New legislation over the past 24 months or so has been dominated by responses to the pandemic. This as well as political turmoil and changes of administrations has meant little new Employment related legislation has been passed. It looks as if the long awaited Employment Bill, first introduced under the Theresa May administration, remains in the long grass for time being, however other legislative measures are likely to make their passage through Parliament in 2023. Some specific emergency measures are being introduced in response to the widespread industrial action in the Public Sector and in connection with Union activities. Of more generalised application, however, the following are worth keeping an eye out for:-
1. Retained EU Law (Revocation and Reform) Bill 2022-23
This Bill provides for significant changes to the current status, operation and content of all retained EU Law. If enacted in 2023, the Bill could radically reshape the employment law landscape and remove or alter long-established employment rights and protections. A key feature of the Bill in its current form is the so called “sunsetting” clause. This results in automatic revocation of all EU-derived subordinate legislation at the end of 2023. This happens by default under the Bill, unless the government takes specific steps to preserve or replace it by introducing domestic legislation. The Bill will affect all areas of law but on the Employment front in particular, the Working Time Regulations 1998, the Agency Workers Regulations 2010, Equal Pay and TUPE, to name but a few.
The Bill appears to be as politically divisive, even within the government, as Brexit has proven. It has been met with criticism from some quarters, not least regarding the very limited timetable for the sunset provision. On the Employment front, it risks leaving a great deal of uncertainty as to where certain laws will end up and what consequences (intended or otherwise) may result. Certainly one to keep an eye one.
2. Draft Statutory Code of Practice on dismissal and re-engagement
Whilst not wanting to outlaw outright the practice of “fire and rehire”, the government intends to publish a draft Statutory Code of Practice in the “near future”. Under the proposed guidance, the practice should only be considered as an absolute last resort if changes to employment contracts are critical and voluntary agreement is not possible. In terms of the limited circumstances where dismissal and re-engagement may be appropriate, this may be if the alternative is the company closing and everybody losing their jobs. In terms of sanctions, one option mooted is for tribunals to take the code into account and award uplifts to compensation if the Code has not been followed. Watch this space for more details following publication.
3. Extending redundancy protection for women and new parents
The government is supporting the Protection from Redundancy (Pregnancy and Family Leave) Bill 2022-23, a Private Members’ Bill which aims to prohibit redundancy during pregnancy and maternity, adoption or shared parental leave and for six months after the end of the pregnancy or family-related leave.
4. Employee Data Protection
The government has announced its intention to replace the UK GDPR with a
“British data protection system”. This will be introduced by means of amending the Data Protection and Digital Information Bill and is likely to steer a move away from some of the perceived inconveniences of the current EU derived regime.
We are also likely to see updated data protection and employment practices guidance in 2023 from the Information Commissioner’s Office (finally replacing the ICO’s employment practices code, supplementary guidance and the quick guide, which are still based upon the old 1998 Data Protection Act).
5. Human Rights Act 1998
In June 2022, the government introduced the Bill of Rights Bill 2022-23, which aims to repeal the Human Rights Act 1998 and create a new domestic human rights framework. After being dropped by Liz Truss’s government, the Bill of Rights Bill is now resuming its passage through Parliament. It is another Bill which has divided opinion and it remains to be seen whether it will survive unscathed.
6. Tipping, gratuities, cover and service charges
The government is supporting the Employment (Allocation of Tips) Bill 2022-23, another Private Members’ Bill, that requires employers to pass on 100% of tips to staff. A statutory Code of Practice on Tipping is also included in the Bill. The remaining stages of the Bill will be considered on 20 January 2023.
In addition to proposed legislation there are a number of high profile appeal decisions awaited some of the most notable of which are as follows:-
7. Does a 3-month gap interrupt a series of unlawful deductions?
In December 2022, the Supreme Court heard Chief Constable of the Police Service of Northern Ireland and another v Agnew and others. The Northern Ireland Court of Appeal had held that a gap of more than three months would not interrupt a “series” of unlawful deductions in an underpaid holiday pay claim, meaning that the claim could be backdated to beyond the gap. The judgment differed from the renowned EAT decision in Bear Scotland Ltd v Fulton and other cases which held that there will be a break in the chain of any “series of deductions” where a period of more than three months has elapsed between the deductions. This had the effect of limiting the scope of many claims which were made for underpaid holiday pay, where the amount paid had not been based upon average earnings including commission and overtime and such like. The Agnew case was not binding in the British courts, having been heard in Northern Ireland but it was likely to be persuasive. The Supreme Court judgment will be binding throughout the United Kingdom and therefore is highly significant.
8. If an employee resigns and the employer then pays in lieu of notice in reliance on a contractual clause, are they dismissed for unfair dismissal purposes?
Within the next month the Court of Appeal will hear an appeal in Fentem v Outform EMEA Ltd. The EAT had held that it was bound by the 1994 decision in Marshall (Cambridge) Ltd v Hamblin [1994] that an employee is not dismissed for unfair dismissal purposes under section 95 of the Employment Rights Act 1996 when, following their resignation, the employer relies on a contractual payment in lieu of notice provision to bring forward their termination date. The EAT held that the reasoning in Marshall was problematic, but it could not depart from it because the decision was not manifestly wrong. The Court of Appeal will hopefully provide some welcome clarification on the status of the decision in Marshall.
We will provide updates as we learn more of the developments in these highlighted areas and in the meantime if you would like more information about any of these matters or other employment law advice please do get in touch with one of the Employment Team.
(This article was correct as at 10th January 2023)
