New year, New rules
Posted on 5th January 2024 at 14:41
Last year several Acts of Parliament were passed that affected workers rights, with many set to come into effect this year. We also officially withdrew from the European Union, causing further uncertainty about which rights remain and which will be changed or lost.
With a lot of updates (and some slightly alarmist coverage) it is easy to lose track of the changes and the practical impact. So, here’s a look at what to expect in 2024, and what it means for your business.
The Equality Act and Working Time Regulations have been updated to preserve aspects of law established in European Case Law that otherwise would have been lost. These updates maintain the current situation by preserving protections around pregnancy, maternity, breastfeeding, indirect discrimination, equal pay the definition of disability and the right to normal pay during annual leave. It may seem counterintuitive, but thanks to the amendments there is no need for any practical change.
The government also published holiday pay and entitlement reforms on 1st January. Most of the regulations apply to leave years starting on or after 1st April, but there are some changes effective immediately. These include changes to when annual leave can be carried over to the following year and how the ‘normal’ rate of pay is calculated for holiday pay. The provisions allowing workers to carry over leave because their work was affected by Coronavirus have now been removed. Leave already accrued because of Coronavirus may be taken, or paid in lieu if employment terminates, until the 31st of March.
Parts of the holiday pay and entitlement reforms come into effect on April 1st, including a change to how people working irregular hours or only part of the year accrue annual leave, and provisions around rolled-up holiday pay for irregular and part-year workers.
On 6th April 2024, workers gain several additional rights:
The Flexible Working Bill will give workers the right to request flexible working from day one of the job and to make two requests within a 12-month period (previously limited to one). Employees are no longer required to predict or suggest ways to deal with the impact on the business. The period for employers to respond will reduce from 3 months to 2 and, if rejecting a request, the employer must consult with the employee and provide a reason for rejection. ACAS has not yet published an updated Code of Practice, but it is likely to suggest the consultation should involve discussing alternatives that may suit both parties.
The Protection from Redundancy (Pregnancy and Family Leave) Act extends protection from redundancy while on maternity or adoption leave. Currently, if there is suitable alternative employment it must be offered to employees who are pregnant or on maternity, paternity, or parental leave. The new regulations extend this to apply for 18 months after the child is born or adopted.
The Carer’s Leave Bill will give carers the right to up to five days of unpaid leave in addition to their annual leave.
The Paternity Leave (Amendment) Regulations 2024 introduce new rules for paternity leave. Fathers will have the right to take the leave in two separate one-week blocks, can do so at any time in the 52 weeks after birth, and only need to give 28 days' notice.
The new Code of Practice for Fair and Transparent Distribution of Tips takes effect. If you work in hospitality, or any other sector where tipping is common, you might consider a tipping policy in the interests of acting transparently. If this does affect you, get in touch for advice.
The Worker Protection (Amendment of Equality Act) Act 2023 places employers under an obligation to take reasonable steps to prevent sexual harassment of their employees. If an employee successfully claims for sexual harassment, they may receive an uplift in their compensation of up to 25% if their employer has failed in their duty. In all successful cases the tribunal will consider whether the obligation has been met or not – there is no need for the employee to bring an additional claim or demonstrate the failing. The Equality and Human Rights Commission will also be able to penalise organisations failing in their duty.
Still to be scheduled
Further rights are expected to come into force this year, although specific dates have not yet been set.
The Workers (Predictable Terms and Conditions) Act 2023 will give employees the right to request predictable working arrangements. Employers must give the application reasonable consideration and may only reject the request for one of the reasons specified in the Act, which centre around cost, practicality, and detrimental impact on the business. If the request is granted, the new contract must not be any less favourable than the previous one.
Under the Neonatal Care (Leave and Pay) Act , parents with a child in neonatal care will have the right to paid leave (up to 12 weeks) while their baby receives care, in addition to maternity and paternity leave.
And there could be more
EU law was set to be automatically revoked for the new year until the government changed its approach, instead considering EU regulations on an individual basis. Ultimately, only three regulations relating to employment law, specific to road tanker drivers and workers temporarily posted to another EU member state, were repealed at the end of 2023.
The government is now taking a more measured approach, addressing each regulation individually. While this avoided drastic changes all at once, it does leave potential for a lot of change over a longer period.
At the time of publishing, the EU Law Reform dashboard shows overall progress at 22%. The Department for Business and Trade is 33% through the work required, but the Department for Work and Pensions has made only 2% progress, with 5 of 224 laws repealed, but none amended, replaced or expired.
Of the regulations still waiting on consideration, those relating to employment concern:
Various parts of the Employment Rights Act 1996 regarding pregnant workers, equal treatment and parental leave
Working Time Regulations
Preventing unfavourable treatment of part-time or fixed-term employees
Consultation of employees
Maternity and Paternity leave
These could be retained, amended or revoked.
The government has outlined potential changes, suggesting a focus on reducing admin rather than substantive changes to rights. These suggestions include changes to the Working Time Regulations, holiday pay calculations and TUPE consultations, and limiting the length of non-compete clauses to 3 months. Given the number of rights introduced and extended already, it seems unlikely that the government will be reducing workers' rights.
How should I prepare?
As the changes are spread throughout the year, you should consider whether to make all the changes at once or as and when they come into effect.
Where the new rules introduce or extend rights for workers, there is no harm in introducing them early. You will simply be going beyond the current requirements for a period, so at no risk of breaking current law. This gives your workforce time to adjust to the new policies before they come into force and allows you to get the administrative work out of the way in one go.
Update policies and practices
The changes are spread across a range of areas, so it is likely you will need to update several of your policies. This could include flexible working, maternity and family-friendly, redundancy, homeworking, holiday pay harassment and bullying. You should also check your other policies for any knock-on effects of the changes.
This will require some thought about how to make the changes work in your business, for example: What steps can you take to prevent sexual harassment, and are they enough to be 'reasonable'? What else could be expected? Do you need to plan how you will cover work while staff have extended leave for neonatal care? If you’re likely to receive a lot of flexible working requests, how will you manage the burden of consideration and consultation?
We can support you through these considerations and help tailor policies and processes to suit your business needs while meeting your legal obligations.
Train your staff
There are a lot of changes for your staff to understand. Again, getting ahead and providing one big training session on all changes might be better than multiple updates, but it is a significant time commitment all at once.
We can support you to train your staff or work with your HR department to ensure they are ready for the changes. We can even offer drop-in sessions for staff to discuss their queries with us.
Do the changes affect ongoing claims?
The tribunal will consider what the law said at the time of the incidents in question. The law does not apply retrospectively.
From 2024, EU Law no longer automatically becomes part of UK law, but some cases brought this year will be about disputes that happened while EU law took priority over UK law. Where a claim concerns something that happened in 2023, the claimant may still rely on the rights they had in 2023, even if they are no longer in effect.
There are strict time limits on employment claims, in most cases this is three months less one day. However, the tribunal may allow claims after this deadline if there is a compelling reason for the delay.
If you face a claim for something that happened before the law changed, it is particularly valuable to seek legal advice to help you determine what the law said at the time, rather than what it says now.
Get in touch for advice and support around these changes.
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