Employment law update: what lies in store for 2023?

Whilst there are no imminent major changes in employment legislation for the start of 2023, there have been plenty of talking points for employers and employees alike. Nick Wilson, employment partner with Andrew Jackson Solicitors, considers three of the biggest employment law topics at the moment.

Strike Action Update

In October 2022, we looked at the law on industrial action in the workplace and, in particular, strikes. 2022 saw a significant increase in industrial action by employees and there are no signs yet that 2023 will be any different. Joining railway workers and Royal Mail staff in striking are nurses, ambulance workers, teachers, Border Force staff, driving test centre staff and possibly junior doctors and firefighters. Against the backdrop of the cost of living crisis, all are seeking improved terms and conditions – and in some cases assurances – on working practices and possible redundancies.

Whilst there are ongoing negotiations between various Trade Unions and the respective employers, the Government has announced plans to introduce new legislation which, it says,  will allow them to set minimum levels of service to be met during strike action in order to ensure the safety of the public and access to public services. The proposed legislation, currently entitled the Strikes (Minimum Service Levels) Bill, is stated as ensuring crucial public services including ambulance, fire and rail services maintain a minimum service level during the course of any industrial action, thus reducing risk to life and disruption for people travelling to work.

Time will tell if the Government can see off upcoming strikes and keep disruption to a minimum. We will update you on any legislative changes that  arise.

Dismissals and re-engagement: Code of Practice

Employers wishing to change contractual terms and conditions of employment often meet with resistance from employees affected by such changes. Without the employee’s agreement, the employer cannot implement the changes that it wants to. Employers often say that such changes are necessary to cut costs, improve efficiency or save jobs.

Faced with the prospect of not obtaining agreements to the proposed changes, the employer may consider the possibility of terminating the contract of employment with notice and offering to re-engage those staff on the proposed new terms. This practice of ‘firing and rehiring’, known as ‘the nuclear option’, is very much a last resort for employers who cannot implement changes they say are necessary for their business. It is also not risk free: the termination of the contract of employment is a dismissal in law and allows employees the opportunity to pursue an unfair dismissal claim.

The practice has come under fire recently from the Government who have announced plans which, they say, will crack down on unscrupulous employers that use controversial dismissal tactics.  On 24 January 2023 the Department for Business, Energy & Industrial Strategy (BEIS) published its draft Code of Practice on Dismissal and Re-engagement (the Code). The Code may be seen as a response to situations such as P&O Ferries’ wholesale dismissal of hundreds of workers last year with little or no formal procedure when effecting those dismissals.

In its current draft form, the Code provides details of an employer’s responsibilities when looking to vary terms and conditions of employment. In addition, when the Code comes into force, an Employment Tribunal can take it into account when dealing with any claims where the Code applies, the most obvious being unfair dismissal claims. The Tribunal will have the power to apply an uplift of up to 25% to any award it makes. This is similar to the Tribunal’s power to apply an uplift in a financial award where a party has failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures.

Consultations on the draft Code closes on 18 April 2023.

Menopause Leave

There has been a renewed focus on how experiencing the menopause can seriously impact upon an employee’s working life. Whilst many employers already operate some form of menopause policy, menopause is not a protected characteristic under the Equality Act 2010. Nonetheless, if an employee or worker is treated less favourably, or subjected to a disadvantage because of menopause, that could amount to unlawful discrimination if it is related to a protected characteristic. The most immediately relevant characteristics would be sex, age and even disability. In itself, this may give rise to discrimination claims under sex, age or disability.

This gap in the legislation has been the subject of a number of recent reports, notably from the Women and Equalities Committee of the House of Commons. However, the Government has now rejected the Committee’s recommendation to open up the consultation on amending the Equality Act 2010 to make menopause a protected characteristic. Instead, the Government states that it will look to encourage employers to implement policies for staff affected by menopause.

Employers should be looking to put their own policies in place now, if they have not already done so. Key points to consider are:

• Who may be affected by the menopause? For example, trans people can also experience menopause
• How can the employer support staff who are experiencing symptoms of menopause? Consider changing hours of work, allowing more breaks or working more flexibly
• Are managers sufficiently trained to identify how menopause can give rise to legal issues and are they able to provide the appropriate level of support to workers?
• Do any health and safety issues arise?
• How will the employer support impacted employees generally?

For help and advice on employment law matters, please get in touch with our friendly team on (01904) 275 250 or email nick.wilson@andrewjackson.co.uk