2024 is set to be a year packed with a significant number of changes to UK employment law. This article sets out the key changes and what you need to consider for your business.
Contents:
Why is 2024 looking so busy?
For those of us who advise on HR and employment law issues, we are all aware that employment law is – at the best of times – an ever-changing landscape and moving of goalposts. Annually, we experience a sea of changes that you as HR professionals and business owners need to understand and implement. This year is no different!
In addition to many expected updates, there are also a number of changes this year which have become necessary because of Brexit. With the United Kingdom no longer being a member state of the European Union, we are no longer bound by EU laws and regulations. We had a grace period during which everything stayed the same, but a deadline was implemented by which time we would no longer be bound by the EU laws and we would have to put in place UK laws to replace the rights given to us by Europe to ensure that important rights, including for example discrimination rights, were not lost. The deadline was 31 December 2023, which explains why we have seen many changes take effect from 1 January 2024.
Working hours – flexibility versus certainty
This year, we are going to see some important changes to employees’ working hours. The issues of flexibility and consistency have been a key feature in employment law news and developments over the last few years. Flexible and hybrid working have been a popular topic since the Covid-19 pandemic and the issues surrounding the morality of zero hour working arrangements has similarly been a discussion point.
Flexibility
Those of us working in employment law and handling HR issues will no doubt be familiar with the flexible working rules currently in force. This year, these established rules are being amended to broaden their impact.
The Employment Relations (Flexible Working) Act 2023 gained Royal Assent in the Summer of 2023. This new legislation is going to change the flexible working request process in the following important ways:
| Current Law | New legislation |
| Only employees with 26 weeks service can make a flexible working request. | The right to make a flexible working request will become a day 1 right, meaning that employees can request it from their first day of employment. |
| Employees can only make 1 request in any 12-month period. | Employees will be able to make 2 requests in any 12-month period. |
| When employees make their request for flexible working, they have to include an explanation of the impact that granting their request will have on the employer’s business. | Employees will no longer need to explain the impact of granting their request. |
| Employers have three months to respond to a flexible working request. | Employers will only have two months to respond to a request. |
| Employers can refuse a flexible working request for the following statutory reasons: extra costs that will damage the business. the work cannot be reorganised among other staff. people cannot be recruited to do the work. flexible working will affect quality and performance. the business will not be able to meet customer demand. there’s a lack of work to do during the proposed working times. the business is planning changes to the workforce. | Employers will be able to refuse a flexible working request for the same statutory reasons. |
Next steps
These flexible working changes are coming into force from 6 April 2024. Before this date, we recommend that you get up to speed with these changes and that you review your existing flexible working policy and make any necessary changes. If you do not have a policy, it would be worth putting one in place.
Certainty
Consultation on Code of Practice for predictable working patterns
There is currently a consultation process ongoing to create a Code of Practice to sit alongside the Workers (Predictable Terms and Conditions) Act 2023 which introduces a new statutory right for workers to request a more predictable working pattern.
This will impact workers on zero-hour contracts mostly where their hours are variable and will also apply to workers under fixed-term contracts of less than a year. These categories of workers/employees will be able to request certainty on things like:
- the number of hours they work per day/week;
- the number of days they work per week; and
- a regular shift pattern.
The Code of Practice is awaited, but it is expected that this will include detail on how employers need to deal with requests when they are made and the grounds for rejecting any requests. It is currently expected that employers will be able to reject the requests if they have a good commercial reason for doing so, and the reasons for rejection are expected to largely mirror the reasons you can reject flexible working requests.
The consultation has now closed so we now eagerly await the Code of Practice to bring greater detail and certainty to the process. It’s expected the Act will then come into force in September 2024. Once we have the guidance, we would recommend updating existing policies or creating new ones (as appropriate).
Discrimination
There will also be various changes to discrimination law this year, which will serve to extend protection for employees.
Recent amendments to the Equality Act 2010
We have already seen some relatively minor changes come into effect on 1 January 2024, which are summarised below:-
- Updated guidance on definition of disability: Firstly, we have seen an amendment to the guidance on the definition of disability. As part of the test applied here, we would look at how someone’s health condition impacts their ability to carry out normal activities. Going forward, consideration should be given to a person’s ability to participate in their professional life and whether this is ‘on an equal basis with other workers’ as well as other activities in their home life.
- Indirect discrimination by association: The legislation is extended to allow claims for indirect discrimination by association. This means that someone who does not have a protected characteristic themselves, but still suffers the same disadvantage as those who do because of a certain rule applying, will be protected and able to bring a claim. An example of this would be protection being offered to a parent who is not disabled themselves but has a child who is.
- Discrimination on the grounds of breastfeeding: Specific provision is made for discrimination on the grounds of breastfeeding, with this falling under sex discrimination. This is something that had not been made expressly clear before.
- Extension to direct discrimination protection: There is also now additional protection at the recruitment stage. This covers discriminatory statements made by an employer about access to opportunities and not wanting to recruit people with certain protected characteristics. This will apply even where there is no active recruitment process ongoing, so it does widen the scope for claims even before someone is employed.
