As we come to the end of 2023, there has been a rush on new employment legislation to come into effect in 2024.

Holiday leave and pay

As mentioned here the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 were laid before Parliament on 7 November 2023 and are due to come into force on 1 January 2024. The regulations make various changes to the Working Time Regulations 1998 (WTR 1998).  In summary:

  • Carry over of leave: The new regulations will restate the effect of retained EU case law regarding the carryover of holiday in certain situations. As such, with effect from 1 January 2024, employers must ensure that their holiday policies allow for the following:
    • Where a worker is absent due to sickness and is unable to take all or some of their annual leave entitlement in a leave year, the worker is entitled to carry forward such untaken leave into the following leave year provided it is taken within 18 months from the end of the leave year in which the entitlement originally arose. This only applies to the four week’s leave under regulation 13 WTR 1998.
    • Where a worker is absent as a result of the employer (i) failing to recognise a worker’s right to annual leave or payment; (ii) failing to give the worker a reasonable opportunity to take the leave or encourage them to do so; or (iii) failing to inform the worker that any leave not taken by the end of the leave year, which cannot be carried forward, will be lost, then the worker is entitled to carry forward any leave under regulation 13 WTR 1998 which is untaken in that leave year or has been taken but is not paid in accordance with the regulations.
    • Where a worker is absent due to maternity or other forms of statutory leave and is unable to take some or all of their annual leave entitlement, then the worker is entitled to carry forward their leave both under regulation 13 and 13A WTR 1998 (being four weeks’ leave and the additional 1.6 weeks leave) into the following leave year. There appears to be no cut-off date by which that leave must be taken.
  • Simplifying the record keeping: With effect from 1 January 2024, the WTR 1998 will be amended to make it clear that an employer must keep records which are adequate to show whether the employer has complied with the limits regarding working time and rest time. There is no set manner or format in which the records need to be kept and an employer does not need to record each worker’s daily working hours if it is able to demonstrate compliance with the regulations without doing so.
  • Normal remuneration: The regulations incorporate a definition of normal remuneration which should apply to the four weeks’ holiday to which a worker is entitled under regulation 13 WTR 1998. From 1 January 2024, a worker will be entitled to be paid normal remuneration which will include the following:
    • Payments, including commission payments, which are intrinsically linked to the performance of tasks which a worker is contractually obliged to carry out.
    • Payments for professional or personal status relating to length of service, seniority or professional qualifications.
    • Payments, such as overtime payments, which have been regularly paid to a worker in the 52 weeks preceding the calculation.

Employers will need to ensure that their current procedures take into account such payments. It will also be important for an employer to determine whether it will follow the statute and treat the payments for the four weeks’ leave under regulation 13 differently to the leave under regulation 13A which can continue to be paid at basic pay.

  • Irregular hours and part year workers: There are various new provisions relating to workers who work irregular hours or part year which are due to apply to leave years starting on or after 1 April 2024. This includes:
    • Providing for accrual of holiday pay based on 12.07% hours worked in the previous pay period.
    • Rolled up holiday pay will be permitted for irregular hours and part year workers.
    • Part year or irregular hour workers will also be permitted to carry forward holiday

Employers should therefore start to review their workforce to determine if there are any irregular hour or part year workers. It will be necessary to consider whether the current provisions for payment comply with the changes proposed and, if not, whether there will need to be any changes to the workers contractual terms.

Consultation under the Transfer of Undertakings (Protection of Employment) Regulations 2002 (TUPE)

The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 also make changes to TUPE. The requirement to elect employee representatives for information and consultation purposes will change so that where an employer has fewer than fifty employees or it is an employer of any size involved in a transfer of fewer than ten employees, the employer will be able to consult directly with employees, where no existing employee representatives are in place. The change will apply for transfers taking place on or after 1 July 2024.

Carer’s leave

The Carer’s Leave Regulations 2024 were laid before Parliament on 11 December 2023 and are expected to come into force from 6 April 2024. The regulations provide that:

  • The right is a day one right.
  • Employees will be entitled to take carer’s leave where they have a dependant with a long-term care need and they are providing or arranging care for that dependent.  In addition, they must comply with the notice requirements.
  • A dependant is someone who is a spouse, civil partner, child or parent of the employee, or lives in the same household as the employee (other than by reason of being the employee’s boarder, employee, lodger or tenant), or reasonably relies on the employee to provide or arrange care.  A dependant will have a long-term care need if: (i) they have an illness or injury (whether physical or mental) that requires, or is likely to require, care for more than three months; (ii) they have a disability for the purposes of the Equality Act 2010; or (iii) they require care for a reason connected with their old age.
  • The employee is entitled to one week’s unpaid leave which can be taken either in one block or as single individual or half days.  The leave does not need to be taken on consecutive days.  The calculation of a week’s leave is decided by the number of days the employee is normally expected or required to work in a week at the time of making the request or calculated over a 52-week reference period where there are no usual working hours in a week.
  • The notice provisions require the employee to give notice of their intention to take leave in writing, setting out their entitlement to take carer’s leave, and the days or part day that they wish to take the leave.  The period of notice given should be at least twice as many days as the number of days leave which are requested to be taken or, at least three days’ notice.
  • The employer can postpone the leave for a period of no more than one month if the taking of such leave would unduly disrupt the operation of their business.   This should be done in consultation with the employee and the employer must give notice of the postponement.
  • The leave is unpaid but an employee is entitled to all the terms and conditions of employment which would have applied if they had not been absent.
  • Where an employee returns to work after an isolated period of carer’s leave, then they are entitled to return to the position that they were employed in immediately before the absence. 
  • An employee who takes or seeks to take carer’s leave is protected from any detriment or dismissal by the employer.

