Employment law changes 2023: Progress report for HR

As we plunge into autumn, HR professionals could be forgiven for losing track of all the forthcoming employment law changes and what they mean for their organisation. To assist HR with planning for the rest of the year and beyond, we round up the major employment law changes in the pipeline as of September 2023.

Reforming the right to request flexible working

What is changing?

The Employment Relations (Flexible Working) Act 2023 provides for changes to some of the rules on statutory flexible working requests.

What are the main features?

• Allow employees to make two statutory flexible working requests every 12 months (the current limit is one).
• Reduce the time limit for employers to deal with statutory flexible working requests from three to two months (although this can be extended by agreement with the employee).
• Require employers to consult an employee before refusing a request.
• Remove the need for employees to explain the effect of the proposed change or how that could be dealt with when making a request.

Employees must currently have 26 weeks' continuous service to be entitled to request flexible working. The Government has confirmed its intention to introduce legislation to take forward measures including making the statutory right to request flexible working a "day one" right.

On 12 July 2023, Acas launched a consultation in relation to proposed updates to its code of practice on handling flexible working requests. The new draft code of practice "seeks to encourage a more positive approach to flexible working", and is drafted to reflect "significant shifts in ways of working ... as well as anticipated changes to the law". The consultation closed on 6 September 2023.

What will this mean for employers?

It is more important than ever that employers get their approach to flexible working right, given the sea change in attitudes towards flexible working (with the proliferation of the hybrid working model) and the competitive advantage that employers that offer flexible working can get in the labour market.

In advance of the legislation taking effect, employers should:

• review their flexible working policies to ensure that they reflect the new requirements;
• train managers on how to handle flexible working requests in light of the new requirements; and
• plan communications to staff to reflect the changes.

HR professionals have an important role to play in supporting their organisation's change of culture when it comes to flexible working, for example by:

• putting the business case for flexible working to senior leadership;
• training line managers on handling flexible working requests; and
• if they have introduced a hybrid working model, ensuring its smooth running and the effective promotion of the availability of hybrid working as a candidate attraction and employee retention tool.

Timetable

The Employment Relations (Flexible Working) Act received Royal Assent on 20 July 2023. The Act, together with the day one right to make a request, are due to be brought into force through secondary legislation in the form of regulations. The Government has indicated that the changes are likely to take effect approximately 12 months after Royal Assent (so anticipated summer 2024). 

Carer's leave

What is changing?

The Carer's Leave Act 2023 provides employees who have caring responsibilities for dependants with a long-term care need with a right to one week's unpaid leave per year.

What are the main features?

• Introduce one week's unpaid leave each year for employees who are carers, for the purpose of caring for a dependant, or arranging care for a dependant, with long-term mental or physical health needs.
• It will be possible to take the leave in periods of a day or half a day.

Further details of how the new right will operate will be set out in regulations.

What will this mean for employers?

Employers should be prepared to incorporate carer's leave into their family-friendly policies and procedures. The other key aspects of the new right are that:

• carer's leave will be a "day one" right, meaning that staff will not require a minimum period of service;
• entitlement will depend on the relationship between the carer and the person being cared for, with a focus on dependants with a long-term care need or terminal illness;
• eligible employees will be able to take five days' carer's leave per year, as individual or half days; and
• employers will be able to ask employees to self-certify that they are eligible, with no evidential requirements (for example details of the dependant's condition or caring activities being undertaken).

Timetable

The Carer's Leave Act received Royal Assent on 24 May 2023. The provisions of the Act are subject to secondary legislation (regulations) being introduced and brought into force. It is not yet known when regulations will be introduced.

Neonatal care leave

What is changing?

The Neonatal Care (Leave and Pay) Act 2023 will provide parents whose babies need neonatal care after birth with up to 12 weeks' neonatal care leave. The leave will be paid if the parent meets minimum service and pay requirements.

What are the main features?

• To provide new parents whose baby requires neonatal care for at least seven continuous days and which starts within 28 days of birth with the right to take up to 12 weeks' leave in addition to maternity or paternity leave.
• This will be a "day one" right, although pay will be subject to minimum service and pay requirements.

What will this mean for employers?

