Following a number of employment laws being passed in 2023, mainly as a result of Government-backed private members’ bills, this year will see many of the changes coming into force. We have outlined below a timeline of the key pieces of new legislation that employers should be aware of and their impact.
January – RUEL Brexit sunset provisions
Much of the new legislation coming into force in 2024 is a result of the Brexit sunset provisions in the Retained (Revocation and Reform) Act 2023 (RUEL), with major changes to the operation of retained EU law. As part of RUEL, the Equality Act 2010 (Amendment) Regulations 2023 are in force from 1 January 2024 and this legislation codifies a number of important EU equality rights (arising from EU law and ECJ cases) into UK domestic law, meaning workers can now rely directly on UK legislation and not on tribunals interpreting the Equality Act 2010 (EqA 2010) in a way which gives effect to EU equality rights. The amendments made to the EqA 2010 relate to:
- discrimination in access to employment
- discrimination related to pregnancy, maternity and breastfeeding
- indirect discrimination by association
- the definition of disability, and
- equal pay.
There are a various amendments made by these Regulations, but some of the ways they update the EqA 2010 include: giving individuals the right to claim indirect discrimination by association (covering those who do not hold the relevant protected characteristic but suffer the same disadvantage as those who do have that characteristic); confirmation that employment discrimination on grounds of breastfeeding falls under the protected characteristic of sex; providing for a ‘single source’ test to establish an equal pay comparator, meaning that there is no need for workers to have the same or associated employer and that the test is whether the workers’ terms are attributable to a single source or body and an extension of direct discrimination protection to cover discriminatory statements made in connection with decisions about to whom to offer employment or other forms of work, even where there is no active recruitment process ongoing and no identifiable victim.
The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023, which also came into effect on 1 January, affects three areas of employment: the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) (changes in force from 1 July 2024), working time, and annual leave and holiday pay (for holiday years starting on or after 1 April 2024). The amendments made to holiday pay and holiday entitlement simplify the calculation of irregular hours and part-year workers’ holiday entitlement by calculating the entitlement in hours rather than weeks and providing an accrual rate of 12.07% of hours worked for the proceeding pay period (to calculate holiday pay) and 12.07% of hours worked in the first year of employment, with holiday entitlement pro-rated to the hours worked by irregular and part-year workers. Further to this, rolled-up holiday pay (RHP) will also be permitted, which is when a rate of 12.07% is added on top of the hourly rate of pay, representing a worker’s statutory entitlement to a legal minimum of 5.6 weeks. It is at the discretion of the employer whether they calculate their workers’ holiday pay by using RHP or paying holiday pay when holiday is taken at the rate of a week’s pay for each week’s holiday calculated by using a reference period, which has previously been the case. Regulation 9 of the Working Time Regulations has been amended to clarify that businesses do not have to keep a record of workers’ daily working hours, if they are able to demonstrate compliance in other ways, and it is hoped this will avoid the burden of disproportionate record-keeping requirements.
April – Families and Carers workplace rights
From 6 April, we will see three new statutory rights which are aimed at creating a fairer workplace for those with families and caring responsibilities.
The Carer’s Leave Act 2023 provides a new statutory ‘day one’ right to unpaid carer’s leave for employees who are providing or arranging care for a dependant, meaning a spouse, civil partner, child, parent, someone living in the same household or a person who reasonably relies on the employee for care with a long-term care need. The entitlement is for up to one week’s leave in each rolling 12 month period and the leave may be taken in either individual days or half days, up to a block of one week. Employees will have to give notice of their intention to take the leave, on the basis that the leave is to be used for anticipated caring commitments, but they do not need to provide evidence of entitlement. The required notice period is either twice as many days as the period of leave required, or three days, whichever is the greater.
Similarly, the new Employment Relations (Flexible Working) Act 2023 will come into force on 6 April 2024 creating a ‘day one’ right to request, rather than the current requirement for an employee to have 26 weeks’ continuous employment by the date of the request, and this will also increase the number of requests for flexible working an employee can make, to two in every twelve months (from the current limit of one) and will mean that an employee does not need to explain the impact the employee thinks the request will have. It also introduces a requirement for employers to consult with employees before rejecting a request and the time for an employer to decide is reduced from three to two months, although a longer period can be agreed.
On the same day, the Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024are proposed to come into force which, if passed, will expand the current protection available to employees at risk of redundancy who are on, or returning from, maternity, adoption or shared parental leave. In relation to pregnancy and maternity leave, protection would begin from when an individual tells their employer they are pregnant and would end 18 months after either the expected week of childbirth or the actual date of birth if the employee has informed the employer of that. For parents taking adoption leave, the additional protected period would end 18 months after the child’s placement or the date they enter Great Britain (in the case of overseas adoptions). For employees taking six or more consecutive weeks of shared parental leave but who have not taken maternity or adoption leave, the additional protected period would end 18 months after the date of the child’s birth or placement (or date they enter Great Britain).
July – TUPE amendment
As part of the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023, as mentioned above, TUPE is also being amended. Currently under TUPE 2006, companies (with 10 or more employees) must inform and consult with employee representatives before a TUPE transfer (and arrange for elections for those representatives where there are none in place already).From 1 July 2024, companies with fewer than 50 employees and businesses of any size in relation to TUPE transfers of fewer than 10 employers will be able to consult directly with their employees if there are not worker representatives already in place.
September – Workers Predictable Terms and Conditions Act
Workers on atypical or insecure contracts – including those on zero hours contracts – will be given the right to request a more predictable working pattern under the Workers (Predictable Terms and Conditions) Act 2023. It is expected that this will come into force in September 2024. Eligible workers will be able to submit up to two requests per year. It will be determined once further regulations published, but it is likely the worker will have worked for their employer for 26 weeks before they can make an application for a more predictable working pattern. The employer will be obliged to deal with the application in a reasonable manner and notify the worker of the outcome within one month from the date of the application. A request can only be rejected on one of six statutory grounds (plus any others included in the forthcoming regulations), including the burden of additional costs and a detrimental effect on ability to meet customer demand. On 25 October 2023, Acas published a draft code of practice on handling this new type of request, as well as a consultation requesting views on the draft code. The consultation will remain open until 17 January 2024.
October – Sexual harassment prevention
The Worker Protection (Amendment of Equality Act 2010) Act 2023 will impose a legal duty on employers to take “reasonable steps” to prevent the sexual harassment of its employees, placing liability on employers and requiring them to be proactive, rather than reactive to sexual harassment. Initially it was proposed that employers would be required to take “all reasonable steps”, however a less onerous duty on employers has instead been adopted. The proposal that employers be liable for harassment of employees by third parties in the course of their employment has also been removed after being initially included in the bill. The Equality and Human Rights Commission will enforce the new legislation and if an employer is found liable, an uplift of up to 25% of compensation for sexual harassment will be granted.
Time to prepare
There are several changes to keep abreast of in the coming year and employers should review the relevant policies and procedures they have in place to ensure that remain fit for purpose and adequately reflect the rights of individuals going forward.