Rights for employees in a redundancy situation who are on statutory leave

The draft Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 were placed before Parliament on 11 December 2023 and are expected to come into force on 6 April 2024.

The regulations amend existing maternity, shared parental leave and adoption leave regulations to extend the existing right to be offered suitable alternative vacancies in a redundancy situation. This means that, where an employee is on maternity, adoption or shared parental leave and a redundancy situation arises, the requirement to offer suitable alternative employment will apply during pregnancy as well as maternity and adoption leave and for an additional protected period of 18 months after the expected week of childbirth or the date that the child is placed for adoption. For those taking shared parental leave, the additional protected period applies where those who are taking six or more consecutive weeks of shared parental leave but who have not taken maternity or adoption leave and will end 18 months after the date of birth of the child.  If an individual is taking less than six consecutive weeks of shared parental leave, then the current position will continue to apply (i.e. protection from redundancy where a redundancy situation arises while the employee is on shared parental leave).

The new regulations will apply where the employee’s statutory maternity leave period ends on or after 6 April 2024 and will apply regarding the protected period of pregnancy where the employer is informed of the pregnancy on or after 6 April 2024.

Flexible working

The Flexible Working (Amendment) Regulations 2023 were laid before Parliament on 11 December 2023 and are due to come into force on 6 April 2024. The Acas Statutory Code of Practice on Flexible Working has also been laid before Parliament on 11 December.

The regulations revoke regulation 3 of the Flexible Working Regulations 2014 which requires an employee to have been continually employed for a period of at least 26 weeks to be entitled to make a flexible working request. This means that an employee will be entitled to make a request from day one of employment.

Other provisions relating to changes to flexible working are contained in the Employment Relations (Flexible Working) Act 2023. This Act requires a statutory instrument to bring the changes into force. It is presumed that this will be with effect from 6 April 2024.

Employers should therefore ensure that they are ready to amend any flexible working policy they have in place to reflect these changes.

Minimum service levels

The Strikes (Minimum Service Levels) Act 2023 amends the Trade Union and Labour (Consolidation) Act 1992 so that minimum service levels (MSLs) can be applied during strikes in services within six key sectors. These are health services, fire and rescue services, education services, transport services, nuclear installations and radioactive waste and border security. The Act came into force on 20 July 2023, but the specific minimum service levels for the particular sectors require secondary legislation. The regulations in relation to ambulance service and rail services came into force on 8 December 2023, and the regulations with regard to the border security services on 12 December 2023.

In addition, the Code of Practice (Reasonable Steps for Trade Unions) Order 2023 came into force on 8 December 2023. The Order implements the Code of Practice which provides practical guidance for trade unions on the “reasonable steps” that they should take to be compliant with the new requirements. This arises where an employer issues a work notice and the union must take “reasonable steps” to ensure that all member of that union who are identified within the work notice comply with the notice. This enables the union to maintain statutory protection from proceedings in tort brought by the employer in relation to an act done by the union to induce a person to take part, or to continue to take part, in a strike.

Changes to Equality Act

The draft Equality Act 2010 (Amendment) Regulations 2023 have been placed before Parliament. They are due to come into force on 1 January 2024. The regulations reproduce in domestic law the effects of retained EU law which will cease to apply on 31 December 2023. This means that, effectively, there will be no change in the law and this will provide clarity to employers. The areas covered in the regulations are as follows:

  • Direct discrimination related to pregnancy, maternity and breastfeeding – the provisions clarify that a woman may be able to bring a claim related to sex discrimination where the less favourable treatment is because she is breast feeding and that the protected period relating to discrimination will include periods on maternity leave which is equivalent to compulsory, ordinary or additional maternity leave.
  • Providing the right to claim indirect discrimination where a person without a relevant protected characteristic suffers substantively the same disadvantage as those with that protected characteristic (associative discrimination).
  • Providing for a liability equivalent to direct discrimination in the context of access to employment and occupation as regards public statements outside a recruitment process.
  • Codification of the right to equal pay where employees’ terms are attributable to a single source (Article 157 of the Treaty on the Functioning of the European Union).
  • Clarifying the definition of disability in relation to employment and occupation, so that it takes into account a person’s ability to carry out normal day to day activities as reference to the individual’s ability to participate in their professional life on an equal basis with other workers.

Reasonable steps to prevent sexual harassment

The Worker Protection (Amendment of Equality Act 2010) Act 2023 introduces a duty on employers to take reasonable steps to prevent sexual harassment of their employees.  It also gives employment tribunals the power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached that duty.  The new legislation is expected to come into force in October 2024.

We will be considering all these changes and more in our webinar on What to Expect in 2024 which is taking place in January.