This year is shaping up to have a number of legislative changes to existing employment law and the introduction of new employee rights, such as carers' leave. There is also have the prospect of a UK General Election which may further complicate the employment law landscape. We have summarised some key upcoming changes.
These, together with wider EU developments will be further explored in our breakfast seminar on 23 January covering the latest employment, pensions and immigration issues.
Flexible working
From 6 April 2024 the right to request flexible working will become a "day one" right and so removing the current requirement for employees to have at least 26 weeks’ service to make a flexible working request. Employees will no longer have to explain what effect their requested change may have on the employer and how any such effect might be dealt with. They will be entitled to make two requests (instead of one) in any 12-month period and employers will have to respond to a request within two months (reduced from three months).
The measures will be supported by an updated Acas statutory Code of Practice which will come into effect in April 2024. This makes a number of changes to the existing Code in relation to the making of, and meetings to discuss, flexible working requests."
This is still a right to request flexible working and not a “right to have” flexible working so employers can still turn down requests they can’t accommodate. What will change is that new starters will be able to make a request from day one of their employment. Employers will need to be ready to consider and respond to any early requests that are made.
Redundancy protection during pregnancy, on maternity leave, adoption leave and shared parental leave
Currently, before making employees on maternity leave, shared parental leave or adoption leave redundant, employers are obliged to offer them suitable alternative employment where it exists in priority to anyone else who is provisionally selected for redundancy.
From 6 April 2024 this right will also apply during pregnancy and for an 18 month period after taking relevant leave (additional protected period).
Pregnancy: Redundancy protection would apply where the employee notifies their employer of their pregnancy on or after 6 April 2024. If the employee is entitled to statutory maternity leave, the protected period of pregnancy will end on the day the statutory maternity leave starts. If she suffers a miscarriage before the end of 24 weeks of pregnancy, the protected period ends two weeks after the miscarriage. After 24 weeks of pregnancy, and the employee suffers a stillbirth, then she is entitled to full statutory maternity leave.
Maternity leave: The additional protected period will end 18 months after the expected week of childbirth, unless the employee has informed the employer of the date of their child's birth (prior to the end of maternity leave), in which case the additional protected period will end 18 months after that date. This means that, if an employee takes their full 12 months of statutory maternity leave, they’ll receive an extra six months of protection following their return to work.
Adoption leave: The additional protected period ends 18 months after the child's placement for adoption or the date they enter Great Britain (in the case of overseas adoptions).
Shared parental leave: the extension only applies if the employee has taken at least six consecutive weeks of shared parental leave. However, if employees have taken maternity or adoption leave prior to taking shared parental leave they are entitled to the protected period for that original maternity or adoption leave, not a further extended period for subsequent shared parental leave.
The new legislation applies to employees whose maternity and adoption leave end on or after 6 April 2024 and to a period of six consecutive weeks' shared parental leave starting on or after 6 April 2024. The Government has announced that it will be producing guidance to support the commencement of the regulation.
As is currently the case, failure to offer suitable alternative employment (where vacancies exist) to protected employees risks claims for automatically unfair dismissal and possible unlawful discrimination claims. Employers will need to consider carefully vacancies across their organisations and consider their selection processes for redundancies if the number of protected employees exceeds available alternative employment available in redundancy situations. Employers will need to update their family friendly policies to take account of the new rights and ensure that line managers are aware of their obligations.
Paternity leave
Employees will have new rights where a baby's Expected Week of Childbirth (EWC) is on or after 6 April, or for children expected to be placed with an adopter, occurs on or after that date. Currently employees may take just one week in total or two consecutive weeks of paternity leave. From 6 April they will, alternatively, have the right to take paternity leave as two separate one-week blocks. The leave can then be taken at any time in the 52 weeks after birth or adoption (rather than having to take leave in the 56 days following birth). They will only need to give 28 days’ notice of their intention to take paternity leave (reduced from the previous position that required notice to be given 15 weeks before the EWC).
Carer's leave
From 6 April 2024 there will be a new right for employees with a caring responsibility for a dependant to take one week’s unpaid carer’s leave per year. This will be a "day one" employment right. Dependants are not only a spouse, civil partner, child or parent with long-term care needs but also anyone who reasonably relies on the employee for care. Long term needs are defined as a disability under the Equality Act 2010, an illness or injury (whether physical or mental) that requires, or is likely to require, care for more than three months, or old age. The right will be for those who want to be absent from work to provide or arrange care for that dependant.
Employees may take one week's unpaid leave to provide or arrange care in each rolling 12-month period. Requests can be in consecutive, or non-consecutive, half-days or full days up to and including taking a block of a whole week of leave at once. The employer can postpone a request due it disrupting the needs of the business but then must allow the leave to be taken within one month of the start-date of the leave originally requested. Rescheduling the leave should be done in consultation with the employee.
