There haven’t been many legislative changes in UK employment law in the last decade, but 2024 is set to buck that trend with new legislation coming into force (in part to deal with the consequences of Brexit) and lots of proposals for even more new legislation. The prospect of a new government may also lead to further change. HR practitioners are going to be busy!
We’ve whittled down the upcoming changes to those we think are most important for you to know.
On 8 November 2023, the government published the draft Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023, which are expected to come into force on 1 January 2024. The Regulations include (among other things):
- For part-year workers and irregular hours workers, employers will be able to calculate holiday entitlement using an accrual method based on 12.07% of hours working in the pay period. This reverses the impact of the UK Supreme Court decision in Harpur Trust v Brazel.
- Rolled up holiday pay will be permitted for part-year workers and irregular hours workers, which legalises a common practice.
- The “Covid roll-over rules”, which allowed employees to carry forward unused holidays for a period of two years in certain circumstances, will be revoked.
These will be welcome changes for employers, particularly those with part-year and irregular hour workers.
Right to request flexible working to become a “day one” right from 6 April 2024
The Flexible Working (Amendment) Regulations 2023 come into force on 6 April 2024 and remove the requirement for an employee to have been continuously employed for a period of at least 26 weeks to be entitled to make a flexible working request.
Further, the Employment Relations (Flexible Working) Act 2023 received Royal Assent on 20 July 2023. It makes provision for employees to be entitled to make two flexible working requests (previously one allowed) in any 12-month period and employers will have to respond to a request within two months (as opposed to the current limit of three months).
The Advisory, Conciliation and Arbitration Service (Acas) are expected to publish updated guidance in January 2024. Employers should familiarise themselves with the new guidance and making plans to update relevant policies in advance.
Right to request a more predictable work pattern
The new Workers (Predictable Terms and Conditions) Act 2023 is expected to come into force around September 2024. This Act amends the Employment Rights Act 1996 to give employees, workers, and agency workers the right to request a predictable work pattern.
Adopting a similar approach to the existing flexible working regime, the new right is likely to require 26 weeks qualifying service, and employers must deal with applications in a reasonable manner and can only refuse for one of eight statutory reasons.
Anyone engaged on a fixed-term contract for less than 12 months will be treated as having an unpredictable work pattern and so will fall within the scope of persons enabled to use this new right. Acas have published a draft Code of Practice to support the new legislation.
Transfer of Undertakings (Protection of Employment) Regulations (TUPE) Reform
When managing a TUPE transfer, currently micro businesses – those with fewer than ten employees – may inform and consult affected employees directly if there are no existing appropriate representatives in place (for example, if there is no recognised trade union).
However, larger businesses are required to arrange elections for affected employees to elect new employee representatives, if they are not already in place, which can add complexity to the process.
The Government will proceed with its proposal to remove the requirement to elect employee representatives for:
- employers with fewer than 50 employees; and
- employers of any size involved in a transfer of fewer than ten employees.
In either case, the employer will be able to consult directly with employees, where no existing employee representatives are in place. Where employee representatives – including trade unions – are in place, employers will still be required to inform and consult them.
This relaxation of the information and consultation rules will apply to any TUPE transfers taking place on or after 1 July 2024.
Enhanced redundancy protection for women in connection with pregnancy, childbirth, or maternity
The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 will come into force on 24 July 2024. While we are still awaiting the new regulations (which will include detail of the enhanced protections), this new legislation aims to enhance redundancy protection for pregnant workers and working parents returning to work after family-related leave.
It’s expected that the regulations will extend existing protections currently reserved for periods of maternity leave so that it begins from when an individual tells their employer they are pregnant and ends 18 months after the birth.
Employers should plan to update their family leave policies and redundancy procedures, and keep an eye out for the new regulations.
A new government
The upcoming general election could bring in a change of government and potentially significant changes to employment law. The Labour Party have promised an array of reforms they plan to introduce if elected. These include:
- a ban on zero-hour contracts;
- ending “fire and re-hire” practices;
- improvements to statutory sick pay;
- enhanced day one employment rights, including making the right not to be unfairly dismissed a day one right;
- extending unfair dismissal protection to all “workers”, removing the limits on unfair dismissal compensation and extending the time limits to bring an unfair dismissal claim;
- ensuring the National Minimum Wage would take into account the cost of living;
- the introduction of mandatory disability pay gap reporting;
- the introduction of legislation aimed at improving work-life balance, including the right to disconnect, and rights related to flexible working and caring responsibilities; and
- reforming worker status to remove confusion over the distinction between workers, employees, and self-employed.
Looking further ahead
Neonatal leave and pay
The Neonatal Care (Leave and Pay) Act 2023 is a new law that received Royal Assent on 24 May 2023. The new act provides parents with a right of up to 12 weeks’ leave and pay when their baby requires neonatal care in addition to existing parental leave entitlements. The intention behind the new Act is to provide parents whose new baby requires additional medical care with time and space with their child without encroaching on their maternity and/or paternity leave.
The length of the neonatal leave will depend on how long the child is in hospital, but parents are entitled to leave from as little as one week up to a maximum of 12 weeks.
Employees with a parental or other personal relationship with a baby who is receiving neonatal care will be eligible for neonatal leave. The finer details of the eligibility criteria are yet to be specified but they can be reasonably expected to mirror the criteria for paternity or shared parental leave i.e. the baby’s parent’s, an employee married to the baby’s parent, or an employee who is expected to have responsibility for care of the child.
While the right to neonatal leave will be a day one right, the entitlement to statutory neonatal care pay (SNCP) will require at least 26 weeks service and earnings of at least £123 a week.
The right to neonatal leave and pay will not come into force until April 2025 but employers should start planning for its introduction in advance.