Employment law library

The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 came into force on 1 January 2024.

These Regulations will introduce changes to the Working Time Regulations 1998 (WTR) and to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). We detail those changes below, not all of which are in force yet.

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Some of the changes to the WTR did come into effect at the beginning of this year, marking the first of many changes expected in 2024. From 1 January 2024, there is no longer a requirement for employers to keep a record of the daily working hours of workers, provided they can show compliance with the WTR in another way. This change allows employers to create, maintain and keep records in a way which they reasonably see fit.

The intention behind this change is to reduce the reporting burden for employers, which is considered to be unnecessarily onerous and time-consuming by government. The impact of this change remains to be seen given compliance with the WTR (in relation to maximum working hours and rest periods) still needs to be demonstrated.

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The rules on holiday entitlement and pay, as well as employers’ exposure to backdated holiday pay claims have been codified under the WTR with effect from 1 January 2024.

Additionally, for leave years commencing on or after 1 April 2024 new rules apply in relation to part year and irregular hours workers.

We reported on these changes in full in our November Employment Matters update, available here.

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Changes to TUPE are coming into effect from 1 July 2024 which aim to streamline the TUPE process. The changes will allow businesses with fewer than 50 employees in total, or transfers involving fewer than 10 employees (regardless of the size of the employer), to consult with employees directly (where there are no existing representatives in place).

Currently employers are required to elect (where there is no trade union) and then inform and (depending on the circumstances) consult with representatives as part of the transfer process, unless they employ fewer than 10 employees.

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From 1 July 2024, employers will have a new obligation to ensure that 100% of tips are paid to workers in full and without deductions (except in limited scenarios such as deduction of income tax). It applies to all workers including agency staff, casual workers and those on zero-hours contracts.

A draft statutory Code of Practice was published on 15 December 2023 to help employers and workers understand the changes. A consultation is open until 22 February 2024 which seeks feedback on the Code and welcomes views from all interested parties.

The draft Code sets out that tips should be allocated and distributed fairly but notes this does not mean that employers are required to allocate the same proportion of tips to all workers, provided there are legitimate reasons to allocate different proportions of tips.

The changes aim to bring transparency and fairness to the hospitality industry in particular and introduce a requirement on employers to keep a written tipping policy. Adequate records should also be maintained of all tips paid and their allocation and distribution for a period of three years.

Following the consultation, a final version of the Code is expected to be published in late spring 2024.

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As always, April will see the usual increases taking effect to statutory pay entitlements and to maximum compensation levels for unfair dismissal.

National Minimum Wage increases

Of note this year the Government has announced that it has accepted the Low Pay Commission’s recommendation on the rates for the National Living Wage (NLW) and the National Minimum Wage (NMW).

The changes will mark the largest ever cash increase in the NMW which has increased by more than £1.00 on last year’s rate.

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Furthermore, the NLW initially applied only to individuals aged 25 and over. This was reduced to 23 in April 2019 following the Low Pay Commission’s recommendations and will reduce further to 21, from April 2024.

Statutory payments increase

The rate of statutory sick pay will increase from £109.40 per week to £116.75 from 6 April 2024.

The rates for statutory maternity, paternity, adoption, parental bereavement and shared parental pay are also set to increase from £172.48 to £184.03 a week (or 90 per cent of average weekly earnings per week if this figure is less than the statutory rate). The new rates will apply to those taking statutory leave on or after 7 April 2024.

The minimum average weekly earnings required to qualify for these statutory payments will remain at £123 per week.

Increases to the cap on a ‘week’s pay’ and employment tribunal compensation limits

The new rate for the statutory cap on a week’s pay for the purposes of calculating the basic award and statutory redundancy pay, plus any new rates for the Vento bands (used for quantifying injury to feelings awards in discrimination claims) will come into effect on 6 April 2024.

These rates are the only elements of the April 2024 rate changes that have yet to be published.

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The single biggest area of change in 2024 is in relation to family-related leave with a host of new family-friendly legislation set to come into force this year and next.

Carer’s leave

Under the Carer’s Leave Regulations 2024 (currently still in draft form) from 6 April 2024 employees with long-term caring responsibilities will have a ‘day one’ right to take one week’s unpaid carer’s leave per year to arrange or provide care for a dependant who has long-term care needs.

The term “dependant” includes not only an employee’s spouse/partner, child or parent but anyone else who reasonably relies on the employee for care.

Under the new Regulations, the employee must give notice of their intention to take leave (though there is no requirement for this to be in writing) and the leave can be taken as a full week or in smaller chunks, provided each period of leave is for at least half of a working day. An employer can defer a request if they reasonably believe it will unduly disrupt their business operations, but then must allow the leave to be taken within one month.

Protection from redundancy

The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 are due to come into force on 6 April 2024 and will extend the existing redundancy protection afforded to employees on maternity leave, shared parental leave or adoption leave.

Currently, only employees who are on a period of maternity leave, adoption leave or shared parental leave (Family-Friendly Leave) at the relevant time have priority status to be offered any suitable alternative employment in a redundancy situation.

The Regulations will extend this protection to pregnant employees and those who have recently returned from a period of Family-Friendly Leave, meaning that the priority status will be afforded during pregnancy (from the date on which an employer is notified) and for a period of 18 months after the birth or placement for adoption of the child. In the case of shared parental leave, the protected period will only extend to 18 months from birth if a minimum of six weeks’ continuous shared parental leave has been taken (if no maternity or adoption leave has been taken).

Paternity leave

Statutory paternity leave must currently be taken in the first eight weeks following the birth of the child (or the placement for adoption) and as a single block of either one or two weeks.

The Paternity Leave (Amendment) Regulations 2024 will relax the rules around when and how statutory paternity leave can be taken and allow leave to be taken at any time in the 52 weeks after birth or adoption (rather than having to take leave in the eight weeks following birth).

