An update from Trowers & Hamlins
Certain changes will have already been ushered in by the time you read this bulletin! At the end of last year the Retained EU Law (Revocation and Reform) Act 2023 repealed directly effective EU law rights and removed the principle of the supremacy of EU law. It has also abolished the effects of the general principles of EU case law so there will no longer be a requirement for courts and tribunals to interpret retained EU case law to give effect to the EU law which it applied.
It remains to be seen what impact this will have on employment law, but in the meantime there are a few changes which have already been implemented.
The Employment Rights (Amendment, Revocation and Transitional) Regulations 2023 came into force on 1 January. These retain existing rights to holiday pay and leave as well as introducing simplified holiday entitlement calculations for those part-year and irregular hours workers whose leave years start on or after 1 April. They also provide that small businesses (with fewer than 50 employees) can consult directly with employees on a TUPE transfer if there are no employee representatives in place, as well as extending this flexibility to all businesses where a small transfer of fewer than 10 employees is proposed. Finally they have removed the uncertainty surrounding record keeping requirements under the Working Time Regulations (WTR), making it clear that employers will have to keep "adequate records" to demonstrate WTR compliance and expressly stating that there is no need to record a worker's daily working hours if it's possible to demonstrate compliance without doing so.
So far so good, but what other changes do we have to look out for now that 2024 has begun?
February/March
Civil penalties
Civil penalties for employers employing workers illegally are due to triple. This means that the current civil penalty for employers who employ an individual without the appropriate immigration permission in the UK will rise from £15,000 per illegal worker for a first breach, to £45,000. The current maximum of £20,000 per illegal worker for repeat breaches will rise to £60,000 per illegal worker.
The draft order implementing the increases provides that it will come into effect on 22 January 2024 or 21 days after it is made, whichever is the later. The order is still progressing through Parliament and has not yet been made so it will come into effect in February at the earliest.
March
Paternity leave
The draft Paternity Leave (Amendment) Regulations 2024 have been laid before Parliament this month and are proposed to come into force on 8 March. They will make changes to the way in which the statutory entitlement to paternity leave is exercised, including the requirements relating to notice and evidence, the period within which paternity leave must be taken, and the requirement that paternity leave be taken in one continuous period.
April
Three separate new rights are coming in on 6 April; flexible working will become a day one right, unpaid carer's leave will be introduced, and redundancy protection will be extended to those who are pregnant or on family-friendly leave.
Flexible working
The Flexible Working (Amendment) Regulations make flexible working a day one right by removing the requirement for employees to have at least 26 weeks' service to be entitled to make a flexible working request. They come into force on 6 April.
Meanwhile, under the Employment Relations (Flexible Working) Act 2023 the Employment Rights Act 1996 will be amended so that an employee will no longer have to explain what effect, if any, they think their requested change will have and how this should be dealt with. They will also be entitled to make two requests in any 12-month period, and an employer won't be permitted to refuse a request unless the employee has been consulted with. The time for an employer to come to a decision on a request will be reduced from three to two months. Although a government press release at the time the Act received Royal Assent (last July) stated that the changes would come into force in approximately one year (namely July 2024), it is now anticipated that they will come in at the same time as the day one right to make a flexible working request.
Carer's leave
The Carer's Leave Act 2023 will introduce a new and flexible entitlement of one week's unpaid leave per year for employees who are providing or arranging care and will be available to eligible employees from the first day of their employment. The entitlement is being implemented by the Carer's Leave Regulations 2024.
The new entitlement to statutory carer's leave will rely on the carer's relationship with the person being cared for. Carer's leave will be available for dependants, who are defined as a spouse, civil partner, child or parent of the employee, those who live in the same household as the employee and who are not the employee's boarder, employee, lodger or tenant, and those who reasonably rely on the employee to provide or arrange care. It will also depend on the person being cared for having a long-term care need. This will be defined as a long-term illness or injury (physical or mental) that requires (or is likely to require) care for more than three months, a disability as defined under the Equality Act 2010, or issues related to old age.
The leave may be taken in either individual days or half days, up to a block of one week. In order to take the leave notice of either twice as many days as the period of leave required, or three days, whichever is the greater, will have to be given. The notice does not need to be in writing and an employer cannot require evidence in relation to the request before granting the leave. An employer may waive the notice requirement where the other requirements of the regulations have been met.
Protection from redundancy extended
The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 will allow for the extension of existing redundancy protections while on maternity, adoption or shared parental leave to also cover pregnancy and a period of time after a new parent has returned to work.
Draft regulations, the Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 were laid before Parliament on 11 December 2023. They will extend redundancy protection during pregnancy and for the period of 18 months after the birth or placement of a child for those taking maternity, adoption or shared parental leave.
An employee's redundancy protection will start when they tell their employer about their pregnancy (on or after 6 April). If the employee is entitled to statutory maternity leave, the protected period of pregnancy will end on the day the statutory maternity leave starts. If the pregnancy ends and they are not entitled to statutory maternity leave, the protected period ends two weeks after the end of the pregnancy.
For those on maternity leave, the additional protected period will end 18 months after the expected week of childbirth, unless the employee has informed the employer of the date of their child's birth, in which case the additional protected period will end 18 months after that date. For those on adoption leave, the additional protected period ends 18 months after the child's placement or the date they enter Great Britain (in the case of overseas adoptions).
Finally, for those taking six or more consecutive weeks of shared parental leave but who have not taken maternity or adoption leave, the additional protected period ends 18 months after the date of the child's birth or placement (or the date they enter Great Britain).
