As we enter 2024, we’ve been reflecting on some of the significant changes in employment law we have seen over the course of 2023 which employers need to be aware of. These include amendments to the flexible working regime, further deliberations about employment status by the Supreme Court and considerable changes to the calculation of holiday pay. 2024 looks set to be a big year for change in employment law, so here we have done a roundup of key developments in 2023 and have highlighted the ‘ones to watch’ in 2024.
The Employment Relations (Flexible Working) Act 2023 received Royal Assent in July 2023 and it was confirmed in December 2023 that from 06 April 2024, every employee will have the right to request flexible working from day one of their employment.
Under the Act, employees will be able to make two requests for flexible working in each 12-month period (currently they can only make one request), the employer must consult with the employee before rejecting the request and the employer must respond to any request within two months, reducing the amount of time that the employer has to deal with the request, as currently employers have three months to conclude the process. Employees are also no longer required to make reflect on how their request may impact their employer. These amendments all serve to widen the scope of an employee’s right to request flexible working, and arguably make it harder for employers.
Acas will no doubt update their Code of Practice on flexible working, and their consultation document encourages open-minded discussion between employers and employees in the hope of deterring rejections by default.
Employers should ensure that they review and update their flexible working policies to ensure that the changes in legislation and guidance are incorporated.
Last year’s updates on holiday pay saw changes to claims for a series of underpayments and the calculation for part-time workers’ pay.
The Supreme Court in Agnew held that a three-month gap between underpayments of holiday pay does not automatically break a series of deductions (as was previously understood to be the case), with employees being able to claim for deductions prior to the gap if it can be argued that they form part of a series. This means potentially much more exposure for employers to claims for underpayment of wages than had previously been the case. Employers should ensure that holiday pay constitutes ‘normal pay’ and so needs to include any bonuses, commission, or overtime. For employers who make sure that ‘normal pay’ is paid, shouldn’t need to worry about this development, but for employers who still aren’t calculating normal pay correctly, the Agnew case could mean that there is a potentially larger level of exposure for those employers.
To deal with the challenges to the calculation of holiday pay for casual and part year workers brought about by the decision in the Harpur Trust v Brazel case, from 01 April 2024, an amendment to The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 means that employers will be permitted to pay rolled-up holiday pay for irregular and part-year workers based on the old calculation for rolled up holiday pay of 12.07%. The Regulations reverse the decision in Harpur Trust v Brazel, so that employers can calculate holiday in hours, not weeks; confirming that holiday accrues on the last day of the pay period at 12.07% of the actual hours worked during the pay period.
Employers should review their contracts of employment to consider whether any changes to the contracts are needed to ensure that the method for calculating holiday pay is clearly set out.
Employment Status and Trade Union Membership
Employment status has been at the forefront of employment law developments over the past few years. In 2023, the Supreme Court were tasked with deciding whether Deliveroo riders could rely on the rights under Article 11 of the European Convention on Human Rights (ECHR), which protects freedom of peaceful assembly and association and, crucially in this instance, the ability to form and join trade unions. The Court’s decision was that Deliveroo were not legally obliged to engage with a rider’s trade union for the purposes of collective bargaining.
Scrutiny of the riders’ employment contract in practice demonstrated that the rights afforded to them were inconsistent with an employment relationship. Riders were held to have an ‘unfettered right to appoint a substitute to take on their jobs’ and could choose their availability for working as and when convenient. The Supreme Court ultimately established that the riders had no employment relationship with Deliveroo and could not therefore rely on trade union rights under the ECHR.
Despite a Supreme Court ruling, the law surrounding modern workers in the gig economy remains unpredictable, with further developments likely in the future.
Anticipated Developments in 2024
Redundancy Protection – the draft Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 will bring into force the rights set out under the Protection from Redundancy (Pregnancy and Family Leave) Act 2023, by giving additional redundancy protection to employees taking maternity, parental or adoption leave, or those who have suffered a miscarriage. What this essentially means is that employees taking such leave will have their period of protection against redundancy increased to 18 months following their return to work. This is expected to come in to force on 06 April 2024.
“Fire and Rehire” – In light of the mass redundancies announced by P&O Ferries without consultation or notice in 2022, the Government pledged to tackle the use of dismissal and re-engagement by employers and underwent consultation to introduce a new statutory Code of Practice to regulate such matters. A formal version of the Code is expected to be published in Spring 2024 and would give tribunals the ability to increase awards by 25% if a party is seen to be in breach of the provisions.
Sexual Harassment – The Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force in October 2024. This will impose a duty on employers to take reasonable steps to prevent sexual harassment of employees. There is also a further provision to allow tribunals to uplift compensation in successful claims by up to 25% where an employer is held to be in breach of this duty.
Carer’s Leave Regulations – Due to take effect in April 2024, these Regulations will offer a day-one right for employees to be absent from work to provide or arrange care for a dependant with a long-term care need. Employees can apply for up to one week’s unpaid leave in any 12-month period, and leave can be consecutive or non-consecutive, half-days or full days.
Predictable Terms and Conditions - The Workers (Predictable Terms and Conditions) Act 2023 received Royal Assent in September 2023, and is likely to come into force in around September 2024. The Act aims to give workers and agency workers the right to request more predictable terms and conditions of work where there is a lack of predictability to their work pattern. Read more on Predictable Working patterns.
If you are unsure how these changes to employment laws affect your business or if you’d like us to review your employment contracts or draft new ones then you can contact our expert team at firstname.lastname@example.org
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