2024 brings a raft of new employment laws and an increased level of change and uncertainty that has not been prevalent in the last few years. Employers will need to ensure they have policies in place to ensure employees are aware of all the new laws and rights, that the relevant forms and processes have been put in place to ensure employees are able to request or inform employees of the various rights and that employers have considered these in advance of any hiring or restructuring plans that might be implemented in 2024.

EU Law Uncertainty

As we mentioned in June, now that it is 2024, the new Retained EU Law (Revocation and Reform) Act 2023 is in force. As a result of the changes by the government in June, all EU derived employment law that wasn’t expressly retired remains. Domestic law now has primacy over EU law (except in a situation where an international obligation requires the UK to give primacy to EU law) therefore uncertainty will no doubt abound when previously established points of law will be challenged in the UK courts. Employers will need to look out for any changes.

Carried over holiday allowances

Carried over leave entitlement in certain situations is allowed by current EU case law and the government is proposing to legislate the same rights in domestic law, also placing a positive duty on employers to ensure that workers take all holiday to which they are entitled. This will affect family leave rights and sick pay.

APRIL

Holiday Pay

As we noted in December’s update, the rules on holiday pay are changing from 1 April 2024. After Harpur v Bazel the government was keen to address this disparity to ensure that holiday pay and entitlement received by workers is proportionate to the time they spend working. The new regulations will:

• reduce time-consuming reporting requirements under the Working Time Regulations
• simplify annual leave and holiday pay calculations
• streamline the regulations that apply when a business transfers to a new owner.

This means that from 1 April 2024, the 12.07% method is back for workers that have irregular hours, or who work part of the year. You can read more details here.

On 1 January 2024, the government has introduced new guidance in relation to holiday pay dealing with:

• irregular hours workers and part-year workers
• accrual of COVID-19 carryover of leave
• rates of holiday pay and annual leave
• rolled-up holiday pay.

National Minimum Wage / National Living Wage

From 1 April 2024, workers aged 21 and over will be entitled to the National Living Wage, and from the same date, new rates will be in force. 

U18 / Apprentices - rises from £5.28 to £6.40

18 - 20 - rises from £7.49 to £8.60 

21 - 22 - currently £10.18, rate is abolished and will be included in the new 21+ NLW category at £11.44 (a 12.4% increase)

Flexible Working

The Employment Relations (Flexible Working) Act 2023 will come into force on 6 April 2024. You can refer to our previous article on flexible working. 

From 6 April 2024 employees will not need any qualifying service period to make a request for flexible working thanks to the Flexible Working Amendment Regulations 2023. 

The follow new protections will be in force:

• Employers will be required to consult with the employee before rejecting their flexible working request.
• Employees can make two statutory requests in any 12-month period (rather than the current one request).
• Reduced waiting times for decisions to be made (within which an employer administers the statutory request) from three months to two months.
• The removal of existing requirements that the employee must explain what effect, if any, the change applied for would have on the employer and how that effect might be dealt with.

There will be six grounds on which an employer can refuse the request.

Protection from Redundancy

From 6 April 2024 The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 amends the The Employment Rights Act 1996 by extending the current rights of employees that are entitled to be offered a suitable alternative vacancy (if any) in preference to other employees at risk of redundancy from those on family leave (maternity, adoption or shared parental leave) to include the following:

• Pregnant employees, from the time they inform the employer of their pregnancy, after 6 April 2024 until 18 months after expected week of childbirth.
• Employees on maternity or adoption leave, for a period of 18 months after either the expected week of the birth, or the date of the birth if the employer is informed. Applies to family leave started on or after 6 April 2024. Employees on shared parental leave will have to take a period of at least six weeks shared parental leave to qualify.
• Employees who have suffered a miscarriage, from the time they inform the employer of the pregnancy up to two weeks after the date of the end of the pregnancy, for pregnancies that end before 24 weeks. (If miscarriage occurs after 24 weeks it is classified as a stillbirth and the 18 months applies, as above).

Employers will need to be aware that this adds more priorities to the redundancy process, and may include complicated calculations particularly in relation to miscarriage. While it is only a requirement to offer a suitable alternative vacancy, not protection from being made redundant, those with a priority status can still be made redundant and there is no current guidance as to how to proceed if there are more employees with priority protection than there are alternative vacancies. Employers should be aware that this may cause extra stress in a restructuring process particularly where there are excellent candidates who do not happen to be priority employees.

