2023: A Year in Review –  Employment Law Changes and Updates

2023 was a bit of whirlwind with all the Private Members Bills making their way through parliament. It has been a landmark year for many reasons, and in it we have witnessed significant developments in the realm of employment law, shaping the landscape for both employers and employees for years to come. So, what better time to carry out a comprehensive review of the key changes and updates that we can expect to come into force in 2024 and what employers should be doing in now in preparation. 

Worker Protections and Changes

Remote Work Regulations: The Employment Relations (Flexible Working) Act 2023

One of the most prominent shifts in 2023 has been the continued evolution of remote work regulations. With the global shift towards hybrid work models in the wake of the COVID-19 pandemic, the government has adapted employment laws to accommodate this change. 

The Changes

Amendments to current legislation now explicitly state that employees have double the opportunity for flexible working requests (from one to two requests per year) and that employers must respond to them within two months, down from three. In addition, staff are no longer required to explain the impact of their requests, and managers must also consult with staff if their application is turned down for whatever reason.  

What Employers Can Do To Prepare

Whilst we do not have a date when this will come into force, we do know it will come into force sometime in 2024, businesses need to be ready to align internal policies, procedures and training programmes for line managers when they do. Consider the following steps in preparation: 

• Review Current Policies – Examine your current flexible working arrangements and identify areas of weakness before modifying them.
• Update Employment Contracts – Amend contracts to include terms and conditions surrounding remote work. 
• Develop Remote Work Guidelines – To implement it effectively, guidelines should be made surrounding remote work to ensure best practices. 
• Implement IT Infrastructure – When working at home, it’s crucial for businesses to protect their assets. Put together IT systems and security measures that do so effectively. 
• Train Managers/Supervisors – Remote teams need remote training, and management is no exception. 
• Establish Communication Protocols – Set clear communication channels so that no productivity is lost. 

By taking these proactive measures, businesses can ensure a smooth transition to the new working landscape. 

For a full breakdown of the rules and changes, why not check out our September article here.

Regular Employment: Workers (Predictable Terms and Conditions) Act 2023

The flipside of the flexibility coin is the need for workers to have some regularity in their employment. Chiefly aimed at zero hours contracts and other unusual work schedules, it is nonetheless possible for the new guarantees to effect those on other contractual arrangements too. 

The Changes

So, what are the provisions about? In essence, they work as an exact parallel to flexible working requests: workers, agency workers and employees have a new statutory right to request a predictable working pattern and conditions. 

Although not coming into effect until September 2024, employers should be aware of the effect it will have on their business. For instance, employers should be prepared to create more formalised structures for their staff upon request and must respond within a month. 

What Employers Can Do To Prepare

As with flexible working arrangements, predictable ones will also require a degree of preparation, especially for those businesses which rely on irregular schedules. Consider the following:

• Conduct Policy Reviews – Workplace policies may well need to be updated after review, as with flexible working. 
• Update Employment Contracts – Similarly, contracts should reflect predictable and stable terms of employment in line with the new regulations.
• Develop Clearer Job Descriptions – The best way to ensure clarity is to manage your expectations from the offset, in the job descriptions themselves. 
• Implement a Transparent Scheduling System – Develop or improve scheduling systems to ensure simplicity and predictability in work hours and shifts. 
• Review and Adjust Work Processes – Look into current work processes to ensure that they align with the new rules.
• Enhance Record-Keeping Systems – Update record-keeping practices to accurately document employee’s working hours, terms and conditions so that you have a paper trail to fall back on. 

These simple steps can help ensure that your business doesn’t get caught out when the changes take place. 

You can read the full details here in our April Article.

Fire and Rehire: New Statutory Code put in Place

In the wake of the calamitous P&O scandal, and the eagerly awaited outcome of the Appeal Court judgement in the case of Usdaw vs Tesco Stores, the public attitude towards the process of mass firing and rehiring was irrevocably soured, and the government was quick to respond to the outcry, issuing a new statutory code of practice shortly thereafter. 

The Changes

As a result of it, employers must not use threats of dismissal to pressurise employees into accepting new terms, which is what ‘fire and rehire’ usually consists of: dismissing an employee only to grant them a new contract on (typically) less favourable terms. If employers do this, then the code can be taken into account when discussing relevant cases and courts and employment tribunals have the power to apply a 25% uplift to employee compensation should the employers be found in a state of non-compliance. 

