Employment and pensions

UK Employment Law Coffee Break | Looking ahead to 2023, new strike laws announced and double jeopardy in disciplinary cases

Published on 12th Jan 2023

Welcome to our first Coffee Break of 2023 in which we look at the latest legal and practical developments for UK employers

Looking ahead to 2023

As is already evident, 2023 is seeing more disruption to public services with continued industrial action across a number of sectors and which will inevitably have a knock-on impact on the wider workforce. The government introduced some reforms to existing strike laws in 2022, and the government has announced further legislative reform on industrial action and strike law, to enforce "minimum service levels" in vital public sectors (see below).

Wellbeing in employment remains an important focus for both government, employers and employees. There are currently a number of proposed legislative reforms progressing through Parliament aimed at supporting employee wellbeing throughout employment, including extending the statutory right to request flexible working to all employees from day one of employment, a new right for carers to take a week's unpaid leave in a 12 month period, a right to a week's leave where a child receives neo-natal care, as well as an extension to the existing rules providing protection on redundancy for those on maternity leave, adoption and/or shared parental leave and to those who are pregnant or have returned to work from such family leave in the last 18 months. The government has also committed to the Department of Work and Pensions "thoroughly" reviewing "workforce participation" to understand the rise in economically inactive individuals which has been "seen particularly acutely within those aged over 50".   

With the difficult economic climate looking set to continue and potentially worsen over the coming year, it is anticipated that redundancies will be a prevalent theme as companies restructure or put a hold on pay rises and additional perks previously introduced to attract talent in a competitive market (we are still awaiting the government's promised statutory code on fire and re-hire). Employers can expect to see more individual and collective grievances and we are anticipating new ways of working impacting on the issues arising in Employment Tribunal claims in this context; including disputes as to where an employee's place of work is on a redundancy, the reasonableness of the exercise of mobility clauses, compliance with consultation requirements and discrimination claims around the limitations on flexible working.

We are also expecting an important decision from the Supreme Court on the ongoing holiday pay litigation which could have significant repercussions for many employers. The government response to the consultation on non-compete provisions remains outstanding; but we anticipate business protection challenges remaining a pressure point for employers in the current market conditions, particularly with higher levels of remote working making monitoring and identifying potential risks arguably more difficult.

You can read more about the employment legislative reforms that are already proceeding through Parliament or that may be on the cards this year in our earlier Coffee Break. Osborne Clarke's UK knowledge team have also set out their predictions for 2023 across a range of legal areas.

New strike laws announced 

Following on from reforms in July 2022, which enabled businesses to provide skilled agency workers to fill vital staffing gaps caused by industrial action and increased the damages a court can award for unlawful strike action, January 2023 has already seen the government introduce a new bill intended to ensure that vital public services will have to maintain a basic function and deliver minimum safety levels during industrial action.

Minimum safety levels will be set for fire, ambulance and rail services and the government will consult on the adequate level of coverage for these sectors, recognising that disruption to "blue light" services puts lives at immediate risk. The details on what minimum service levels look like for specific services will be consulted on by relevant government departments and set out in regulations. Minimum safety levels could include maintaining core service provision in emergency services and ensuring key transport, travel and trade routes do not completely shut down on strike days.

For the other sectors covered in the bill, which includes health services, education, nuclear decommissioning, other transport services and border security, the government expects to continue to reach voluntary agreements, and would only look to consult on minimum safety levels should these voluntary positions not be agreed.

Trade unions will be bound to follow the new laws and will risk an employer bringing an injunction to prevent the strike from taking place or seeking damages afterwards if they do not comply with their obligations. However, how quickly any proposed legislation comes into force remains to be seen with the unions stating that they will challenge the government's proposals.

In its press release announcing the latest reforms the government has stated that other countries across Europe and the wider world have similar laws in place, including Spain, Italy and France which have statutory minimum service levels in place. It gives the example of the Netherlands, Germany, Spain and France, which it states "all balance the right to strike with ensuring continuity of public services". The announcement goes on to state that the International Labour Organisation (ILO) recognises minimum service levels as a sensible solution to protect the public from the serious consequences of strikes and accepts limitations on strikes is permissible where life is endangered or where there are other serious consequences for the public. (The UK signed the ILO's Declaration on Fundamental Principles and Rights at Work in 1998.)  It adds that Canada, Australia and parts of the USA have a total ban on strikes when it comes to blue light services.

No rule against double jeopardy in disciplinary process

The Employment Appeal Tribunal (EAT) has recently considered a situation where the employer had dismissed an employee after reopening a previously concluded disciplinary process which had resulted in the employee being given a final written warning. The EAT concluded that the essential question in this situation is whether the dismissal was fair in all the circumstances; while it is unusual to reopen a previously concluded disciplinary process, there is no rule against double jeopardy in a disciplinary process.

The employee's trade union representative had argued that "re-opening the outcome of the … disciplinary proceedings … is inequitable and against natural justice" as the disciplinary findings against her were all dealt with and addressed; all the parties were bound by the decision to give her a final written warning, and therefore the same matters could not amount to any substantial reason to justify dismissal.  

The EAT looked at the decision of the Court of Appeal in Christou v Haringey LBC that ruled that doctrines such as res judicata or abuse of process do not apply to employers' disciplinary procedures so as to bar a second disciplinary process. The question for a tribunal would be whether it was fair to institute the second process – in the Christou case the justification was the fact that the allegations of misconduct involved a serious risk to a member of the public, and that new management were entitled to take a different view about the gravity of the conduct.

It is clear that reopening a previously concluded disciplinary process is an unusual step which will always require a sufficient justification. However, the ultimate question for a tribunal in an unfair dismissal claim will always be the factual question of whether in all the circumstances the dismissal was fair or unfair. In the case before the EAT, the employee's unwillingness to accept any responsibility for her failings and the new CEO's assessment that it was not credible or acceptable for her to continue in her role in light of her conduct were relevant to fairness and acceptable to consider, notwithstanding an earlier conclusion of the employer's disciplinary process.

This case has reaffirmed that it is within the band of reasonable responses for an employer to reopen concluded disciplinary proceedings where the specific facts make it a fair step. New management scrutiny, a heightened risk position, the attitude of the employee and their credibility and ongoing suitability for their role, as well as the impact on others, are all some of the possible factors that might trigger an employer to look again. Whatever the particular circumstances, following a fair process and ensuring there is no element of retaliation or victimisation will be essential. 

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* This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

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