There are lots of things in the pipeline for 2024 when it comes to employment law! The main changes are discussed below.
Flexible working
There are going to be changes to the flexible working regime. Under the Employment Relations (Flexible Working) Act 2023 an employee will no longer have to explain what effect, if any, they think their requested change will have and how this should be dealt with. There will be an entitlement to make two requests in any 12-month period, and the time for an employer to come to a decision on a request will be reduced from three to two months.
The government expects these measures to come into force by next July, and has also reiterated that the right to request flexible working will become a "day one" right (this is not provided for in the Act). In the meantime Acas has issued a consultation on an updated statutory Code of Practice and will also update the non-statutory Acas guidance which accompanies the Code.
Family friendly measures
The Carer's Leave Act 2023 will introduce a new and flexible entitlement of one week's unpaid leave per year for employees who are providing or arranging care. It will be available to eligible employees from the first day of their employment. They will be able to take the leave flexibly to suit their caring responsibilities and will not need to provide evidence of how the leave is used or who it will be used for.
The existing redundancy protections enjoyed by those on maternity, adoption or shared parental leave will be extended to cover a period of time after a new parent has returned to work by virtue of the Protection from Redundancy (Pregnancy and Family Leave) Act 2023. The detail will be provided by regulations, but the explanatory notes to the Act suggest that, by extending protection after a protected period of pregnancy, a woman who has miscarried before informing her employer of her pregnancy will also benefit from the redundancy protection.
There will be a new right under the Neonatal Care (Leave and Pay) Act 2023 allowing eligible employed parents whose new-born baby is admitted to neonatal care to take up to 12 weeks of paid leave in addition to entitlements such as maternity and paternity leave. The entitlement will be available to parents whose babies are born prematurely or who are sick and require specialist care after birth.
The government has stated that all of these entitlements will be implemented "in due course".
Right to request flexible working patterns
The Workers (Predictable Terms and Conditions) Act 2023 is expected to come into force next September. It will amend the Employment Rights Act 1996 to give workers and agency workers the right to request a predictable work pattern. Employers, temporary work agencies and hirers will be able to reject applications based on statutory grounds. Acas is due to produce a new code of practice to provide guidance on making and handling requests, a draft of which will be available for consultation this autumn.
Code of Practice on dismissal and re-engagement
The government launched a consultation, which closed on 18 April, on a statutory Code of Practice on Dismissal and Re-engagement. A failure to follow the Code will not give rise to any standalone claims, but it will be admissible in evidence in proceedings before a court or employment tribunal and any provision of the Code which is of relevance must be taken into account.
Changes to retained EU employment law
On 12 May the government issued a consultation; 'Retained EU Employment law: Consultation on reforms to the Working Time Regulations, Holiday Pay and the Transfer of Undertakings (Protection of Employment) Regulations'. The consultation, as the title suggests, focuses on three key areas: record keeping requirements under the Working Time Regulations (WTR), simplifying annual leave and holiday pay calculations in the WTR, and consultation requirements under TUPE. The consultation closed on 7 July and we are awaiting a response.
The WTR stipulate that records should be kept which are "adequate" to show the employer's compliance with the 48-hour week and with the requirement not to exceed an average of 8 hours in a 24-hour period for night workers. These records need to be retained for two years. However, uncertainty was introduced by a case which held that employers must have an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured.
The government is proposing to remove the uncertainty about record-keeping obligations by legislating to clarify that employers do not have to record the daily working hours of their workers.
The government is also proposing to simplify holiday pay and annual leave calculations by creating "one pot of annual leave entitlement" of 5.6 weeks with an accompanying single minimum rate for holiday pay. The government also proposes to introduce rolled-up holiday pay (while acknowledging that, though it has been ruled unlawful, it is currently still used by many employers).
Finally, the government is proposing to extend the ability of micro businesses (with fewer than 10 employees) to inform and consult directly with employees to small businesses (with fewer than 50 employees). This would mean that all small businesses without existing representatives would be able to consult directly with employees if that were simpler and easier, rather than arranging elections for affected employees to vote for new representatives. Direct consultation would only be allowed if no existing employee representatives were in place.
