The first few months of 2023 have been tumultuous for the UK.
Industrial strikes have been front and centre in the news, with staff from the healthcare, transport, education, and mail sectors all taking to the picket line to protest pay rates and conditions. In the background, we’ve seen changes to things like the Energy Bill Relief Scheme as the cost-of-living crisis rages on. If the first month of 2023 has been this chaotic, we think it’s well worth getting prepared for the rest of the year early. As always, one of the best ways that businesses can stay ahead is to have their finger on the pulse of employment law. Read on for our summary of the major employment law updates that you need to know about for the coming months.
We recommend you visit Gov.uk for further information on how these employment law updates apply to your specific business situation.
Changes to statutory payments
This year, rates already increased to:
- National Minimum Wage: £10.42 an hour from 1 April 2023
- Statutory family leave: £172.48 a week from 2 April 2023
- Statutory sick pay: £109.40 a week from 6 April 2023
Payroll software takes the admin out of pay changes. Learn more about how we can automate this process to make April that much easier on the Gov.uk
Automatic unfair dismissal and COVID-19
A new case taken to the Court of Appeal has given further insights into unfair dismissal and Covid-19.
In Rodgers v Leeds Laser Cutting Limited, the court found that an employee who refused to return to his workplace in April 2020 due to concerns about COVID-19 was not automatically unfairly dismissed.
In this case the employee claimed that the decision to dismiss him was automatically unfair because his refusal to return to work was due to him being in circumstances of serious and imminent danger.
The Court of Appeal upheld the original tribunal’s conclusion that, although the employee had genuine concerns about the virus, when considering a number of factors (such as the size of the warehouse he worked in and the small team of employees) he did not reasonably believe that there were circumstances of serious and imminent danger. He was therefore not automatically unfairly dismissed.
The Court of Appeal also clarified that there is no requirement that the danger should only be in the workplace (an employee could, for example, have a reasonable belief that there is danger on the bus into work). This did not change the outcome in this case, but employers should bear it in mind if they are considering terminating an employee whose attendance or performance is allegedly impacted by a “serious and imminent danger”.
Potential changes to rights around flexible working
Flexible working is increasingly becoming an expectation of employees, and the proposed Employment Relations (Flexible Working) Bill could further solidify this expectation in the law. If passed, employees will have a right to request flexible working for at least one day a week. They will have the right to make this request twice every 12 months (they currently have the right to make this request once).
This Bill would also require employers to consult with employees before refusing their flexible working request and to make decisions within two rather than three months. It will also remove the requirement for the employee to explain in the statutory request what effect the change would have on the employer and how that might be dealt with.
Additional bank holiday for King Charles’ coronation
An additional bank holiday has been announced to mark King Charles’ coronation. This will fall on Monday the 8th of May 2023.
Some employers will be wondering whether they have to allow their employees to take the additional bank holiday, and the answer to that is (as it often is with employment law) it depends. Employers should check their employment contracts; if the contract entitles the employees to take leave on all bank holidays and public holidays then they will be contractually obliged to allow the employees to take the extra day of leave.
For example if a contract simply states “the employee is entitled to 25 days’ holiday plus bank holidays”, then they will be entitled to the extra day. However, if the contract was to say “the employee is entitled to 25 days plus the usual bank holidays” then the employee would not be entitled to the extra day. Equally if the number is given inclusive of bank holidays, e.g. 30 days holiday including bank holidays, then the employee would not be entitled to the extra day.
Even if the employees are not contractually entitled to the additional bank holiday, employers should consider allowing their teams to take the day as a gesture of goodwill and to boost staff morale.
Additional protections against harassment and sexual harassment could be introduced
The Government has backed a Private Members’ bill which introduces a statutory duty on employers to prevent sexual harassment and reinstates employer liability for harassment by third parties.
If the Bill is passed, the duty will require employers to take all reasonable steps to prevent sexual harassment at work. Breach of the duty will be enforceable by the Equality and Human Rights Commission, which intends to produce a statutory Code of Practice to support employers with the changes.
Employees themselves will not be able to bring a stand alone claim for a breach of this duty, but if they bring a successful claim for sexual harassment and the employment tribunal rules that the employer is in breach of the duty then it will have the power to award an uplift in compensation (by up to 25%).
Additionally, if the Bill is passed, employers will be liable if a third party harasses an employee in relation to a protected characteristic in the course of their employment and the employer has failed to take all reasonable steps to prevent the harassment from happening.
Unlike the provisions for third party harassment that were previously in force under the Equality Act 2010, there is no requirement for there to be two or more incidents of harassment under the new Bill, so employers will need to consider the particular risks associated with their business and take steps to prevent possible harassment.
