Articles
Key employment law developments expected in 2023
Nicola Smyrl
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any employers will be glad to say goodbye to 2022, given the difficult economic circumstances which have been challenging for many businesses to navigate, hoping for more positivity in the year to come. 2023 is lining up to be a busy year for employment law, with various new laws and guidance expected to come into effect, and some important cases due to be determined in the senior Courts. It is also possible that significant changes will be made to employment law, as the so called Brexit Freedoms Bill will “sunset” many EU laws which are currently in force in the UK. In this article we have summarised the expected changes and developments which are likely to be of interest to employment lawyers. Increases in employment related payments The Government has announced that from 1 April 2023 there will be an increase in the National Living Wage and National Minimum Wage as follows: • a 92p, or 9.7%, increase to the National Living Wage for those aged 23 and over (from £9.50 to £10.42 per hour); • a £1, or 10.9%, increase for those aged 21–22 (from £9.18 to £10.18 per hour). (This increase is intended to narrow the gap with the NLW and put this age group on course to receive the full NLW by 2024); • a 66p, or 9.7%, increase for those aged 18–20 (from £6.83 to £7.49 per hour);
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• a 47p, or 9.7%, increase for those aged 16–17 (from £4.81 to £5.28 per hour); and • a 47p increase in the apprentice rate (from £4.81 to £5.28 per hour). • In addition the following statutory payments will increase with effect from April 2023: • Statutory maternity, paternity, adoption, shared parental and parental bereavement pay will increase to £172.48 per week (from £156.66 per week). • Statutory sick pay will increase to £109.40 per week (from £99.35 per week).
Ferries without consultation or notice, the Government announced that it would be issuing a statutory Code of Practice to address "fire and rehire" practices. Tribunals and courts will be required to take the code into account when considering relevant cases. They will have the power to apply an uplift of up to 25% of an employee's compensation where the code applies, and the employer unreasonably fails to follow it. Whilst no date has yet been fixed for the Code to come into force, during a Parliamentary debate on 3 November 2022, it was stated that a draft code will be published in the near future.
The current cap on a week’s pay for the purposes of calculating an employee’s statutory redundancy pay or unfair dismissal basic award is £571. This cap is expected to increase from 6th April 2023, however the amount has not yet been published. Additionally the statutory cap on unfair dismissal compensation is expected to increase from £93,878 at this time.
New ICO guidance on workplace monitoring and health information
“Brexit Freedom Bill” – potential repeal of EU Law The Retained EU Law (Revocation and Reform) Bill will ‘sunset’ (revoke) any piece of retained EU Law by 31st December 2023 unless specific legislation is introduced to retain it. There is provision to extend the ‘sunset’ date to 2026 in certain cases. Laws which are retained may be amended. This Bill potentially has far reaching implications for employment law taking into account that some important employment law rights such as under the Working Time Regulations, Agency Workers Regulations and TUPE are derived from EU Directives. At present it is entirely unclear what changes the Government may make to employment laws. New Statutory Code on “fire and rehire” On 30 March 2022, in the wake of the mass redundancies announced by P&O
The ICO is currently consulting on new draft guidance relating to workplace monitoring and health information, which closes in January 2023. The new guidance is expected to come into force, replacing the existing Employment Practices Code later this year. Employers will need to review their practices in this area to ensure compliance with the new requirements. Overhaul of law on tips and gratuities Currently, if a worker/employee receives a tip from a customer, the employer is able to distribute and/or retain the tips using the method which they find most suitable. Many tips are not passed on to workers. The aim of the Employment (Allocation of Tips) Bill, a Private Members Bill backed by the Government, is to ensure that workers receive the benefit of tips that are intended for them. Through this Bill, a new statutory Code of Practice will be developed to provide businesses and staff with advice on how tips should be distributed. On top of this, workers will receive a new right to request more information relating to an employer’s tipping record, enabling them to bring forward a credible claim to an employment tribunal if they feel there are grounds to do so.
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