In recent years, very little has changed in terms of employment law, with any legislation introduced relating to the COVID-19 pandemic. Four years on, and with businesses moving forward in quite a different employment landscape that encompasses a more agile and flexible way of working, we are now starting to see new and existing laws introduced that reflect this.
Several significant developments have already occurred this year, and there are more to come in 2024. In this article, we look at the employment law changes that have recently come into force, and those that are in the pipeline:
The Retained EU Law (Revocation and Reform) Act 2023
As a result of the UK leaving the European Union, the government introduced the Retained EU Law (Revocation and Reform) Act 2023. This legislation repealed UK legislation that was underpinned either by European Directives or case rulings, except for those that had been specified as being excluded.
The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023
The Retained EU Law (Revocation and Reform) Act 2023 allowed scope for a new piece of employment legislation to reform certain aspects of the Working Time Regulations 1998 (WTR) as well as the Transfer of Undertakings (Protection of Employment) Regulations (TUPE), all of which are European based legislation with European case rulings underpinning.
Whilst The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 came into force on 1 January 2024, it contains differing implementation dates depending on the area of law, as set out below:
1. Record keeping of working hours
The government deemed that the requirement for employers to keep records in line with European case law was disproportionate and removed the requirement for employers to implement a system for recording daily working hours.
By reforming the WTR under The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023, it now allows employers to create, maintain, and keep records in a way that they believe to be reasonable in the context of their own business rather than being obliged to keep a record of daily working hours. However, it is not about removing the obligation entirely, as employers must be able to still evidence their compliance with the WTR.
2. Holiday entitlement and pay for irregular hours and part year workers
Additional reforms to the WTR and to repeal European case rulings (specifically the Harpur Trust case), were also made, but in respect to how holiday entitlement and pay for those who work irregular hours and part year is managed.
The Harpur Trust case, in particular, brought several challenges to how holiday is managed for this type of worker. So, when the UK left the EU, and following the introduction of the Retained EU Law (Revocation and Reform) Act 2023 and then subsequently the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023, significant changes were introduced.
Essentially, the reforms overturn the Harpur Trust ruling which ruled back in 2022 that all workers, regardless of whether they worked irregular hours, or part year, must receive the full 5.6 weeks of paid annual leave.
Under the new rules, it means for holiday years that started on or after 1 April 2024 irregular hours or part year workers have their holiday managed in the following way:
- They receive a pro-rated amount of the 28 days statutory entitlement.
- Statutory holiday is no longer accrued in weeks but hours and is proportionate to the number of hours that they have worked in a pay period, at the rate of 12.07%, and accrues on the last day of each pay period.
- There is a new statutory definition of who qualifies as an irregular hours worker, as well as a part year worker. Those who are out of scope, must continue to have their holiday managed in the usual way.
- There is a new method for calculating statutory holiday entitlement which is the ’12.07%’ method (in each pay period, annual leave entitlement is equivalent to 12.07% of hours worked).
- There is a new method for calculating how much leave has been accrued during a period of maternity, family, or sick leave.
- Employers now have the option to use rolled up holiday pay instead of the usual 52 week reference period that is currently set out in the Employment Rights Act 1996.
It is important to note that these reforms take effect for holiday years that started on or after 1 April 2024, therefore if you have irregular hours and part year workers, but your current holiday year started before 1 April 2024, then the Harpur Trust ruling continues to apply.
3. TUPE consultation obligations
A third area of reform is in relation to the TUPE laws on consultation. Currently, only in very limited circumstances can businesses consult directly with employees as part of a TUPE transfer process (i.e. the business is a micro business with other conditions set). In all other circumstances, an employer cannot consult directly where there are no appropriate employee representatives.
Moving forward, for transfers taking place on or after 1 July 2024, consultation directly with employees can take place when:
- SMEs with fewer than 50 employees are proposing a transfer of any size, and where there are no existing representatives already in place.
- A business of any size is proposing to transfer fewer than 10 employees and where there are no existing representatives in place.
It is important to note, that for those businesses that already have representatives in place, consultation must continue via these groups.
The Carer’s Leave Regulations 2024
The Carer’s Leave Regulations 2024 is a new statutory entitlement that came into force 6 April 2024, enabling employees to take up to one week of unpaid leave in any 12-month period to provide or arrange care for a dependant with a long-term care need, or who is of old age.
