Employment Law Developments: What To Expect In 2024

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Ellisons Legal

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Ellisons Legal
Last year saw some significant employment law developments and this year promises to be just as eventful. Having welcomed in another year, we outline some significant legislative...
UK Employment and HR
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Last year saw some significant employment law developments and this year promises to be just as eventful. Having welcomed in another year, we outline some significant legislative developments which have either already come into force or are expected to do so later this year and also some other potential changes on the horizon (including a possible return of Employment Tribunal Fees).

Holiday Pay

The government has amended the rules around holiday entitlement and calculation of holiday pay and has published related guidance, including in particular in relation to so called "irregular hour" workers and "part-year" workers. Further details can be found here.

Updates to the Equality Act 2010

Key amendments to the Equality Act have be made in order to retain various EU-derived rights and principles in our domestic law, which otherwise would have fallen away as a result of legislation following BREXIT, from 1 January 2024. These changes are outlined in more detail here.

Carer's Leave

Expected to apply from 6 April 2024, there will be a new statutory unpaid leave entitlement for employees caring for a dependent with long-term care needs. This will be a "day one right" and those who qualify will be able to take up to one week of unpaid carer's leave in any 12-month period. Please click here for further information.

The right to make a Flexible Working Request to become a day one right

Employees will be able to make a request for Flexible Working from the first day of their employment, from 6 April 2024. For further information about what these changes will entail, please click here.

Enhanced Redundancy Protection: Pregnancy and Family leave

Extended statutory protection against dismissal for those on or returning from maternity, adoption, and shared parental leave in a redundancy situation will apply from 6 April 2024.. We explore this change here.

TUPE Consultation Obligations

Changes have been made to existing TUPE Regulations, removing the requirement for election of employee representatives for the purposes of informing and consulting on a TUPE transfer, where the transferring employer has fewer than 50 employees or where, irrespective of the size of the employer, the transfer itself is of fewer than 10 employees. In both of these situations, the obligations remain to inform and consult, however the employer can consult directly with the affected employees. Whilst these changes came into effect on 1 January 2024, they will only apply to TUPE transfers taking place on or after 1 July 2024.

Other changes expected to come into effect later this year

Flexible Working Requests

It is expected that in or around July 2024 there will be additional amendments to the Flexible Working Request regime to allow for:

  • two requests to be made by employees per year rather than one;
  • a reduction in the decision period within which employers are required to respond to a formal request, from three months to two months;
  • a requirement for employers to consult with an employee before rejecting their flexible working request; and
  • the removal of the current requirement for an employee to explain what effect the proposed change would have on their employer and how that might be addressed.

A Code of Best Practice is expected from ACAS later this year (in anticipation and subject to the final Regulations, this is currently available in draft form).

Predictable working patterns

Later this year, workers and agency workers will be afforded the statutory right to request a so called "predictable work pattern" in certain circumstances. Employers must deal with a request in a reasonable manner and notify the worker of their decision within one month. A maximum of two applications will be permitted during any 12-month period and requests may be refused on specified grounds. These changes are expected to come into force in or around September 2024. We will provide more detail once available.

Prevention of Sexual Harassment

This is an area to watch and one for all employers to take proactive measures in advance of the changes to come. A new positive duty for employers to proactively take "reasonable steps" to prevent sexual harassment of employees arising in the course of their employment is expected to come into effect in or around October 2024. In addition to undermining any potential defence to a claim, a failure to do so can also result in a 25% uplift in compensation where the employer is found to have breached this duty.

The changes will mean that employers facing an allegation of sexual harassment will need to demonstrate the specific and targeted measures they have implemented to comply with this positive duty in order to avoid liability.

There is no definition of "reasonable steps" in the proposed legislation. It will vary according to such factors as the size, nature and resources of the employer. Broadly, however, an employer should consider reviewing and continually monitoring equality and anti-harassment policies and practice as well as ensuring these are effectively communicated to the workforce. Provision of regular targeted and effective training on a cyclical basis will also be paramount. There are many steps employers can proactively take in anticipation of the new regime to help them understand the size and nature of the problem, risk assess and then tackle and manage with view to seeking to eliminate the occurrence of sexual harassment in future.

The Equality and Human Rights Commission intends to update its technical guidance, Sexual harassment and harassment at work, to reflect the new duty and this will be a must read to gain a better understanding of how the Tribunal may view what constitutes "reasonable steps".

Other key employment law developments to look out for

On 24 January 2023, a consultation was launched seeking views of the draft Statutory Code of Practice on Dismissal and Re-engagement (otherwise known as "fire and rehire"). The response to the consultation is awaited but it has been indicated that it will be published in Spring 2024 along with the final version of the Code.

On 29 January 2024, the Ministry of Justice launched a consultation on the re-introduction of fees for employment tribunal claims and appeals to the EAT. Readers will recall that the previous attempt to introduce a fees regime in 2013 was quashed in 2017 by the Supreme Court in R (Unison) v Lord Chancellor [2017] UKSC 51 based upon its disproportionate impact on access to justice. The consultation proposes a "modest" £55 issue fee for most employment tribunal claims. The consultation runs for eight weeks from 29 January to 25 March 2024, so watch this space!

Comment

Whilst a number of these changes are not expected to come into effect until Spring or later, it is important for employers to be aware and if necessary to plan any required changes to policies and internal practices to ensure a smooth transition and compliance.

It will be interesting to see whether a new regime of tribunal fees comes into being and what, if any, impact this will have on the number of claims brought.

The new duty to prevent sexual harassment is not one that can be ignored and proactive preparatory steps are to be recommended. With this and other changes, we encourage employers to carry out a "health check" of their existing contracts, policies and procedures to ensure that these changes are suitably captured and where necessary to provide training to staff (including HR and managers) to raise awareness and ensure compliance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Employment Law Developments: What To Expect In 2024

UK Employment and HR

Contributor

Ellisons Legal
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