Retained EU law

Currently a Bill is making its way through Parliament which would have the effect that all retained EU law will expire on 31 December 2023 unless actively "saved". Although the deadline for implementation of The Retained EU Law (Revocation and Reform) Bill could be extended to June 2026, the government would have to decide which laws this would apply to. Currently it is not clear what the government's intentions are in respect of EU derived UK employment law, but working time, holiday rights, aspects of TUPE and regulations affecting part time and fixed term workers could be affected. The Bill would also make it easier for courts and tribunals to depart from UK cases which were decided in accordance with EU case law.

Further detail is available here.

No Employment Bill likely but Private Members' Bills supported

Although no progress has been made with the long-awaited Employment Bill, the government is supporting Private Members' Bills which seek to deliver on some of its commitments under the proposed Bill. There are no dates for when these new laws, if they are passed, will come into effect. Proposals include:

• the extension of flexible working rights to provide a day one right for employees to request flexible working from their employer

• a new statutory right to give employees who are also unpaid carers a week of unpaid leave each year to provide care
• a new right to provide additional leave and pay for employees with responsibility for children receiving neonatal care. Once introduced, it will give both parents up to 12 weeks extra leave and pay

• extending protection from redundancy in pregnancy and for new parents for a period of six months after such family leave. Employers would be required to offer suitable alternative employment where it exists and failure to do so may provide grounds for the dismissal to be treated as unfair

• creating employer's liability for harassment of their employees by third parties and a duty on employers to take all reasonable steps to prevent such sexual harassment of their employees.

More detail on the proposals can be found here and here.

Data protection: monitoring at work and health data; Digital Information Bill

The Information Commissioner's office has launched consultation on guidance for both monitoring at work and on information about workers' health which would replace the relevant sections of the current employment practices code. The consultation will close this month. Further details can be found here.

The government introduced the Data Protection and Digital Information Bill to Parliament in July 2022 after a lengthy consultation process which we discuss here.  It covers reforms including to the UK GDPR and Data Protection Act 2018. During the autumn it was announced that there would be further consultation with stakeholders which could delay the Bill somewhat. It is unclear whether this means there will be changes to the Bill, although assurance was given that there would be nothing in the it to threaten the EU-UK adequacy agreement. Details of the further consultations are likely to be announced shortly, possibly although not certainly, alongside publication of another version of the Bill.  In the meantime, see our analysis of the DPDI Bill as introduced to Parliament here.

Statutory Code of Practice on dismissal and re-engagement

Although the government had indicated that this draft code on the practice of "fire and rehire" would be published last summer, the government confirmed in November 2022 that it would be published in the "near future" and representations from various interested parties, including trade unions, would be considered.  We have no firm date. The concept arose out of the actions of P&O Ferries in dismissing about 800 workers without following collective redundancy consultation procedures.

Consultation on reform of post-termination non-compete clauses in employment contracts

Back in December 2020, the government consulted on measures to reform post-termination non-compete clauses in employment contracts, including banning them altogether. Although the consultation closed in February 2021 the government has still not indicated when it will publish a response.

Hybrid and distance working: tax issues

On 20 December 2022, the Office of Tax Simplification published its last official report, Hybrid and distance working report: exploring the tax implications of changing working practices. It does not contain proposals for reform as such but highlights the complexity of the tax landscape where hybrid working across borders takes place. It calls for there to be clearer guidance in future by HMRC, as well as a joined up approach between different jurisdictions on grey areas, such as when there is a risk of a permanent establishment being set up where an employee moves between jurisdictions. 

Employers could once again be liable for third-party harassment if a Private Member's bill becomes law. The Worker Protection (Amendment of Equality Act 2010) Bill has passed through its second reading in the House of Commons and is now being considered by a committee. The Bill, if passed, will give workers protection in the workplace from third-party harassment and will also place a duty on employers to take steps to prevent third-party harassment.

The repeal of certain provisions of the Equality Act 2010 in 2013 meant that employers were no longer liable where staff were harassed by third parties. Cases of sexual harassment in the workplace were once again brought to the forefront of the media after the #MeToo movement in 2017.  The Bill is specifically targeted towards supporting workers in the hospitality and retail sectors. It is reported that approximately 1.5 million people each year are victims of third-party abuse in the workplace and nearly 80% of female employees who experience harassment do not report it.