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Private Members' Bills: Employment Law reform in 2023 and beyond

16 December 2022

The Employment Bill was initially announced in 2019 providing for reform across a range of employment law.  After constant delays we are finally starting to see some of the measures proposed in the Employment Bill being delivered through Private Members' Bills – many of which are being backed by the government.  

The key Bills to be aware of are summarised below:

Harassment

Worker Protection (Amendment of Equality Act 2010) Bill – The government announced its support for this Bill on 21 October 2022.  Key provisions from the Bill include:

  • Employers will be liable for the harassment of an employee during the course of their employment by a third party, unless the employer has taken all reasonable steps to prevent the harassment. 
  • A new duty on employers to take all reasonable steps to prevent sexual harassment of employees in the course of their employment. 
  • The provision for a compensation uplift of up to 25% where the duty has been breached by the employer.  

The new legislation on third party harassment will be particularly relevant to employers with employees in customer/client facing roles. 

The new duty on employers provides a focus on prevention of sexual harassment.  Employers should take preparatory steps and consider how they could demonstrate compliance with the newly proposed duty.  Updated policies and procedures, risk assessments, training and facilitated reporting are all likely to be useful steps to take.  Once available the long awaited Equality and Human Rights Commission statutory Code of Practice should provide more detail on the steps which employers should take.  In the meantime the EHRC Technical Guidance on Sexual Harassment at Work provides useful recommendations.   

Next step – the report stage and third reading are scheduled for 3 February 2023. 

Carer's leave

Carer's leave Bill – This Private Member's Bill makes provision for one week's unpaid leave for employees with caring responsibilities.  Employees will be eligible regardless of how long they have worked for their employer.  The government is supporting this Bill. 

Next step – the report stage and third reading are scheduled for 3 February 2023. 

Carer's leave - government press release

Flexible working

Response to consultation on flexible working

BEIS has published the government's response to the consultation on "Making Flexible Working the Default".   The government confirmed:

  • The right to request flexible working will become a "day one" right for employees. 
  • Employers will be required to consult with employees before rejecting a request.
  • Employees will be permitted to make two requests in any 12-month period (previously only one request could be made in any 12-month period).
  • Employers will be required to respond to requests within two months (previously employers had three months to respond). 
  • Employees will no longer be required to set out how the effects of the request might be dealt with by the employer. 

Employment Relations (Flexible Working) Bill – The government confirmed its support for this Private Member's Bill at the second reading debate.  The Bill will introduce the measures set out in the government consultation response, with the exception of the "day one" right provision.  The government will introduce secondary legislation to facilitate the right to request flexible working from "day one" when parliamentary time allows. 

Next step – the report stage and third reading are scheduled for 24 February 2023. 

Flexible working - government press release

Neonatal care

Neonatal Care (Leave and Pay) Bill – The government confirmed its support for this Bill on 15 July 2022.  The Bill makes provision for parents from "day one" of employment to each take up to 12 weeks of leave so that they can spend time with their baby who requires neonatal care after birth.  The new right is in addition to other leave entitlements such as maternity and paternity leave.   In order to be entitled to statutory neonatal pay for the period of leave the employee must have been employed for a minimum of 26 weeks at the relevant date and must pass the minimum earnings threshold.  The current drafting of the Bill allows for the leave to be taken within 68 weeks beginning with the date of the child's birth. 

Next step – the report stage and third reading are scheduled for 3 February 2023.  It is worth noting that a question was submitted to the government on 8 November 2022 asking what guidance would be available for businesses.  The government response confirmed its commitment to the leave and pay but stated that it would be necessary to make changes to HMRC systems and for employers and payroll providers to have sufficient notice to update their pay systems.  There would also need to be extensive secondary legislation and guidance in place.  The work is estimated to take approximately 18 months following Royal Assent, although there are reports that this timeframe could be reduced. 

Neonatal care - government press release

Tips

Employment (Allocation of Tips) Bill – This Private Member's Bill is supported by the government and is designed to ensure that tips, gratuities and service charges are allocated to workers.  A new statutory Code of Practice is expected which will provide businesses and staff with advice on how tips should be distributed.  Workers will also have a new right to request more information relating to an employer's tipping record. 

Next steps – the report stage will begin on 20 January 2023. 

Tips - government press release

Redundancy and maternity

Protection from Redundancy (Pregnancy and Family Leave) Bill – The government has also announced that it is backing this Bill.  Currently where an employer is making an employee on maternity leave, shared parental leave or adoption leave redundant they must offer them a suitable alternative vacancy where one is available.  The new Bill will extend this protection to cover both pregnancy and a period of time after returning to work from maternity leave.  The length of the protection is not set out in the Bill itself but the government has previously indicated that the protection will cover from the time an employee gives written notification of her pregnancy to 18 months after she has given birth.  Similar protection will be afforded to those taking shared parental leave or adoption leave. 

Next steps – the report stage is due to begin on 3 February 2023. 

Redundancy and maternity - government press release

Comment

The Private Members' Bills provide for a significant amount of change with regard to employment law. Employers should review staff handbooks and consider where amendments may need to be made and where, if at all, they are prepared to go beyond the reform required. Employers should also consider what training may need to be implemented to help roll out the changes. 

Further reform

Although not the subject of this update the Retained EU Law (Revocation and Reform) Bill also provides the potential for further reform of employment law.  The Bill aims to sunset the majority of retained EU law so that it expires on 31 December 2023 (with a possible extension to 23 June 2026).  Key employment legislation such as the Working Time Regulations 1998, the Agency Worker Regulations 2010 and the Transfer of Undertakings (Protection of Employment) Regulations 2006 could all be impacted.  We will have to wait and see how this Bill progresses through Parliament and whether any amendments will be made.  We will keep you updated.

Should you have any queries arising from the above update please do not hesitate to get in touch.

Further Reading