Employers should also be aware that this legislation may increase the uptake of shared parental leave in some circumstances, and may also increase employees advising of pregnancies prior to 12 weeks.

Employers should also be aware that if it is found that a priority employee was not offered a suitable alternative vacancy that employee would have a claim for automatic unfair dismissal. They would not require any qualifying service to bring a claim (e.g. two years) and the compensatory award is uncapped. There may also be a parallel claim for discrimination. 

Carer’s Leave

The Carer's Leave Regulations 2024 are due to come into force on 6 April 2024 and introduces a new statutory right to leave to care for a dependant. This is a day-one right with no qualifying period, so long as the person being cared for meets the criteria. Dependent is defined as a spouse, civil partner, child, parent, a person who lives in the same household as the employee (other than by reason of them being their employee, tenant, lodger or boarder), or the wider catch-all provision, of a person who reasonably relies on the employee for care.

The dependent must have a ‘long-term care need’ where an illness or injury, physical or mental requires or is projected to require care for more than three months. A disability under the Equality Act 2010 or those with issues relating to old-age also qualify. Those with what the government deem ‘short-term care need’ can use dependents leave, or simply annual leave.

If any employee is dismissed for taking carer’s leave it will be classed as automatically unfair, meaning they would not require any qualifying service to bring a claim (e.g. two years) and the compensatory award is uncapped. There may also be a parallel claim for discrimination.

In any rolling 12-month period an employee who qualifies for Carer’s Leave is entitled to apply for up to one week unpaid and the employee can take this leave how best suits them in half day blocks from one half day up to a full week. The leave may be consecutive or nonconsecutive.

Employees must give advance notice of their request which may be postponed by an employer in some circumstances but only within the next month. It does not have to be written notice although it must make it clear that it is a request to take unpaid Carer’s Leave and what the requested period is. The advance notice should be the longer of either twice the length of time being requested, or three days, but the employer may waive this requirement.

SEPTEMBER

Predictable Working Hours

The Worker (Predictable Terms and Conditions) Act 2023 received Royal Assent in September 2023 and is due to come into force in September 2024. The new legislation is part of the Government’s agenda to provide security for the growing atypical workforce and those on uncertain zero hour contracts. 

Eligible workers who have unpredictable working patterns will have a new “right to request” a more predictable working pattern.  This could be in relation to the number of hours worked, the days and times worked, as well as the period for which they are contracted to work.  Up to two requests a year will be permitted. 

OCTOBER 

Prevention of sexual harassment obligations

The Worker Protection (Amendment of Equality Act 2010) Act received Royal Assent at the end of October and imposes a new obligation for employers to take reasonable steps to prevent sexual harassment of their employees and comes into force in October 2024.

Employers should be taking positive steps to address this requirement as policies will not be enough to have taken “reasonable steps” to prevent sexual harassment of employees.

ALSO WATCH OUT FOR

Trade Union Striking

In December 2023 the Supreme Court heard Trade v Mercer, an appeal brought by a care worker, in which the court must decide whether it is lawful for an employer to sanction an employee for taking part in industrial action without breaching their human rights.

Ms Mercer was suspended from her duties in response to arranging industrial action and prevented from working or contacting colleagues. She brought a claim for the loss of pay for overtime she lost out on due to being suspended. Her claim was brought under Trade Union & Labour Relations (Consolidation) Act 1992 (TULRCA), in particular s.146, which states that no detriment should be faced by striking. 

Judgment is expected in the spring where the Supreme Court will decide whether the ECHR offers protection to workers in such circumstances, as well as to whether as there is no protection under TULRCA whether this is justified under rights granted by ECHR, particularly article 11, the right to freedom of assembly. The Supreme Court will also consider whether there will need to be a declaration of incompatibility made.

Reform of non-competes

The government had announced last year the intention to reduce non-compete clauses to three months but this has not been followed with any kind of announcement as to how this will be legislated. In the meantime the current rules apply, although employers should be aware this may affect how employees react or negotiate if asked to sign up to longer non-compete clauses.

Whistleblowing

The government launched a review of the whistleblowing framework of laws in April 2024 but announced no further details as to the outcome of the review. 

See our previous article on the matter here - the review was intended to examine whether the current laws are fit for purpose, seeking input and evidence from whistleblowers, key charities, employers and regulators.

Fire and rehire

In 2023, the Government consulted on a draft statutory Code of Practice on fire and rehire, to which they have similarly not announced any further details.

If you'd like assistance in relation to the issues raised please do contact Carrie Beaumont at cbeaumont@ortolan.com