2023 – Legal overview for SME businesses

31 December 2023 may see all EU Law that is not specifically re-stated or replaced by UK law disappearing altogether. This timeframe may be extended to 23 June 2026 (the ten-year anniversary of Brexit). This will affect several key pieces of legislation including the Working Time Regulations (which deal with leave and working hours), and TUPE and could lead to significant changes in many areas. 

Amendments are being proposed to flexible working rights. This includes the right to request flexible working from day one (rather than after 26 weeks’ service) and requirements for employers to respond more promptly to requests (within two months rather than three). There will be less onerous requirements for employees to explain the impact that their flexible working request will have on their employer. 

There are proposals to extend protections for those on family leave (including those on maternity leave). Currently, in a redundancy situation, employees on maternity leave have priority in terms of any suitable alternative employment. It is proposed that this period will be extended from the point at which an employee notifies their employer that they are pregnant to six months after they have returned from leave. 

A contentious topic, which polarises views, is the current strikes ongoing across a number of sectors in the UK. There are Government proposals to introduce legislation which provides minimum standards of cover in certain sectors (including health, education and fire services). It is unclear the impact that this will have, given that a Labour government has expressly said that it will reverse the proposed legislation. It is also unclear the extent to which additional legislation would be required to specify what the appropriate minimum standards are in each sector. 

The Government is currently consulting on a Code relating to “Fire and Re-Hire” arrangements. Such arrangements allow employers to dismiss employees and offer them new contracts - often with less favourable terms. This Code requires employers to use “Fire and Re-Hire” arrangements as sparingly as possible and only then after exploring all the alternatives and conducting a thorough and open consultation with staff. If implemented, the Code will not be mandatory although employment tribunals will be able to take the Code into account in determining the fairness (or otherwise) of an employee’s dismissal. The employment tribunal would also have the power to award an increase in compensation by up to 25% for the failure by an employment to follow the Code. 

In the case of Forstater v CGD Europe, the Employment Appeals Tribunal has determined that Ms Forstater (a researcher and campaigner) was discriminated against for having expressed on twitter her gender critical views that biological sex is immutable. It has been held that such beliefs are protected philosophical beliefs under the Equality Act 2010. It was also held that the decision not to renew Ms Forstater’s fellowship and the withdrawal of an offer of employment were acts of discrimination. 2023 will see further cases exploring the balance between an individual’s right of expression and the obligation for the employer to create an inclusive working environment.