Employment law changes coming up in 2024

There are numerous changes in employment law coming into force this year, with a focus on families and making the workplace fairer.

As many of these changes are effective from April 2024, our employment law solicitors summarise the key developments and how they affect employees and employers.

Redundancy protection from pregnancy and family leave

Currently, employees who are on maternity, shared parental or adoption leave and are facing redundancy, have the right to have first access to a suitable alternative role over other employees.

From April 2024, The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 will extend this priority to:

• Pregnant employees*.
• Those who have returned from maternity leave, paternity leave, shared parental leave or adoption leave (up to 18 months after the birth or placing date).
• An employee who has suffered a miscarriage before the employer was made aware of their pregnancy.

*This only applies to those who are in a ‘protected period of pregnancy’ which commences once they have informed their employer that they are expecting.

These new rules will apply:

• Where the employee notifies their employer of their pregnancy on or after 6^th April 2024; and/or
• Where the period of maternity and adoption leave ends on or after 6^th April 2024; and/or
• To a period of six consecutive weeks’ shared parental leave starting on or after 6^th April 2024.

This extension will no doubt reassure employees who are about to have or have recently had a child and are facing redundancy, at what is often already an anxious time. However, for employers, it may pose challenges when it comes to identifying more vacancies and communicating these changes to those who chose not to have children or who are unable to conceive, who have less priority in a redundancy situation.

Failure to provide this opportunity for alternative employment can result in an unfair dismissal and/or discrimination claims. Employers should make sure their policies and procedures are updated ahead of the change.

Updates to requesting flexible working

Flexible working relates to working patterns or hours (for example, part-time or compressed hours), or location, e.g. working from home.

What’s changing?

From 6^th April 2024, employees will be able to request flexible working from day one of their employment; it will be a ‘day one right’.

Currently, workers have to be employed for at least 26 weeks before requesting to work flexibly, and can only make one request within a 12-month period. However, under the Flexible Working (Amendment) Regulations 2023, employees will be able to apply from the start of their employment, and they can now make two requests within 12 months.

Employees will also no longer have to explain the effect flexible working will have on their role or employer.

How long do employers have to respond to a flexible working request?

From 6^th April 2024, employers must consult with the employee if they are considering rejecting a request and definitely before rejecting it. They also have to respond to a flexible working request within two months. The current timeframe is three months.

Although the law is changing to allow employees to be more flexible in terms of hours or patterns or location earlier in their employment, this does not mean that flexible working requests will necessarily be granted. The employer’s current assessment and approval process will still apply.

How can employers prepare for changes to flexible working?

The first step is to review the flexible working policy and amend it in line with the changes coming into force in April 2024.

It is also a good idea to communicate the changes (both to the law and your policy) to managers as they will need to prepare for a possible increase in team members requesting to work different hours or from home.

More clarity for fixed-term, agency and zero-hours workers

Later this year, fixed-term workers, agency workers and those on zero-hours contracts will have new entitlements to predictable working patterns under the Workers (Predictable Terms and Conditions) Act 2023.

From September 2024, these workers will be able to request a predictable working pattern. The request can include:

• Clarification on the number of days they work;
• The days of the week and times they work; and
• The period that they are contracted to work.

What is the process for predictable working pattern requests?

Predictable working pattern requests can be made twice in a 12-month period but there will be a minimum service requirement which is yet to be set, but is likely to be 26 weeks.

The process is:

• Submit an application that specifies the request, e.g. working hours, and date they would like it to be effective from.
• The employer has to deal with the request within one month.
• Employers must hold a meeting with the worker/employee to discuss the application (workers have the right to be accompanied).
• If the employer accepts the request, they must issue a new contract that reflects the changes to their working pattern.
• If the request is refused, it must be clearly communicated to the worker and for one or more of the following grounds:
  • The pattern will have a negative effect on the worker’s ability to meet customer or client demand or on other aspects of the business;
  • It will have a detrimental impact on recruitment;
  • The burden of additional costs;
  • There is insufficient work during the proposed periods of work; and/or
  • There are planned structural changes.
• Employees and workers have the right to appeal if their request is rejected.

Employers can find guidance on managing practicable working pattern requests within the ACAS Code of Practice. If an employer fails to adhere to this process, they may be at risk of a claim against them.

Holiday, working time and TUPE

New legislation regarding holiday entitlement and pay, TUPE and Working Time Regulations came into force in January 2024, so whether you’re an employee or an employer, it is worth checking that you’re aware of what has changed.

Holiday pay and entitlement

From 1^st January 2024:

• Employees are entitled to 5.6 weeks of leave, comprising four weeks under EU law and 1.6 under UK law. The four weeks will be paid at the normal rate and the 1.6 weeks at their basic rate of pay.
• For part-year and irregular workers, holiday pay is calculated at 12.07% of actual hours worked in the previous pay period.
• Part-year and irregular workers are also allowed ‘rolled-up’ holiday pay, where holiday pay is paid on top of their hourly rate, instead of being paid for their leave when they take it.
• Workers can no longer accrue Covid-19 holiday but can use already accrued holiday until 31^st March 2024.
• Normal holiday can be carried over when:
  • The employer has not recognised the worker’s right to paid holiday
  • A worker has not been able to take holiday due to sickness or family-related leave
  • An employer has not given the worker an opportunity to take holiday (or encouraged them to)
  • A worker has not been warned by their employer that they risk losing their holiday entitlement at the end of the holiday year (and thus not having the opportunity to take leave)

If an employer fails to adhere to these new guidelines, they risk being subject to a claim by the worker or employee in question. If you are an employer who needs advice on updating contracts and policies with these changes, get in touch with our employment law solicitors.