- Equal pay comparator: A ‘single source test’ has been introduced for establishing an equal pay comparator. This means that a comparator can work for a different business as long as the body responsible for setting the terms is the same. This will likely cause most of an impact for larger organisations with group companies where the pool of potential comparators will become wider.
New legislation on sexual harassment
More significantly though, new legislation relating to sexual harassment will come into force in October 2024. This will introduce a duty on employers to take reasonable steps to prevent sexual harassment in the workplace. If reasonable steps are not taken, an employment tribunal will be able to uplift compensation in a successful claim by up to 25%.
As things stand, it is unclear as to what will be considered to amount to reasonable steps. It’s worth keeping an eye out for a code of practice from the Equality & Human Rights Commission. We are hoping this will provide further clarity around this and it should be made available ahead of the changes in October.
Next steps
In terms of next steps for businesses in this respect, awareness should now be raised around these issues and, in particular, highlight what would constitute sexual harassment. Training should also be provided where necessary as this can help defend potential claims. Moving forward, clear policies will need to be in place for raising and dealing with concerns with a view to encourage a zero-tolerance culture.
More rights for families
2024 is going to see a wealth of changes to enhance family friendly rights. These changes bring much anticipated additional rights to those who have families or are attempting to grow their families.
The Carer’s Leave Act
Firstly, this year we are going to see the introduction of the Carers Leave Act. This will guarantee eligible employees the statutory right to take one week’s unpaid leave per year to care for a dependent. Dependents will include an employee’s spouse, civil partner, child, parent, a person who lives in the same household as the employee (other than situations where they are their employee, tenant, lodger or boarder).
The entitlement to carer’s leave will be a day one right, meaning that from the moment an employee joins a company, they will have access to this support. It is hoped that the flexibility afforded by the Carer’s Leave Act will contribute to improved mental health, reduced stress, and enhanced overall well-being for carers.
Next steps
This new right will come into force on 6 April 2024 and it would be worth considering implementing a policy before that date to deal with any requests when they come.
Protection from Redundancy (Pregnancy and Family Leave) Act 2023
As the law stands, women on a period of maternity leave and employees returning from adoption or shared parental leave have additional protection in redundancy situations. At the moment, these employees have priority status requiring them to be offered any suitable alternative employment in a redundancy situation ahead of other employees who have not taken that period of leave.
This new legislation is going to enhance this priority/redundancy protection so that it extends to pregnant workers and those working parents who have returned to the workplace after family related leave. It is expected that the right will extend to six months after the employee’s return.
This change will also come in from 6 April 2024 and will be a significant consideration for any employer making redundancies after that date.
Paternity leave
Last week the Government has published draft legislation in the Paternity Leave (Amendment) Regulations 2024 to change paternity rights. These regulations propose the following changes:
| Current Law | New proposals |
| Employees have to take their paternity leave in the 56 days after the birth of the child. | Employees will be able to take their paternity leave at any time during the 52 weeks after birth. |
| Employees must take their paternity leave in one block – two consecutive weeks. | Employees will be able to take their two weeks of paternity leave in two blocks of one week as an alternative to two consecutive weeks. |
| Employees need to tell you of their intention to take paternity leave 15 weeks before the expected week of childbirth. | Employees will only need to give their employer 28 days’ notice. |
Next steps
This will apply for all cases where the expected week of childbirth is on or after 6 April 2024 and so before this date it will be worth updating your policies to make it compliant with these changes.
Miscarriage Leave Bill and Fertility Treatment (Employment Rights) Bill
New legislation is at a very early stage to increase employees’ rights in situations where they suffer a miscarriage or they are undergoing fertility treatment.
The proposed new laws are at a very early stage so we do not know much yet, but we do know that it is proposed that employees’ rights will increase, for example, to include additional paid leave for appointments or after procedures have been performed. This is an area of the law where we need to wait and see what happens – and we will keep you updated on any developments.
The Neonatal Care (Leave and Pay) Act
The Neonatal Care (Leave and Pay) Act will enable employed parents of a baby who is admitted for neonatal care to take up to 12 weeks of paid leave, in addition to any other leave they are entitled to take.
This legislation is due to be implemented ‘in due course’ – there is no set date at this stage as other legislative changes (including to tax legislation) are needed first. This is another area where we should watch this space, and we will keep you updated.
Holiday pay
At the end of last year, the government announced a number of reforms to annual leave under the Working Time Regulations. These reforms came into effect on 1 January 2024 and will apply to holiday leave years starting on or after 1 April 2024. They will have the most impact on those of you who have workers with irregular hours or where you have seasonal and part-year workers.
There are four key changes to mention here:
1. Defining normal remuneration
Firstly, you may be aware that there was lots of previous case law around what elements of variable pay should be included in holiday pay calculations. It has now helpfully been confirmed what constitutes ‘normal’ pay in this regard. So, we should be including the following in our calculations:
- performance-based commission;
- length of service payments; and
- regular overtime.