The definition of a ‘dependant’ is the same as that which is used for time of for dependency leave. Employers cannot deny an employee their entitlement to time off, however, they may require it be postponed if the date proposed would unduly disrupt the business.
The Flexible Working (Amendment) Regulations 2023
Significant changes to the rules on the statutory right to request flexible working changed in April with The Flexible Working (Amendment) Regulations 2023, meaning that for all applications received on or after 6 April 2024, the following statutory rules apply:
- All employees, regardless of length of service can submit a flexible working application.
- Flexible working is now a day 1 right for all employees.
- Employees can make two requests per any 12-month period.
- A request must be dealt with within two months of receipt of a request (assuming no extension is requested).
- Employers must consult with employees before refusing a request.
- Employees are no longer required to set out in their application form the impact that their proposed new working arrangement would have on their role and how it would be dealt with.
This is a significant development, in particular, the day 1 right and the allowance of two requests in any 12-month rolling period. However, only one request can be ‘live’ at any given time, which is defined within an updated Acas Code of Practice.
Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 (Protection from redundancy)
The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 amend existing laws that give certain employees extra protection from redundancy by giving a statutory right to be automatically given suitable alternative role over other employees when made redundant.
The prior rules applied only to those on adoption, maternity and shared parental leave and only applied during the period of absence from work, coming to an end when they returned to the workplace. However, under these Regulations, not only has the period of protection been extended, but the protection also applies to pregnant workers.
Therefore, the following employees will have the right to be automatically given a suitable alternative role if made redundant:
- Pregnant workers who have informed their employer of their pregnancy on or after 6 April 2024. If a miscarriage occurs before the 24th week of pregnancy, the protection will continue for a period of two weeks. In the event of it occurring after the 24th week, then the rules apply that apply in a maternity leave situation.
- Those on maternity leave will be protected for a period of 18 months from either the first day of the estimated week of childbirth, or the date of birth (if communicated to the employer before the end of the mat leave period).
- Those on adoption leave will be protected for a period of 18 months from either the date of the placement (for UK adoptions), or 18 months from the date of entry into Great Britain (overseas adoption).
- Those on shared parental leave will continue to be protected until the end of either the period of shared parental leave when it is less than 6 weeks in duration, or 18 months from the child’s date of birth when more than 6 weeks consecutive shared parental leave has been taken.
Employment (Allocation of Tips) Act 2023
When introduced, the Employment (Allocation of Tips) Act 2023 will entitle workers to receive tips, gratuities and service charges paid by customers in full, meaning that an employer will be required to pass on all tips without deduction.
This legislation is expected to come into force 1 October 2024. A new Code of Practice will be published to accompany the new legislation and employers will be required to have a written policy where tips are awarded on more than an occasional and exceptional basis.
Worker Protection (Amendment of Equality Act 2010) Act 2023
The Worker Protection (Amendment of Equality Act 2010) Act 2023 is coming into force on 26 October 2024 and will place an increased responsibility on employers to prevent sexual harassment in the workplace.
Workers (Predictable Terms and Conditions) Act 2023
The Workers (Predictable Terms and Conditions) Act 2023 is expected to come into force later this year and could possibly be around September/October. When introduced, this Act will give all workers (which means all employees, agency workers, casual staff) the statutory right to request more predictable terms and conditions of work where there is a lack of predictability in their work pattern. This could be either to the number of hours worked, the days of the week worked as well as the times on these days worked, and the period for which the worker is contracted to work (for example, a fixed term contract of less than 12 months).
Neonatal Care (Leave and Pay) Act 2023
The Neonatal Care (Leave and Pay) Act 2023 will give employees a new statutory right entitling them to take a period of leave of absence when their baby requires neonatal care. Whilst it was passed as law back in 2023, we don’t expect it to be enforced until 2025.
Once introduced it will apply to someone with parental or other personal relationship with a child that is to receive or has received neonatal care. The entitlement for leave will be a day 1 right but the employee will require the usual 26 weeks qualifying service to be entitled to statutory pay. The total amount of statutory neonatal leave will be capped at a maximum of 12 weeks.