Employers should be prepared to incorporate this new type of leave into their family-friendly policies and procedures. The other key aspects of the proposed new right are that:

• it will be a "day one" right;
• it is expected to be used mainly to assist new parents whose baby requires neonatal care in hospital;
• it will be available to parents of babies who are admitted up to the age of 28 days, where the baby has a continuous stay in hospital of at least seven full days; and
• statutory neonatal pay, which would be set at the same rate as other family-friendly statutory payments, would have a qualifying period of 26 weeks' continuous service.

Notice and evidence requirements are expected to be "light touch" to take account of the sensitivity of the situation.

Timetable

The Neonatal Care (Leave and Pay) Act 2023 received Royal Assent on 24 May 2023. The details of the new right to neonatal care leave will be set out in regulations in due course. The explanatory notes suggested that if the Bill successfully completed all parliamentary stages in 2023 (which it did in May 2023), it is likely to come into force 18 months after that date. In subsequent parliamentary "Written questions, answers and statements", the Government has indicated that it plans to introduce neonatal leave in April 2025.  

Pregnancy and maternity leave - extending redundancy protection

What is changing?

Employees on maternity leave already have the right to be offered any suitable alternative vacancy in a redundancy situation. The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 provides for greater protection against redundancy during pregnancy and for six months after return to work from maternity leave as well as certain other family-related leave.

What are the main features?

• Ensure that the redundancy protection period (the right for pregnant women and new mothers on maternity leave to be offered suitable alternative employment in a redundancy situation) applies from the point that an employee informs their employer that they are pregnant (whether this is done orally or in writing).
• Extend the redundancy protection period until 18 months after the birth of the child for employees returning from maternity leave, adoption leave or shared parental leave.

What will this mean for employers?

Employers will need to review their redundancy policies and procedures to ensure that they cover the right for those on maternity, adoption or shared parental leave to be offered any suitable alternative vacancy on redundancy.

HR professionals and line managers implementing a redundancy process will also need to ensure that they take account of the extended redundancy protection period where any employees at risk of redundancy are pregnant or have recently returned to work from maternity, adoption or shared parental leave.

The changes in relation to maternity leave will double the current period of redundancy protection from one year to around two years, assuming the pregnant employee advises the employer of their pregnancy at about the 12-week point and takes one year's maternity leave. This could substantially increase the number of employees who must be given priority for any suitable alternative vacancy on redundancy, particularly in workplaces where the majority of employees are women.

Timetable

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 received Royal Assent on 24 May 2023. The provisions of the Act are subject to secondary legislation (regulations) being introduced and brought into force. It is not yet clear when regulations will be introduced.

Strengthening workplace sexual harassment laws

What is changing?

The Worker Protection (Amendment of Equality Act 2010) Bill provides for a positive duty on employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment.

What are the main proposals?

• Introduce a mandatory duty on employers to prevent sexual harassment in the workplace.
• Introduce a statutory code of practice on sexual harassment at work.

What would this mean for employers?

Employers are already liable for harassment carried out by their employees at work, unless they have taken "all reasonable steps" to prevent the harassment. However, a positive duty on employers to take steps to prevent harassment should prompt employers to review their policies and procedures to ensure that:

• the equality, diversity and inclusion policies that they have in place will meet the new requirements;
• those policies are implemented in practice;
• their workforce is made aware of the policies;
• employees and line managers are provided with equality, diversity and inclusion training;
• there is a system in place for dealing effectively with employee complaints; and
• their policies are reviewed as appropriate.

HR professionals should also look out for a new statutory code of practice on sexual harassment. The Equality and Human Rights Commission is developing the new code and is expected to consult on a draft version before it is introduced.

Following amendments to the Bill, its provisions no longer seek to introduce employer liability for third-party harassment of employees.

Timetable

The Government is backing the Bill and it is in its final stages of passing through Parliament, prior to Royal Assent. It will not come into force until one year after the Act is passed, which is expected to happen in 2023.

Other legislation and changes to watch out for

• Statutory code of practice on "fire and rehire"
• Duty on employers to give all tips to workers without deductions
• Revocation of some retained EU law
• Right to request more predictable terms and conditions of work
• Minimum service levels during strikes