TUPE

From this Summer, more businesses will have to consult with their employees ahead of a transfer.

Currently, organisations with 10 or more employees must arrange an election of employee representatives for those affected by a transfer to inform and consult them (unless there are no representatives in place already). Businesses with less than 10 employees do not have to do this.

For TUPE transfers taking place on or after 1^st July 2024, the following businesses will have to inform and consult directly with the affected employees (if there are no existing representatives in place):

• Businesses with less than 50 employees that are transferring to another organisation of any size, and
• Businesses with 50 or more employees and where the transfer affects less than 10 employees.

TUPE regulations can be difficult to navigate. Our Employment team has expertise in business transfers and TUPE law. Get in touch for straightforward, common-sense advice.

Working Time Regulations

The Working Time Regulations 1998 were introduced to implement the European Working Time Directive in the UK and remain in place despite the UK leaving the EU. They include standards for working time, breaks and rest periods, and apply to most full-time, part-time, agency and casual workers.

Since 1^st  January 2024, employers do not have to keep a record of the daily working hours for each worker as long as they can show that they have been compliant with weekly working limits, e.g. not exceeding 40 hours per week.

Carers given the right to time off work

From 6^th April 2024, employees who care for a dependant will have the right to a week’s unpaid leave every 12 months; something Carers UK has campaigned on for some time. A ‘week’ means the length of time the employee usually works over seven days.

Employees can either take a whole week off or take individual days or half days throughout the year.

A  ‘dependant’ is someone who has:

• A physical or mental illness or injury that means they’re expected to need care for more than three months.
• A disability (as defined in the Equality Act 2010).
• Care needs because of their old age.

Under the Carer’s Leave Act 2023, individuals who provide or arrange care for a dependant with long-term care needs will be entitled to time off work from day one of their employment. ‘Dependant’ includes a spouse, civil partner, child, parent or cohabitee. In this capacity, a person does not have to be a family member and can be anyone who relies on the employee for care is also considered a dependent.

The employee’s employment rights (like holidays and returning to their job) are protected during carer’s leave.

Employers do not have the right to refuse an employee’s request for carer’s leave. Furthermore, employees do not have to provide evidence that they are entitled to carer’s leave.

Rules for taking carer’s leave

Due to the nature of being a carer, employers should be flexible. However, some key requirements for statutory carer’s leave are:

• Employees must provide notice, including when they intend to take the leave; this can be verbal.
• The notice must be twice the length of the time being requested or three days, whichever is longest.
• The leave does not have to be taken as one full week or as consecutive days, however, carers must take a minimum of half a working day at a time.
• If an employee needs to care for more than one person, they cannot take a week of carer’s leave for each dependant; they are only permitted one week every 12 months in respect of all dependants.

How can employers prepare for this change?

Updating or creating policies is essential, as is communicating this new law with managers and other staff. It is recommended that employers implement a formal system for keeping track of carer’s leave requests (or adjust their existing system).

If an employer already offers time off, either unpaid or paid, for carers, they will need to consider whether this is offered on top of statutory carer’s leave and adjust their policies accordingly.

Paternity leave

From April 2024, the Government is making changes to statutory paternity leave. Find out more in our recent blog.

Further protection from harassment in the workplace

From late October 2024, employers will have further duties toward their workforce in protecting them against sexual harassment.

Currently, under the Equality Act 2010, an employer is liable for discrimination, harassment or victimisation by an employee, unless they can show that they took reasonable steps to prevent it. Reasonable steps include having an anti-harassment policy in place and providing regular training to all staff.

Under The Worker Protection (Amendment of Equality Act 2010) Act 2023, employers may have to increase compensation paid in a harassment claim if they are found to have breached their duty.

Whilst the current legislation already provides a defence to a harassment claim if the employer can show they had taken all reasonable steps to prevent it from happening, the new duty means the employer must now demonstrate proactive measures to prevent sexual harassment.

The new duty only applies to sexual harassment and not other protected characteristics such as race, age, sexual orientation or belief. It also does not apply to harassment which is related to sex but is not conduct of a sexual nature. The new Act does not contain any definition of what ‘reasonable steps’ actually are but the Equality and Human Rights Commission (EHRC) is working on a new statutory code that is likely to contain appropriate guidance.

An employer’s duty to prevent sexual harassment in the workplace will be enforceable by an employment tribunal, which has the discretion to increase the compensation by up to 25%.

How can employers protect employees from sexual harassment?

Generally speaking, but with the upcoming changes in mind, employers can protect their workforce by:

• Having a reporting system for complaints (all forms of harassment, not just sexual). This provides transparency and allows employers to spot patterns in behaviour. Employers should be mindful to consider the data protection implications of a register; it is a good idea to ask an employment solicitor for advice on this.
• Refreshing and re-circulating anti-harassment and/or bullying policies, and a training regime for staff if this is not already in place.

Further information

There are some crucial changes to employment law coming up in 2024, and failure to adhere to new legislation can put employers at risk of an employment claim. If you need advice on implementing or adjusting contracts, policies or procedures to reflect these changes, our employment lawyers are here to help.

If you are an employee and believe that your employer has failed in their duties, get in touch.

For an initial chat, call us on 0117 325 2929 or fill out our enquiry form.