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What to expect in 2024 – the top five changes on the horizon

With the New Year just around the corner, we round up our top five employment law changes that employers should watch out for in 2024.

Holiday pay and leave

This year, the issue of how to calculate holiday pay has continued to be a hot topic for employers and their advisers.  The Government published consultation in January on the thorny issue of calculating holiday pay for part-year workers following the decision of the Supreme Court in Harpur Trust v Brazel.   There were further Government proposals for reform in May, which included the introduction of rolled up holiday pay.  In October, we reported on the Supreme Court decision in the case of Agnew which dealt with claims for underpaid holiday pay.  The Court considered in particular whether a series of deductions is broken by a gap of three months or more.

The Government has now published draft regulations that will come into force in January 2024.  These draft regulations amend the Working Time Regulations and set out principles from caselaw that would otherwise fall away following Brexit.  They introduce new provisions for irregular hours workers and part year workers that will apply to holiday years that start on or after 1 April 2024.  These include new provision for rolled up holiday pay, for calculation of holiday pay at a rate of 12.07% (effectively overturning the decision in Harpur Trust on that point), and detail on what is included in ‘normal’ remuneration.  They also set out detail relating to the rules on carrying forward holiday from one year to another, particularly in the case of sickness and family leave. 

Calculation of holiday leave and pay is likely to continue to be in the spotlight next year as employers grapple with new legislation and any guidance issued by the Government. 

Statutory duty to prevent sexual harassment

A new statutory duty on employers to prevent sexual harassment in the workplace will come into force in around October 2024.  Employers will have to be able to show that they have taken ‘reasonable steps’ to prevent the sexual harassment.  In the case of a successful claim of sexual harassment by an employee, the Employment Tribunal will consider whether, and to what extent, the employer has breached the new duty.  It will then be able to award an increase of up to 25% of the compensation awarded to the employee.

What amounts to ‘reasonable steps’ is not clear.  The EHRC will be issuing updated technical guidance on the new duty, setting out steps that employers should take to comply with the law.  Employers should consider auditing their policies, procedures and training now, in preparation for the changes in 2024.

Further changes to the Equality Act will also come into force in January 2024 to safeguard principles from caselaw that would otherwise fall away as a result of Brexit.  Further details of those changes can be found in our separate post here.

Flexible working requests

Changes to flexible working requests are expected to come into force in July 2024.  The changes will simplify the information that employees are required to provide when making their request.  Employees will be able to make two applications in any 12-month period, rather than the current limit of one application.  Employers will not be able to refuse a request unless the employee has been consulted; and the period in which a decision must be made will be reduced from three months to two.

There is no change, however, to the grounds on which an employer can refuse a request for flexible working, and the new legislation does not make flexible working ‘the default’ as had previously been announced.  It remains a right to request, rather than a right to have, flexible working.  Secondary legislation was laid before Parliament this month which provides that an employee will not be required to have 26 weeks continuous employment to make an application on or after 6 April 2024.  There will be no conditions as to length of service for an employee to be able to make a request on or after that date.  This effectively means that the right to request flexible working becomes a ‘day one right’. 

 ACAS published a draft Code of Practice on handling requests for flexible working for consultation, which closed in September 2023.  It has announced that a final version of the statutory Code will be published in 2024. 

Employers will need to be alert to the changes to the flexible working request process and to the final ACAS Code when it is published.  A review of current policies and procedures may be necessary to ensure compliance.

Hiring agency staff to cover industrial action

In July this year, the High Court upheld a Judicial Review challenge issued by a number of unions concerned that new regulations introduced by the Government undermined the right to strike.  The Government had introduced the regulations in the summer of 2022, in the midst of the rail strikes, and allowed employment businesses to supply agency workers to cover the work of striking employees.  This had previously been prohibited.  The High Court quashed the Government’s regulations, finding that the Secretary of State had failed to comply with his obligations to consult.  As a result, employment businesses cannot currently supply workers to cover the work of striking workers.

The Government has now announced fresh consultation on amendments to enable employment businesses to supply agency workers to cover strikes in any sector.  The consultation is accompanied by an impact assessment in relation to the proposed measure.  Consultation will close in the New Year. 

Employers that recognise Unions should watch developments on this issue in 2024 closely.

Family friendly rights

The Carer’s Leave Act 2023 received Royal Assent in May and came into force in December 2023.  Draft regulations have now been laid before Parliament, setting out further detail of the right for employees to take carer’s leave.  Once in force, employees will have a new entitlement to take one week’s unpaid leave per year to provide or arrange care for a dependant with a long-term care need.  This will be a day one right.  The leave can be requested as half-days and does not need to be taken on consecutive days.  Employees will need to give twice the amount of notice of their intention to take leave as the amount of leave requested, or three days’ notice if greater.  The employer cannot require an employee to supply evidence in relation to the request for leave before granting the leave.  The regulations are due to come into force on 6 April 2024.

Enhanced redundancy protection will be available in certain circumstances in 2024.  Currently, a woman on maternity leave is entitled, if her role is being made redundant, to be offered alternative employment in any suitable vacancy available.  This gives an employee on maternity leave priority over other employees who are also at risk of redundancy.   Draft regulations have been laid before Parliament this month.  These draft regulations extend the period of protection to cover pregnancy, so that redundancy protection will start when the employee tells her employer about her pregnancy.  The period of protection is also extended to the period of 18 months from the expected week of childbirth, or the date of the child’s birth (if the employee has informed the employer of the child’s date of birth).  The provisions extending protection to pregnancy will apply where the employer is informed of the employee’s pregnancy on or after 1 April 2024.  The provisions extending the period of protection to 18 months after the child’s birth will apply to any maternity leave ending on or after 6 April 2024.  Similar provisions apply in relation to adoption and shared parental leave.

And finally….

The Government has announced the National Minimum Wage increase that will apply from 1 April 2024.

  • National Living Wage (NLW) (21 and over): £11.44
  • 18-20 year old rate: £8.60
  • 16-17 year old rate: £6.40
  • Apprentice rate: £6.40

Wishing you all a Happy Christmas and a prosperous New Year.

22 December 2023

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©2023 SCRASE LAW LTD. THIS POST IS FOR GENERAL INFORMATION ONLY AND IS NOT ADVICE. YOU ARE RECOMMENDED TO SEEK PROFESSIONAL ADVICE BEFORE TAKING ANY ACTION ON THE BASIS OF THIS POST