What Employers Can Do To Prepare

Fire and rehire is a highly controversial topic right now. As such, employers should be especially wary of how they approach it. 

• Precise Contractual Terms – In Tesco’s case, their phrase ‘guaranteed for life’ came back to bite them; always ensure absolute precision in your contracts, should they be used against you in future. 
• Ensure Solid Reasoning – Compliance with the impending Statutory Code of Practice is crucial, as are proper consultation and strong business justifications. Employees must be consulted before changes are made, collectively if need be. 
• Avoid Unfair Dismissal – Tesco’s case was about contractual rights; whether they could terminate employment contracts for their purposes. It left out the risk of unfair dismissal associated with fire and rehire, and forgot that the burden is on employers to prove substantial reason for the changes. Guarantee that your business does so to avoid a similar fate. 

For a comprehensive breakdown of the details, check out our April article here.

Whistleblower Protections: Legislation Under Review

This year has also seen whistleblowing come under the microscope as government and policymakers get to grips with the aftermath of the pandemic, which saw a record number of cases over the course of its duration. 

The Changes

While whistleblowers are already afforded considerable protections, the current reviews aim to strengthen them in the form of The Protection for Whistleblowing Bill. The expansion for what is considered to be ‘protected disclosure’ is chief among current concerns, as well as the widening of the term ‘whistleblower’ itself to include non-employees. The review is due to conclude prior to the winter, when we’ll know exactly what changes are to be made. 

At this moment, potential civil penalties and criminal offenses for employers who act against whistleblowers are still in the pipeline, and perhaps more than anything else, it’s key for employers to be aware of the added compliance burden that will no doubt result from the review. 

What Employers Can Do To Prepare

• Review and Update Whistleblowing Policies – Ensure that your existing policies are comprehensive and comply with anticipated changes. 
• Establish a Secure Reporting System – Implement a confidential and anonymous reporting system for employees to raise concerns without fear of retaliation
• Create a Whistleblower Protection Framework – It’s essential to develop a framework protecting whistleblowers from retaliation, discrimination or adverse treatment.
• Appoint a Whistleblowing Officer or Team – Appointing a responsible person or team to manage reports and handle them with care and compliance is an integral part of modern business, and it is what which should be handled with utmost care.
• Promote a Culture of Transparency and Ethics – Organisational cultures which encourage transparency and ethical behaviour, as well as the reporting of wrongdoing, are not only far likelier to effectively handle any issues which arise, but are far likelier to avoid them in the first place. 
• Update Employee Handbooks and Engage with Legal Experts – Make sure that all relevant documents reflect the updated whistleblowing policies and procedures, and do so in such a way that remains compliant with any and all upcoming changes, consulting legal experts as and when necessary. 

For further information, why not check out all the particulars here in our June article.

The Employment (Allocation of Tips) Act 2023

The management of tips and service charges is set to be altered in the coming year in the form of The Employment (Allocation of Tips) Act 2023, and is to bring about major changes.

The Changes

The Act requires employers to distribute all tips fairly among staff, with a supporting Code of Practice on ‘fair’ allocation. Employers must also have a written policy outlining their approach to tip handling. The Act mandates a three-year record-keeping of all tips and service charges. Workers have a 12-month window for claims of non-compliance, longer than the usual 3-month period for other employment claims. Non-compliant employers may be required to revise their tip policies, distribute unpaid tips to all employees, and potentially pay compensation up to £5,000 per claimant.

What Employers Can Do To Prepare

• Re-evaluate Current Practices – Reconsider the distribution of tips and service charges at play in the business, ensuring they align with the upcoming ‘fair allocation’ stipulations.
• Reassess Policies – Consider drafting a comprehensive written policy on how to handle and distribute tips, and ensure this policy is accessible to all employees.
• Implement an Effective System of Record-Keeping – Establish a system for maintaining records of all tips and service charges for the required three-year period.
• Training Management – Start educating employees about the changes and their rights under the new law to avoid costly mistakes. 
• Seek Legal Guidance – To fully understand the implications of the Act, and ensure compliance, look to gain counsel from experts where needed. 

For further developments of the year’s proceedings, why not check out the second part of our year in review here, where we discuss family-friendly measures, the key updates to The Equality Act, National Living and Minimum Wage changes, TUPE and more!