As with other types of statutory leave, employees are protected from detriment and dismissal because they take, or seek to take, carer’s leave (or the employer believes they are likely to do so). During the period of carer's leave, an employee is entitled to the benefit of all their terms and conditions, apart from the right to remuneration, and will remain subject to all of their usual obligations.
Employers will need to ensure that they either introduce a new policy or update any existing "time off" policies reflect this new right. To the extent that they already provide contractual rights to employees, then an employee could choose whether to use their existing contractual or new statutory entitlement.
Protection from harassment
In October 2024 the Equality Act 2010 will be amended to introduce a duty on employers to take “reasonable steps” to prevent sexual harassment of their employees in the course of their employment. This means that employers will have a new, proactive duty to prevent sexual harassment in the workplace and place greater responsibility on them to make workplaces safer for all staff.
Where an employment tribunal considers that an employer has failed to take “reasonable steps” and so breached this new duty it will have the power to uplift compensation by up to 25%.
Employers review existing policies and training in the coming months, to ensure they are compliant before the new legislation takes effect.
Changes to Working Time Regulations
From 1 January 2024 the requirement for employers to keep a separate record of the daily working hours of workers provided that they are able to “demonstrate compliance without doing so” has been removed from the Working Time Regulations (WTR). However, as employers will need to demonstrate compliance with the WTR in other ways (to ensure that maximum working hours and rest periods are not exceeded), it is not clear what the real impact of this change will be. The aim of this change however is to reduce reporting requirements for employers which the government considered “time consuming”.
From 1 January 2024 rules on carry-over of holiday, previously set out in case law, have been codified in new regulations under the WTR. These are explained in the article here [LINK].
New rules on how to calculate holiday entitlement and pay will apply to irregular hours or part-year workers whose leave years commence on or after 1 April 2024. We will report on these in the next issue.
Transfers of undertakings requirements for small businesses
From 1 July 2024 businesses with either fewer than 50 employees, or transfers involving fewer than 10 employees, will be permitted to consult with employees directly, and not undertake collective consultation as part of the transfer process, where there are no existing representatives in place. This change aims to streamline the TUPE transfer process.
Minimum service levels in strikes
The government published regulations setting out minimum service levels for rail, ambulance and border security staff during strike action and these came into force in December 2023. The regulations set minimum service levels for these during strike action. The Labour party has indicated that it repeal the regulations and underlying Act if they form the next government.
Amendment to National Minimum Wage (NMW) for live-in domestic workers
From 1 April live-in domestic workers (such as nannies and au pairs) will be entitled to the NMW.
Allocation of tips to staff
From 1 July 2024 employers will have a new obligation to ensure that 100% of tips are paid to workers in full without deductions and that the allocation is what the legislation describes as “fair” duty to ensure that all qualifying tips are "allocated fairly" to workers (including agency workers).
A draft statutory code of practice was published on 15 December 2023 to help employers and workers understand this legislation which is open for consultation until 22 February 2024. It aims to give hospitality employers and workers and other sectors that use tipping practices more detail on fair and transparent allocation of “qualifying tips”.
Legislation for which there is no definite commencement date
Workers' right to request a more predictable contract
The Workers (Predictable Terms and Conditions) Act is likely to come into force in September or October 2024.It will give workers and agency workers the right to request more predictable terms and conditions of work where there is a lack of predictability to their work pattern and to those on a fixed-term contract of 12 months or less.
A minimum service requirement to access the right, expected to be 26 weeks, will be specified in regulations. Employers must deal with a request in a reasonable manner and notify the worker of their decision within one month. It will be possible to make two applications in a 12-month period and applications may be rejected on statutory grounds. Workers may make claims based on procedural failings by the employer, unlawful detriment and automatic unfair dismissal. Regulations will provide further details of the statutory regime. Acas is consulting on a new Statutory Code of Practice until 17 January 2024 and non-statutory guidance will accompany the Code.
Neonatal Care (Leave and Pay) Act 2023
It is expected that from April 2025 parents of new born babies who are hospitalised in their first 28 days of life for 7 days or more, will have the right to take neonatal leave and pay for up to 12 weeks. This will allow parents to spend more time with their babies who are having specialist care, without the worry of taking unpaid leave or returning to work. Parents who take neonatal leave and pay (expected to be at the statutory prescribed rate or, if lower, 90% of the employee's average weekly earnings) will also be entitled to return to the same job after their period of absence.
Dismissal and re-engagement: new statutory code of practice
In response to the mass redundancies announced without consultation or notice by P&O Ferries, the government published the draft Code of Practice on Dismissal and Re-engagement for consultation, on 24 January 2023. Seeking to address "fire and rehire" practices, the government's response to the consultation and the final version of the Code of Practice are expected to be published in Spring 2024.
