap for industrial tribunals in Northern Ireland, with Judicial training on the process due to be completed by the end of January 2023. It is intended that from April 2023, appropriate cases will be proposed for mediation with the parties involved asked if they wish to engage in the process as an alternative to adjudication following a Tribunal Hearing. It is expected that initially 30 cases will be selected. Judicial Mediation is currently in place in Great Britain and is considered to be a success amongst many.
ALL UNITED KINGDOM
- Changes to Right to Work Checks:
Several significant changes occurred last year which we kept Members updated about. On 30 September 2022, the temporary adjustments to the right to work checks ended. These had been put in place during covid to avoid business have to physically meet candidates. On 1 October 2022, the new system allowing employers to use IDSP (Identity Service Provider) to do digital right to work checks was introduced. The Home Office also updated its Right to work checks: an employer’s guide explaining the employer’s duties.
We will be hosting a free webinar on the right to work changes on 7 February 2023. Further details of the webinar and how to register will be sent to Members in due course.
- Fit Notes
On 6 April 2022, Digital Fit Notes were introduced across the UK – another legacy flowing from pandemic.
On 1 July 2022, as part of the government’s effort to reduce pressure on GP’s, the categories of persons who can sign Fit Notes was extended to include Health Care Professionals. With this the Government also updated Fit note Guidance for doctors, nurses, occupational therapists, pharmacists, physiotherapists, employers, and patients using fit notes (statements of fitness for work).
Anecdotally, we understand that for many Members, they have not seen much uptake from the new categories of persons signing Fit Notes.
GREAT BRITAIN ONLY
- Allowing Agency Workers to Replace Striking Workers
Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 came into force on 21 July 2022. The purpose of this legislation was to repeal the provisions that made it a criminal offence for agency workers to be used to replace striking workers. Unsurprisingly, a number of the trade unions have jointly mounted a legal challenge on the legality of the Regulations vis a vis the workers’ right to strike. This is currently being pursued by way of judicial review in the High Court. See High Court agrees to hear Judicial Review
It is important to note that the position remains unchanged in Northern Ireland and that agency workers cannot be used to replace striking workers. We believe that position is unlikely to change even if the Executive was restored.
- Transport Strikes (Minimum Service Levels) Bill
This is a Bill to ensure minimum service levels are maintained on transport services during industrial action.
On 5 January 2023, the Government has further announced that there will be new legislation to guarantee minimum levels of safety in critical sectors, which has again met with much criticism from the unions. The critical sectors could include fire, ambulance, rail services, health services, education, nuclear decommissioning, other transport services and border security.
The government will consult on the adequate level of coverage for these sectors, recognising that disruption to blue light services puts lives at immediate risk.
2023: GB PRIVATE MEMBER BILLS BACKED BY GOVERNMENT
There was an obvious lack of any mention of the long-promised Employment Bill in the Queen’s Speech in 2022. Instead, the Government has chosen to support a number of Private Member Bills as a way of ushering in change. There are currently five Bills receiving Government support which will become law in Great Britain. Whilst employment law is devolved, if the Executive was restored these areas may well be discussed here. Indeed, campaigners have long been asking for Carer’s rights.
This provides a Day 1 right for eligible employees to take 1 week of unpaid leave a year.
This provides a Day 1 right allowing employees to make a request for flexible working to include a variety of working arrangements (e.g. compressed hours annualised hour, staggered hours) as well as the traditional form of flexible work. It also will permit employees to put in up to 2 request each 12 moths. If business cannot accommodate the request, then the business must also consider if they can offer an alternative option rather than simply a blanket refusal.
Under this new Bill, the period of protection from redundancy would be extended, to protect expectant employees from the moment they inform their employer of their pregnancy until 18 months after the birth.
This provides qualifying employees with Day 1 Right to up to 12 weeks additional neonatal care leave and pay. It will apply to parents of new-borns admitted to hospital up to the age of 28 days and who have a continuous stay in hospital of seven full days or more. It is intended that the leave will be in addition to the other parental leave entitlements and could be taken within at least a 68-week window following their child’s birth.
This Bill would reinstate the similar, but previously repealed, liabilities for employers if an employee was sexually harassed by third parties (such as customers or clients) by placing an obligation that the employer must take all reasonable steps to prevent the third party from doing so. Third party sexual harassment was not repealed in Northern Ireland but is based on the employer being aware of at least two other acts before they become potentially liable for the third act. When enacted in GB, there will be no need for the employer to be aware of any previous incidents before it can potentially become liable for the third incident.
2023: ALL UK
This Bill has the potential to make seismic changes to laws with devolved nations deciding what should be retained. Under the Bill, unless steps are taken to retain the devolved EU law and codify it into existing laws, it will be repealed by 31 December 2023 (the sunset deadline). It was reported in early January 2023 that the Prime Minister Rishi Sunak is intent to proceed with that sunset clause deadline of 31 December 2023. This is so despite many government officials and lawyers protesting that it will create real gaps, uncertainly and very poor law.
Northern Ireland is in an even more precarious position that the other devolved Nations given that our Executive is not currently functioning and there are no imminent signs of that changing.
Sir Jonathan Jones, the former head of the government legal department, said that the government setting itself an arbitrary deadline, leaving a needlessly short space of time to review such a vast quantity of legislation, was a “terrible way to make law”.
We will be watching development on this very closely and will keep members updated with any developments.