What HR teams can expect in 2023?

Better rights for new parents

There will be special protections in redundancy situations for the following:

• pregnant employees
• employees absent on maternity, adoption or shared parental leave
• employees returning from maternity, adoption or shared parental leave

Priority for suitable alternative vacancies will be placed on them.

Other new rights concerning Neonatal Leave and Pay:

• Day 1 right to (at least) 1 week’s leave for parents of a child in neonatal care, to be taken within 68 weeks of birth.
• Employees with 26 weeks’ continuous service to be paid statutory Neonatal Pay (rate to be determined but expected to be in line with other statutory leave payments).

Developments affecting terminations and settlements

There is new ACAS guidance on suspension during an investigation at work. The following should be considered:

• whether to suspend
• alternatives to suspension
• involvement of external bodies
• getting the process right
• supporting suspended workers

Bathgate v Technip UK Ltd (EAT) was important in highlighting the following when it comes to settlement agreements:

• can settle actual claims brought before a Tribunal
• can settle known complaints which had not been brought as claims before a tribunal (e.g. matters raised in a grievance)
• cannot settle unknown complaints (unknown at the time of signing a settlement agreement)
• blanket and “kitchen sink” waivers are not effective

The future of work and defining remote and hybrid work strategies

Employees continue to demand flexibility in a post-pandemic working environment. In 2023, companies will continue to have to respond to these expectations as they compete to attract and retain talent. It will continue to be a balance for companies as they look to support individuals to work when, how and where they want, while they also build more formal strategies to provide flexibility, both fairly and consistently.

Organisations can be expected to use 2023 to redefine their remote and hybrid work risks and strategies in an attempt to address this balance.  Employers must ensure that employment contracts contain confidentiality clauses and that it operates a working from home policy that also protects company information.

New right to one week’s unpaid Carer’s Leave

A new Bill would require and give the Secretary of State the power to create, by regulations, a new entitlement to carer’s leave, “entitling an employee to be absent from work on leave under this section in order to provide or arrange care for a dependant with a long-term care need.”

This leave would be a day one right, available to all employees without any qualifying period. It would apply to anyone caring for a spouse, civil partner, child, parent or other dependent who needs care because of a disability, old age or any illness or injury likely to require at least three months of care.

This leave would be unpaid. The maximum duration of the leave and how and when it could be taken would be set by regulations, although the Bill would require the leave entitlement to be at least one week per year.

Statutory Code governing “fire and rehire” practices

The government committed to publishing a statutory code on so-called fire and rehire practices following pressure from trade unions and business groups after the mass sacking of hundreds of P&O Ferries workers last year.

The draft fire and rehire code also explains what an organisation should do if an agreement has not been reached, and says that they should not use threats of dismissal to pressurise staff into accepting new terms.

Once in force, courts and employment tribunals will be able to take the fire and rehire code into account when considering claims from employees, and will have the power to apply a 25% uplift to an employee’s compensation if an organisation is found to have not followed the code.

However, the fire and rehire code itself imposes no legal obligations on employers and the government makes it clear that a failure to observe it does not, by itself, make an employer liable to legal proceedings.

It makes it clear that dismissal and re-engagement on new terms should only be done as a last resort, and with legitimate business reasons.

A consultation will run for the next 12 weeks to invite views from the public and other interested groups on a new statutory code of practice for “fire and re-hire”.

Consultation on holiday pay entitlement for part-year and irregular hours workers

The Government has opened a new consultation on how the holiday pay of certain workers with irregular periods of work should be calculated, following a Supreme Court judgement last year.

The key takeaways were:

• The Supreme Court held in Harpur Trust v Brazel that the 12.07% formula commonly used to calculate holiday pay for workers with irregular hours is incorrect and using it would, in some cases, result in an underpayment. In that case, the claimant was employed in a school on a permanent part-year contract. The Supreme Court held she was entitled to receive 5.6 weeks holiday per year, as any other worker, rather than pro-rated, and would therefore receive more annual leave than an employee working the same number of hours spread throughout the year.
• The government’s consultation seeks views on proposals to pro-rata holiday entitlement for part-year and irregular hours workers based on the annual hours they work. It proposes to introduce a 52 week holiday pay reference period for part-year and irregular hours workers to ensure that their holiday pay and entitlement is proportionate to their working time over a 52 week period. For many workers with irregular hours and part-year workers, this will therefore go back further than 52 weeks.
• The consultation also proposes a different, fixed, holiday entitlement reference period of 52 weeks, including those weeks without work. Holiday entitlement would be calculated and fixed at the beginning of the leave year, based on hours worked the previous year, rather than on a “rolling” basis as at present.
• Also included in the consultation is a proposal to simplify the calculation of holiday, legalising the sometimes controversial but nonetheless often used 12.07% calculation, across both working and non-working weeks. The government asks employers replying to the consultation to explain how they currently calculate holiday, and their views on the proposed methods.
• The consultation closes on 9 March 2023.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.