2. Rolled up holiday pay and accrual method
There has also been an update on rolled up holiday pay and the use of an accrual method. ‘Rolled up’ holiday pay refers to a structure where a worker’s holiday pay is ‘rolled up’ into their wages. This is instead of individuals being paid separately when they take the leave. This practice was previously found to not comply with European law as it was thought to deter workers from taking their holiday. However, the reality is that this practice has been commonly used by many employers as it makes things easier when managing unpredictable hours.
For holiday years on or after 1 April 2024, rolled up holiday pay will be re-introduced as a lawful practice for irregular and part-year workers. Going forward, employers will be able to choose to use this method for those individuals. Alternatively, holiday can be paid when it’s taken in the usual way.
With regard to the accrual method now introduced, holiday entitlement for these workers will accrue at the rate of 12.07% of actual hours worked in each pay period, up to a maximum of 5.6 weeks a year. This percentage is used as it represents the proportion of a worker’s statutory entitlement to 5.6 weeks’ leave in relation to the remaining working weeks in a year. These workers will also accrue holiday during periods of sick or other statutory leave using an average over a 52-week reference period to calculate the holiday accrued.
3. Carry over of leave
Separately, the Government has given effect to current EU case law which permits workers to carry over annual leave entitlement in certain circumstances, as detailed below:
Carry over of the full 5.6 weeks annual leave will be permitted where a worker has been unable to take it due to family related reasons (for instance, maternity leave);
Carry over of 4 weeks’ leave will be allowed in cases of sickness absence. This will need to be taken within 18 months from the end of the leave year in which it was accrued; and
Carry over of some or all of a worker’s annual leave where their employer fails to encourage them to take it or doesn’t give them a reasonable opportunity to do so. This now places a positive duty on employers to ensure a chance is given to take leave. A key tip here will be to diarise sending an annual reminder to employees within their holiday years to encourage them to take their leave and explain that if they fail to do so, it may be lost.
4. Records of working hours
Finally, the new legislation clarifies that employers no longer need to keep detailed daily records of working time as was previously required. Adequate records will still need to be kept to demonstrate compliance with the Working Time Regulations, but the way in which this is done will pretty much be left to individual employers providing some compliance can be demonstrated.
Government guidance
It’s worth mentioning that the Government has published some new guidance on these reforms which you may find helpful. This includes examples of which individuals are considered to be irregular and part-year workers, which is now also defined in the legislation, and there are a number of illustrations provided of holiday accrual and carry over entitlement. You can find this by following the link below:
Holiday pay and entitlement reforms from 1 January 2024
These holiday pay updates should hopefully provide more clarity and practical solutions in this area. It will now be necessary, however, to review existing practices, policies and contracts to ensure they’re compliant with these changes.
More changes to come
In addition to these changes, there are a number of other changes to be aware of this year.
A new Code on Fire and Rehire
- In 2023, the Government issued a draft Code of Practice on how to deal with ‘Fire and Rehire’ situations. This occurs in situations where employers want to force through a change of terms and conditions where employees will not agree to proposals. Employers will terminate the existing contracts they have with employees and immediately rehire on the different terms they want to impose.
- The Government’s consulted on this issue in response to some very public and controversial cases, with the aim of protecting vulnerable employees from being disadvantaged.
- Since the draft Code was published, everything has gone quiet on this important topic. It is expected that we will see the Code being finalised this year with statutory changes being proposed and/or made. It is expected that the final code and legislative changes will set out a clearer, and fair, process to be followed in these situations. It is also expected that the law will make it clear that ‘fire and rehire’ (or dismissal and reengagement) ought to be a last resort option and that all other options should be considered before getting to that stage.
Confidentiality changes
- This is likely to make confidentiality provisions more restricted, with a requirement for them to be specifically advised upon in settlement agreements in order to ensure enforceability.
Code of Practice regarding Minimum service levels
- This new legislation is going to enable employers, during strike action, to serve a notice on Trade Unions requiring certain members to attend work to maintain a minimum service level to enable essential services to continue.
- If a notice is served, the Union must take reasonable steps to comply with that work order. The Code of Practice will outline what those reasonable steps are.
- Again, we will know more in the coming months and we will update you further when we can.
TUPE
- TUPE can be an absolute minefield for employers and tackling the collective consultation process can feel overwhelming – especially for small businesses.
- Some welcome changes have been introduced meaning that small businesses (with fewer than 50 employees) and businesses of any size undertaking a small TUPE transfer (where fewer than 10 employees transfer) will no longer have to appoint employee representatives. Instead, they will be permitted to consult with the employees directly.
- The exception to this is situations where employee representatives are already in place. If this is the case, companies must still consult with the representatives.
General election
Regardless of your political persuasions, we can all agree that this year’s General Election is likely to cause further change and unease for a while. More legislative changes will likely flow from this, especially if there is a change of political party.
The issues covered in this article were also discussed in detail in our recent employment law webinar. We will provide further updates on any developments as they arise throughout 2024.
Should you have any queries or require any support with training or otherwise preparing for these changes, our employment team is here to help.
