As we end 2022 it’s time to reflect on what we have learnt from the past year and consider how we can start the New Year with the best intentions for 2023.

Following the pandemic, last year saw the shift from working entirely remotely to return to the office environment, with some companies requesting for staff to be back in the office full time, and many beginning to focus on implementing more permanent hybrid working arrangements.

The outbreak of the war in the Ukraine and the unfolding of a major cost of living crisis has presented a new set of challenges for many businesses just as they were emerging from the impact of a global pandemic.

With another year of challenges and disruptions behind us, we look back over the key topics we’ve covered this year in our TLT handbook series and look ahead to issues likely to be in focus for 2023.

Growing your workforce

We started the year looking at recruitment and retention. Employing enough staff to carry out necessary roles is one thing but having a workforce who align their values and behaviours with your brand is paramount to success. Using a values-based recruitment process and investing in staff training is key to recruiting and retaining the best future talent.

Recruitment processes may vary depending on the nature of your organisation but will typically consist of:

• Identifying a vacancy
• Writing the job description and preparing an employee specification
• Advertising and inviting applications
• Shortlisting and selection
• Making an offer of employment

We discussed the importance of ensuring that job applicants are protected under our equality legislation against unlawful discrimination on grounds of sex, age, race, disability, sexual orientation, religious belief, political opinion, pregnancy/maternity status and marital/civil partnership status. This applies to all aspects of the recruitment process, from advertising and shortlisting to decisions on appointment.

We also reminded employers of the need to be alive to a number of other legal considerations in the lifecycle of a recruitment process such as whether they are required to collect monitoring information for the purposes of submitting annual equality monitoring returns under the Fair Employment and Treatment (Northern Ireland) Order 1998 and having an eye to issues such as national minimum wage and equal pay when setting pay and benefits.

Policy considerations in light of legislative developments

Despite the political instability at Stormont, we discussed two significant pieces of NI legislation regarding employee leave entitlements introduced in the Spring of 2022.

1. The Parental Bereavement (Leave and Pay) Act (Northern Ireland) 2022 made provision for eligible parents to take 2 weeks’ paid leave following the death of a child under 18, or if they suffer a stillbirth from 24 weeks of pregnancy. The legislation also provides for the introduction of paid leave to women who suffer a miscarriage. A two month consultation on Miscarriage Leave and Pay opened in October 2022.
2. The passing of the Domestic Abuse (Safe Leave) Act (Northern Ireland) 2022, entitles victims of domestic abuse to no less than 10 days’ paid leave (whether or not taken as a single or continuous period) in each leave year for the purpose of dealing with issues related to domestic abuse. This is known as ‘safe leave.’

These legislative developments mark an important expansion of employee ‘family friendly’ rights at work and recognise that those who are experiencing extremely challenging circumstances in their personal lives are entitled to additional, and specific, rights and protections in their employment.

The legislation sets out a minimum framework, however there is nothing to stop forward-thinking employers from putting in place additional support and benefits at work for employees experiencing a loss or suffering from domestic abuse.

Protecting confidential information and business interests

In June and July of this year, we took a look at the steps business can take to protect their confidential and business sensitive information both during the lifecycle of the employment relationship and after it ends.

During the employment relationship, many employees will have access to business-critical information, for example, arrangements with customers and suppliers, financial information such as sales and profit figures, projections, business plans or salary and benefits information for key employees. Certain implied duties owed by employer to employee, such as the duty of fidelity and confidentiality, will act during employment to protect the business in the event of an employee using confidential information for their own interests.

When employment terminates, an employee will continue to owe their employer an implied duty of confidentiality, however, this will cover confidential information that amounts to a genuine trade secret only. It is for this reason that many employers impose their own post-employment contractual restrictions, in the form of restrictive covenants and express confidentiality clauses. These types of clauses are commonly and more appropriately placed into the employment contract rather than a company policy or handbook because:

1. They need to have contractual effect. Many employers will have handbooks and policies which are not contractually binding in order to give them maximum flexibility to update or amend as necessary
2. Restrictive covenants must be drafted with specificity based on the employee they are intended to apply to. A widely drafted set of covenants which are generally applied to an entire workforce potentially risks being unenforceable and thus not providing the business with the protections that were intended.

Slavery and Human Trafficking

Moving into Autumn we prepared a re-cap on business requirements with regard to modern slavery. Section 54 of the Modern Slavery Act 2015 requires large business to produce a slavery and human trafficking statement each financial year. The statement is intended to improve transparency in business supply chains and encourage businesses to take steps to avoid any association with modern slavery. It must detail the steps the organisation has taken during the relevant financial year to ensure that slavery and human trafficking is not occurring in its supply chains or in any part of its organisation.

The requirement to publish a statement applies to:

• commercial organisations (including companies, whether incorporated in the UK or not, and partnerships, whether formed in the UK or not)
• carrying on a business or part of a business in the UK;
• supplying goods or services; and
• having an annual global turnover of £36 million or more.

If you are not already preparing an annual statement, we advised that you should consider your organisation’s financial status (taking into account any subsidiaries where the organisation forms part of a corporate group) in order to determine whether it is likely to meet the £36 million turnover threshold.

We delivered some important takeaways for employers regarding modern slavery considerations within the business supply chain, within policies and procedures, and commercial contracts.

Looking ahead to 2023…

There is little doubt that 2023 will bring with it further economic uncertainty and financial challenges for businesses and individuals alike. In terms of the likely issues employers can expect to face going into the new year, we expect there will continue to be further industrial action in the public and private sector as disputes over pay and conditions rumble on. Challenging times could also see many companies looking at ways to re-structure their business which could bring with it the potential amongst other things for redundancies.

In terms of legal changes, many will be watching the progress of the Retained EU Law (Revocation and Reform) Bill (known as the Brexit Freedoms Bill) which aims to remove from the UK statute book all retained EU law by 31 December 2023 except for those pieces of legislation the Government specifically decides to preserve.

In Great Britain, we expect to see reform of the process for requesting flexible working in 2023. The Employment Relations (Flexible Working) Bill confirms the Government’s intention to make the right to request flexible working at “day one right”, and if passed would also allow an employee to make two statutory requests for flexible working in a twelve month period. Currently this is just one. The timescale for considering flexible working requests could also be reduced from three months to two. Note that in Northern Ireland, these reforms where the existing statutory regime for considering flexible working requests remains unchanged.

Other expected legal reform in GB in 2023 includes the extension of existing redundancy protections for employees on maternity, adoption and shared parental leave; a Neonatal Care bill which providesfor up to 12 weeks leave and pay for employeeswhose babies (up to 28 days old) are admitted into hospital for a continuous stage of 7 full days or more, and a Carer’s Leave bill which aims to provide one week of statutory unpaid leave per year for employees with caring responsibilities.

And finally ….

The eagerly awaited decision of the UK Supreme Court in the Police Service of Northern Ireland holiday pay underpayments litigation is expected in 2023. The appeal is concerned with the extent of the holiday back pay that would be available to several thousand police officers and police staff, including how far back the claims may reach and the correct method of calculating “normal pay”. The hearing will run from 14 to 16 December 2022.