"Fire and rehire" consultation response and final Code
We don't have an exact date for this one, but it has been confirmed that the government's response to the consultation on the draft Statutory Code of Practice on "fire and rehire" practices, and the final version of the Code will be published in the Spring.
The draft Code sets out the steps that an employer should take whenever it considers that it wants to make changes to employees' contracts of employment and then, if the employees do not agree to those changes, envisages that it might dismiss them and either offer re-employment on the new terms or engage new employees to perform the relevant roles on the new terms.
If the employer decides to go ahead with changes to terms and conditions the Code recommends that it should share as much information regarding the proposals as is reasonably possible, and engage in meaningful and good faith consultation. Any alternative proposals made by the employees should be considered, and the employer should be prepared to engage in a genuine exploration of whether they are workable or will meet the employer's objectives.
A failure to follow the Code will not give rise to any standalone claims, but it will be admissible in evidence in proceedings before a court or employment tribunal and any provision of the Code which is of relevance must be taken into account. If the claim concerns a matter to which the Code applies then a tribunal can increase any award it makes by up to 25% if the employer has unreasonably failed to comply with the Code. It can also decrease any award by up to 25% where the employee has unreasonably failed to comply with the Code.
September
Right to request a predictable work pattern
The Workers (Predictable Terms and Conditions) Act 2023 amends the Employment Rights Act 1996 (ERA 1996) to give workers and agency workers the right to request a predictable work pattern. The circumstances in which workers and agency workers will be able to do this will be where there is a lack of predictability as regards any part of their work pattern (fixed term contracts of 12 months or less are presumed to lack predictability); the change relates to their work pattern; and their purpose in applying for the change is to get a more predictable work pattern.
A maximum of two applications may be made in a 12-month period. The length of service requirement to access the right, which is expected to be 26 weeks, will be specified in regulations.
Employers, temporary work agencies or hirers will be able to reject applications based on statutory grounds. These will include the burden of additional costs, detrimental impact on the recruitment of staff or other aspects of the employer's business, or there being insufficient work during the periods the worker has asked to work. Workers and agency workers will have the right not to suffer a detriment short of dismissal for making an application under the procedure or for bringing proceedings to enforce the statutory right to request a predictable work pattern. It will also be automatically unfair to dismiss an employee for making an application under the statutory procedure or for bringing proceedings to enforce the statutory right.
October
Duty to take reasonable steps to prevent sexual harassment of employees
The Worker Protection (Amendment of Equality Act 2010) Act 2023 will amend the Equality Act 2010 to introduce a duty on employers to take reasonable steps to prevent sexual harassment of their employees, and give employment tribunals the power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached the new duty to prevent sexual harassment.
Other developments on the cards
Non-compete clauses
The government published its response to the consultation on reform of non-compete clauses in employment contracts back in May 2023. It intends to introduce a statutory cap of three months on non-compete clauses in employment and worker contracts.
The cap will only apply to non-compete clauses, and not to other post-termination restrictive covenants such as non-solicitation, non-dealing or non-poaching clauses. The government has stated that the primary legislation required to implement the cap will be introduced "when Parliamentary time allows".
Agency workers and striking workers
The government has launched a consultation (which closes on 16 January) on repealing regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 which prevents employment businesses from supplying agency workers to cover striking workers.
The follows the High Court's relatively recent decision in R (ASLEF and others) v Secretary of State for Business and Trade to uphold a judicial review challenge brought by 13 trade unions in relation to the revocation of Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 by virtue of the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022. Regulation 7 prohibited employment businesses from supplying temporary workers to cover the work of those taking part in official industrial action.
The High Court's quashing order provided that, with effect from 10 August 2023, the law would revert to the position before 21 July 2022 and so employment businesses will no longer be able to supply temporary workers to employers to cover those involved in industrial action.
The government only had two options for pursuing its plan to repeal regulation 7 following the High Court's decision. The first of these was to appeal the judgment and the second was to consult as required and place new regulations before Parliament. It has taken the latter approach.
The repeal of regulation 7 would enable employment businesses to supply agency workers to cover strikes in any sector. The government has described this as a "permissive" measure in that employment businesses would be permitted, but not required, to supply agency workers to cover strikes, and agency workers would be free to turn down any assignment offered to them. It would not prevent trade unions from calling strikes or affect the protections which are currently available to striking workers.
Neonatal care leave
The Neonatal Care (Leave and Pay) Act 2023 will allow eligible employed parents whose new-born baby is admitted to neonatal care to take up to 12 weeks of paid leave in addition to entitlements such as maternity and paternity leave. The entitlement will be available to parents whose babies are born prematurely or who are sick and require specialist care after birth. The new leave and pay entitlements are expected in April 2025.
Neonatal care leave will apply from the first day of employment to parents of babies who are admitted into hospital up to the age of 28 days and who have a continuous stay in hospital of 7 full days or more. Parents will have a right to neonatal care leave of at least one week and up to a maximum of 12 weeks regardless of length of service and those with at least 26 weeks' continuous service will have a right to receive neonatal care pay at a prescribed statutory rate. Parents taking neonatal care leave will have the same employment protections as those associated with other forms of family related leave, including protection from dismissal or detriment as a result of having taken leave.
And finally…
As if this wasn't enough to keep us on our toes, 2024 is likely to see a General Election. This may well entail some changes that we're not yet aware of, and other existing measures may be swept away. It's certainly looking like employers are going to have a busy year!
For further details on the employment law plans of the main political parties please read our bulletin, 'All change on the employment law front?'