Big changes are coming to the relationship between employers and their staff - Sue Gilchrist

The next 12 months promise to deliver really significant changes affecting the legal relationship between UK employers and workers. I’ve picked out some of the most important for Scottish businesses.

Firstly, the UK Government plans major reforms by reviewing all EU-derived laws retained post-Brexit. Unless specifically exempted, all will be repealed at the end of 2023.

A huge amount of employment law protection stems from Europe, including: holiday pay and other working time issues; family leave and maternity protections; elements of discrimination; and equal pay. If the review process results in rolling back employment protection, HR will have to consider what to retain and whether remaining an “employer of choice” or leveraging greater flexibility takes priority.

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In terms of new protections on the way, the UK Government has backed four family-friendly Private Members’ Bills. These will introduce: a right to paid leave for parents of babies requiring neonatal care (over and above standard maternity leave); unpaid carers’ leave of up to one week; greater protection against redundancy for new parents; and the right to request flexible working from day one. A Private Member’s Bill reforming tips will also progress, ensuring these are paid to staff. In Scotland, free transport home for late shift workers could also become law.

Sue Gilchrist is Legal Director, Pinsent Masons

There is an additional Private Members’ Bill, which seeks to impose a positive duty on employers to take all reasonable steps to prevent sexual harassment, as well as re-introducing obligations to protect employees against all forms of harassment by third parties e.g. clients or suppliers.

Previous third party obligations were withdrawn in 2013, and we are yet to see whether the government backs this bill as strongly as the first four. It is due back in Parliament for consideration on 3 February, and a new offence of public sexual harassment is also being created in England and Wales, while the Scottish government is developing new criminal legislation to outlaw “public misogynistic harassment”. All could impact on the workplace.

Also in the area of equality law, HR will feed into environmental, social and governance (ESG) strategy. HR makes a vital contribution to implementing regulations and best practice, ensuring diverse recruitment, and data collection and benchmarking. For example, employers are considering whether to implement “positive action” measures to avoid stalling on diversity targets. New government guidance on positive action is expected, as well as finalised ethnicity data standards to ensure responsible reporting.

Managing the response to the expression of gender identity at work will also sit on HR teams’ desks. Scottish Government proposals to change gender recognition protocols is a hot topic which will impact UK-wide. Employers may want to consider how differing positions across the UK impact the workforce and their HR systems and processes, subject to whether the bill ultimately obtains Royal Assent.

Refining hybrid working also remains a focus for HR. Many businesses are still trying to find the sweet spot between workplace attendance and home working. The four-day week continues to attract discussion and, given the current cost of living crisis, the Living Wage Foundation seeks a living hours pledge to complement its real living wage.

Increases to the national minimum wage, national living wage and statutory payments including maternity, paternity, adoption and shared parental leave pay will be implemented in April.

Finally, and unsurprisingly given current headlines, industrial relations strategies will be a prime area of focus to minimise business disruption in 2023. An upcoming UK Supreme Court decision on whether employees are protected from detriment short of dismissal if they go on strike is keenly awaited by unions and employers alike, and the English High Court will decide whether the use of agency workers during strikes is lawful.

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Meanwhile, union and non-union engagement strategies are relevant to broader ESG interests, and a new statutory code of practice in relation to dismissal and re-engagement strategies is expected, as is further reform - including minimum service levels for the transport sector - proposed by ministers.

If I have one prediction as to which of these would have the most impact, it must be the proposed removal of EU-derived law. We are used to employment law being fast-moving, but if that proposal goes ahead, new super-sonic levels of activity will be required so that unintentional legal vacuums do not result.

Sue Gilchrist is Legal Director, Pinsent Masons

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