Further, the Regulations will permit leave to be taken as two non-consecutive one-week blocks whereas currently if only one week of paternity leave is taken, a second week cannot be taken at a later time. In the case of birth, a person will only need to give 28 days’ notice of their intention to take paternity leave, reduced from the current position that requires notice to be given 15 weeks before the expected week of childbirth – though notice of entitlement must still be given 15 weeks before.

Whilst the new Regulations will relax the rules around when and how paternity leave can be taken, they do also strengthen the requirements to declare entitlement to take paternity leave. Under the current rules, employers can ask the employee to sign a declaration that they are an eligible parent and that they want the leave for legitimate purposes (i.e. to care for the child or support their partner). The new rules say that employees must declare their eligibility and the legitimate purpose of their leave.

The new rules apply to babies expected to be born on or after 6 April 2024 and to children expected to be placed for adoption on or after 6 April 2024.

Neonatal leave and pay

The Neonatal Care (Leave and Pay) Act 2023 received Royal Assent in May last year, but its provisions are not yet in force. It will entitle eligible employed parents to up to 12 weeks’ paid leave if their baby is admitted to neonatal care.

Currently, employees have no statutory entitlement to neonatal care leave and instead normally have to use their maternity/paternity allowance and ultimately supplement this with holiday and compassionate or unpaid leave. The new Act intends to provide an entitlement to dedicated paid leave where neonatal care is needed.

Whilst we await further details of the specific provisions, the right to unpaid time off will be available to all employees as a ‘day one’ right with no qualifying service needed, provided that they have a parental or ‘other personal relationship’ to the child. The right to pay under the new act mirrors that of maternity pay (i.e. employees will require 26 weeks’ continuous service and to meet other eligibility requirements to be eligible for paid leave).

‘Neonatal care’ is medical or palliative care for a continuous period of at least seven days which commences within 28 days following the day after the birth.

The expected date for implementation is April 2025 and we will provide further updates as these become available.

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The Workers (Predictable Terms and Conditions) Act 2023 is expected to come into force in September 2024 and creates a new statutory right for certain workers, agency workers and employees to request a predictable working pattern where:

i) there is a lack of predictability in their current working pattern; and

ii) their purpose in applying is to give them a more predictable working pattern.

A maximum of two applications can be made in any 12-month period, provided that the worker meets a minimum service requirement. Upon receipt of an application employers have the responsibility to deal with requests in a reasonable manner and within one month. If the employer makes the decision to accept the predictable working pattern request, the employee or worker should then be issued with a new contract which reflects the changes to their working pattern.

It should be remembered however that, as with the right to make a flexible working request, the right is only to make a request, not for the request to be granted.

Therefore, employers may refuse the request for one (or more) specific business-related grounds.

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In October 2024, the Equality Act 2010 will be amended to introduce a duty on employers to take “reasonable steps” to prevent sexual harassment of their employees in the course of their employment.

This means that employers will have a new, proactive duty to prevent sexual harassment in the workplace placing greater responsibility on them to make workplaces safer for all staff.

Where an employment tribunal considers that an employer has failed to take “reasonable steps” and so breached this new duty it will have the power to uplift compensation by up to 25%.

Kate Sutherland, a Senior Associate in Harper Macleod’s Employment team, recently produced an article on sexual and third-party harassment in the workplace, which can be read here.

An amended version of this article first appeared in TES on 29 January 2024, highlighting the impact of the legislation on the education sector. Read this version here.

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There are also a number of immigration law changes on the horizon for 2024. Our specialist immigration solicitor Ashley Fleming has produced a note of the key changes to be aware of, available here.

With changes to the flexible working regime on the horizon for 2024, Deborah Rookes discusses how the newly reported case of Wilson v the Financial Conduct Authority is a timely reminder of the complexities of dealing with flexible working requests.

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Hosts: Ewan Stafford and Scott Milligan

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• First 110 days of a labour Government: Watch video

April 2023

Hosts: Scott Milligan, Laura Brennan, Ewan Stafford and Bruce Caldow

• Full webinar: Watch video
• Termination offers: Watch video
• Information update: Watch video
• Equalities update: Watch video

Host: Ewan Stafford

• Common Questions: Watch video
• Do I need a lawyer to review a settlement agreement?: Watch video
• How much will a settlement agreement cost?: Watch video
• Why you should choose Harper Macleod for your settlement agreement: Watch video

Hosts: Rory Byrom

• How do they work?: Watch video
• Employment Tribunals: Explained: Watch video

Host: Ewan Stafford

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Hosts: Bruce Caldow, Scott Milligan, Kate Sutherland and Ashley Fleming

• Forthcoming developments: Watch video
• Business immigration update: Watch video
• Sexual harassment and third party harassment: Watch video 

Host: Rory Byrom

• Licensed sponsor and key points to sponsoring: Watch video
• Ending the employment relationship: Watch video

Host: Andrew Maxwell

• Disciplinary: Watch video
• Grievances: Watch video

Hosts: Scott Milligan, Kate Sutherland, Deborah Rookes and Bruce Caldow

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Host: Ewan Stafford

Topics covered:

• H&S issues
• Working time
• Hybrid working?

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Host: Scott Milligan

Topics covered:

• recruitment (monitoring new starts)
• promotion (avoiding unfairness and discrimination)
• dealing with disciplinary
• refusing to return to the workplace?

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Host: Kate Sutherland

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In this edition, we focus on another important topic – suspension. When should this typically be used? What are the risks associated with getting it wrong? How do you manage the process correctly? In this update we set out some of the key questions to contemplate when considering suspension. We also introduce our new Employment Law Library – an exclusive hub with expert commentary, key legislative updates and useful resources.

Read the September edition