Mon 04 Dec 2023

2023 Employment Law Review of the Year

A look at the key employment law developments of 2023.


We started the year by asking Whatever happened to the Employment Bill? as various private members' bills made their way through parliament. These sought to introduce or improve a variety of family friendly rights, along with the introduction of an employer duty to prevent sexual harassment in the workplace.  A consultation was also under way trying to address the inequity in calculating holiday entitlement caused by the Supreme Court judgment in Harpur v Brazel.

In the context of a number of trade unions having been given permission to proceed with a judicial review of the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022, the Strikes (Minimum Service Levels) Bill had its first reading in the House of Commons. The scene was set for a turbulent year.

The UK Government also announced it would block the Gender Recognition Reform (Scotland) Bill - a dispute that is still rumbling on as we await a judgment on the matter from the Court of Session. 


In February we were wondering What employment rights will disappear as a result of the Retained EU Law (Revocation and Reform) Bill?. At the time, certain elements of the press were suggesting it was going to be a "bonfire" of employment rights.  A couple of months later, it became apparent that this was not going to be the case as the UK Government did a U-turn on the "sunset clause".

Britain was also hit by significant industrial action with half a million workers including teachers, civil servants, university staff and train drivers due to take action.


Only a few months after its launch, we asked Will ChatGPT revolutionise the workplace?.  Revolutionise? Maybe not (yet), but change - almost certainly.  It currently has over 100 million users and the website sees 1.5 billion visitors per month, so the numbers do the talking.  It is worth noting though that one of its biggest investors warned employees not to share sensitive information with it.


As well as the annual increases to Employment Tribunal compensation, the national minimum wage and other statutory payments we found that, disappointingly, we were Back where we started with gender pay gap. The figures from a snapshot date of 5 April 2022 showed the gap sitting at 9.4%, the same as it was when the first ever figures were reported for the 2017/18 year.  Workplace bullying was also highlighted following the resignation of Dominic Raab as Deputy Prime Minister, after an investigation into his actions found he had acted in an "intimidating" and "insulting" manner with civil servants. 


In the month that saw an additional public holiday by virtue of the coronation of King Charles III, Brexit had a significant impact on employment law as Post Brexit changes to employment legislation were announced and the sunset clause abandoned.  This set a course for new legislation being introduced following the outcome of consultations on proposals relating to TUPE, holiday leave and pay and record keeping obligations under the Working Time Regulations. 

Meanwhile, the Employment (Allocation of Tips) Act 2023 become the first of the Private Members' Bills to receive Royal Assent.  The Neonatal Care (Leave and Pay) Act 2023, the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 and the Carer's Leave Act 2023 all followed suit before the end of the month.


In June we asked Why are so many big businesses getting national minimum wage wrong? as major high street names including WHSmith and Argos explained why they had failed to pay the national minimum wage after being named by HMRC.


In July, the Conduct of Employment Agencies and Employment Business (Amendment) Regulations 2022 - which had removed the prohibition on using agency workers to replace striking workers - were quashed. This was on the basis that the UK Government had failed to comply with its obligation to consult before making the Regulations.  Although, at the time, this was seen as a victory for the unions, July also saw the Strikes (Minimum Service Levels) Bill, which was heavily opposed by the unions, receiving Royal Assent.

Changes to family friendly rights continued apace with the Bill implementing changes to flexible working regime becoming law albeit employers have a year to prepare before it takes effect. In addition,  changes to make Paternity leave more flexible were also announced. July also saw Protection from harassment legislation watered down as it made its way through the House of Lords.


In August, Amazon issued a warning to their employees to increase their in-office presence. Some firms advised employees that their pay or promotions would be impacted if they continued to remain away from the office and the UK Government warned English councils against pursuing 4 day working week trials. 

Maya Forstater was awarded over £100,000 by an Employment Tribunal after it held she had been discriminated against when she lost her job after tweeting gender critical views. The issue of managing conflicting beliefs in the workplace is one which employers, understandably, struggle to manage given the complexities in this area.


September was all about statistics.  While the annual CIPD/Simply Health, health and wellbeing survey showed sickness absence rates were at their highest level for a decade the Employment tribunal award statistics highlighted the cost of getting it wrong when dealing with illness.  The highest award made in the 2022/23 reporting period was for disability discrimination and came in at £1,767,869.

The Workers (Predictable Terms and Conditions) Act 2023 was the next Private Members' Bill to receive Royal Assent, introducing a new statutory right for eligible workers to request a more predictable working pattern.  Meanwhile, when speaking to the TUC annual conference, the Labour Deputy Leader, Angela Raynor, promised a new Employment Bill within the first 100 days, should Labour win the next general election. 


October saw the long-awaited Supreme Court judgment in Chief Constable of Police Service of Northern Ireland v Agnew being published.  Finding against the Police Service, and ultimately costing them an estimated £30 million in unpaid holiday pay, the Supreme Court held that a break of three months will not interrupt a series of unlawful deductions as had previously been held by the Employment Appeal Tribunal.  Although originating from the Northern Irish courts, the judgment is equally applicable to unlawful deduction of wages legislation in Great Britain, albeit Regulations covering Scotland, England and Wales currently impose a two-year limitation period on most of these types of claims. 

Also a long time coming, but some may say in the end a little disappointing, the Worker Protection (Amendment of Equality Act 2010) Act 2023 received Royal Assent bringing the statutory duty to take reasonable steps to prevent sexual harassment in the workplace a step closer, but having lost employer liability for third party harassment along the way.


November was a month for equality law issues.  The UK Government published draft Regulations codifying certain EU derived discrimination protections that would have otherwise disappeared at the end of 2023, due to Brexit.  The Inner House of the Court of Session also published a judgment confirming that trans women with a gender recognition certificate could claim protection as women under the Equality Act 2010.  This emotive subject is likely to be something we will hear more about in 2024.

We also found out that the UK Government's loss in the High Court in July over the right to replace striking workers with agency workers was not the end of that matter.  A consultation on Hiring agency staff to cover industrial action was launched, presumably with a view to re-introducing similar regulations next year.


The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 are due to come into force on 1 January 2024.  Aimed at addressing the inequity caused by the Supreme Court judgment in Harpur v Brazel in 2022, it not only addresses that issue but also re-introduces rolled up holiday pay for part-year and irregular hours workers and makes changes to working time record keeping obligations and TUPE consultation obligations. 

Right from day one, 2024 will be a year of implementation of employment rights.  Irrespective of the outcome of the anticipated general election, we will see some big changes.  For full details of what the Morton Fraser MacRoberts employment team think will make it big next year, watch out for our preview of 2024 coming soon.


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