By Stephen Mutch, above, employment lawyer and partner, Pannone Corporate
Every year, there is a calendar of important dates that guides and informs the future direction of HR teams in every shape and size of business. Some are merely a side note, others are more substantial, carrying a legislative burden and requiring more careful consideration about how they will impact on current and future workforces.
So, what has come into force so far this year, what is on the horizon for businesses for the remainder of 2023, and what implications will these changes have on HR leaders and employees?
January: Deadline for ICO consultation on information about workers’ health
The Information Commissioner’s Office (ICO) is in the process of producing an online resource with guidance on employment practices and data protection. The idea is, the ICO will drip feed drafts on different topic areas and add to the resource over time. A draft on handling information about workers’ health was out for public consultation until 26 January 2023.
The ICO has said: “The draft guidance aims to provide practical guidance about handling the health information of workers in accordance with data protection legislation and to promote good practice.”
Ultimately, the guidance reiterates the message that health information is among the most sensitive personal information an employer will process about its workers, reaffirming the position under UK Law on processing workers health data.
Ongoing: New HSE guidance to help employers support staff with disabilities
The HSE has published new guidance on what employers can do to support staff with long term health conditions. The guidance provides a talking toolkit for having conversations with workers on the following topics:
- Creating a supportive and enabling workplace culture
- Taking an inclusive approach to workplace health
- Understanding the work barriers that impact on workers
- Making suitable workplace adjustments or modifications
- Supporting sickness absence and return to work
The HSE emphasises that talking to workers is an important first step in supporting them. For each of the above topics, there are a series of questions which a manager can use to start discussions with a worker in a one to one meeting.
March: Consultation on holiday entitlement for part-year and irregular hours workers closes
There are only a matter of weeks to go until consultations close (9 March 2023) on the much-debated topic of holiday entitlement, with this particular consultation focusing on part-year and irregular hours workers.
The move has been prompted by a Supreme Court decision in July 2022 that concerned the calculation of holiday pay and entitlement of a permanent part-year worker on a zero-hours contract. As a result of the ruling, part-year workers are now entitled to a larger holiday entitlement than part-time workers who work the same total number of hours across the year.
The Government is keen to address this disparity to ensure that holiday pay and entitlement received by workers is proportionate to the time they spend working.
The aim of the consultation is to understand the implications of the judgment on different sectors, including agency workers who have complex contractual arrangements, and ensure that any changes do not have any adverse impacts on other parts of the legislation – the Working Time Regulations 1998 and the Employment Rights Act 1996.
April: Increase to National Minimum Wage
The National Living Wage, which applies to workers aged 23 and over, will increase by 9.7% to £10.42 per hour. It is expected this will benefit over two million low paid workers.
The new rates from 1 April 2023 will be:
- Age 23 or over (NLW rate): £10.42 (up 9.7% from £9.50)
- Age 21 to 22: £10.18 (up 10.9% from £9.18)
- Age 18 to 20: £7.49 (up 9.7% from £6.83)
- Age 16 to 17: £5.28 (up 9.7% from £4.81)
- Apprentice rate: £5.28 (up 9.7% from £4.81)
- Accommodation offset amount: £9.10 (up 4.6% from £8.70).
April: Increase to family statutory leave pay and statutory sick pay
The DWP has published its proposed increases to several statutory benefit payments. The following rates are due to come into effect on 10 April 2023.
- The weekly rate of statutory sick pay (SSP) will be £109.40 (up from £99.35)
- The weekly rate of statutory maternity pay (SMP) and maternity allowance will be £172.48 (up from £156.66)
- The weekly rate of statutory paternity pay (SPP) will be £172.48 (up from £156.66)
- The weekly rate of statutory shared parental pay (ShPP) will be £172.48 (up from £156.66)
- The weekly rate of statutory adoption pay (SAP) will be £172.48 (up from £156.66)
- The weekly rate of statutory parental bereavement pay (SPBP) will be £172.48 (up from £156.66).
Ongoing: Four day working week pilot
A hundred UK companies have signed up to a permanent four day working week with no loss of pay. This development follows a survey of the 70 companies that took part in the six month pilot of the four day working week.
In September, 88% of those companies said the four day week was working ‘well’ and 95% of the companies surveyed since said productivity has either stayed the same or improved.
The CIPD also published a new report which found that a third of employers believe a four day working week will be attainable within a decade. However, the report also suggests that with the cost of living crisis, and a potential rise in unemployment, we are likely to see a greater focus on the need to boost working hours.
Timings yet to be confirmed: Changes to flexible working
The Government has published its response to a consultation on updating flexible working laws, and approved the following:
- The right to request flexible working will be a day one right. It is currently only available to those who have been employed for 26 weeks continuously. However, it remains a right to request and not an entitlement to work flexibly.
- Employees will be able to make two requests per year whereas currently they are permitted only one request.
- Currently employers have three months to respond to a request but this will be reduced to two months
- There will be a new duty to discuss alternatives to the request if the employer cannot accommodate the original request, The employer must discuss whether there are any alternative forms of flexible working.
- The procedure for requesting flexible working will be simplified. There will no longer be a requirement for the employee to set out how their flexible working might impact the employer.
- However, there will be no changes to the eight reasons the employer can rely on to refuse a flexible working request.
It is not clear when these proposals will come into effect. No timeframe has been indicated and primary legislation will be required to implement some of the changes.
The Government has confirmed it will develop enhanced guidance to raise awareness and understanding of how to make and administer requests for flexible working.
December 2023 – EU-derived subordinate legislation and retained direct EU legislation will be revoked under EU Law (Revocation and Reform) Bill 2022-2023
Following Brexit, a number of Withdrawal Acts were introduced to avoid gaps being created within domestic UK legislation, once the ‘source’ of obligations arising from EU law was effectively cut-off after the UK ceased to be a Member State.
These Acts resulted in much of the UK’s EU-derived legislation being kept on the statute book as ‘retained law’. However, this status was only ever intended as a temporary measure to ease the transition period immediately following Brexit. The Government has now stated its intention to address this persisting legislation on a more secure and constitutional footing.
To this end, the Government has introduced the Retained EU Law (Revocation and Reform) Bill which, if enacted, would serve to sunset the majority of retained EU law. In other words, and without more, the Act would result in the retained legislation expiring and simply falling away on 31 December 2023.
It’s estimated that around 2,400 individual pieces of legislation may be affected by the Bill, including those relating to workplace health and safety, as well as the working time directive.
The Bill had its first reading before the House of Commons in September 2022 and has progressed to the Lords where it has had its first reading, with the second reading listed for 6 February 2023. As such it remains unclear when, or if, the Bill will become law. However, if the Government wishes to abide by the proposed deadline of 23 December 2023, then time will need to be made available for discussion around its wider impact and enactment.
As with any year, there is plenty for HR teams to digest and plan for in the next 12 months. Much of it will have a positive impact on employees, but there are clearly cost and operational implications that businesses will need to factor in as they navigate the employment landscape for the remainder of 2023.
