Top 5 recent workplace developments – November 2023
UK & Europe
Top workplace issues
A general election in 2024 could mean some significant, but as yet, uncertain changes for workplace law. In the meantime, the current government has belatedly been working hard to bring into effect a number of reforms, many of which began life well before the pandemic.
In this article we identify 8 key announcements that HR and in house counsel should look out for in 2024, and we make 4 key people predictions which organisations might focus on in 2024 to manage legal risk. In the remainder, we set out some key dates for your diary and, if you need further detail, we list per topic what reforms you can expect to see in 2024 and beyond, finishing off with a summary of the Labour party’s proposals as announced at their last conference in October 2023.
Being forewarned is forearmed!
Staff retention and recruitment are going to be the key concerns for employers in 2024, according to a recent survey, and the most important areas which will require HR support will be mental health and wellbeing, followed by flexible and hybrid working, and diversity, equity and inclusion (DEI).
Here are our four areas organisations should be focussing on in 2024 to manage legal risk:
|Change / Event
|TUC to publish draft AI and Employment Bill setting out proposals for legal protection for employers and employees in relation to AI
|Second consultation on regulations to bring The Seafarers Wages Act into effect
|1 January 2024
|Discrimination protections previously covered by case law are codified in regulations
|Changes to record-keeping obligations, holiday pay, holiday carry-over and holiday accrual
|17 January 2024
|Closing date for ACAS consultation on draft Code of Practice on handling requests for a predictable working pattern
|Statutory Code to support the Employment (Allocation of Tips) Act to be published
|Statutory Code on "fire and rehire” practices and the government’s response to its earlier consultation re this code to be published
|Unpaid carers to gain right to a week of flexible unpaid leave each year to care for dependants with long-term care needs
|Minor changes to paternity leave expected
|1 April 2024
|New National Minimum Wage (NMW) rates will apply and live-in domestic workers will no longer be exempt from the NMW
|New holiday entitlement and pay rules for irregular hours and part year workers, including rolled up holiday pay, for holiday years from 1 April 2024
|6 April 2024
|The right to make a flexible working request becomes a day one right
|Greater redundancy protection in force for a wider category of workers (pregnant women and new parents)
|1 July 2024
|New TUPE consultation rules for smaller organisations (50 or fewer employees) and smaller transfers, for transfers taking place on or after 1 July 2024
|New rules will make it easier for employees to make a flexible working request
|New statutory right for workers and agency workers to request a predictable working pattern
|New duty for employers to take reasonable steps to prevent sexual harassment of their employees
|New rules to boost D&I and clarify non-financial misconduct in the financial sector
|Parents of babies who require specialist neonatal care will be entitled to 12 weeks’ paid statutory neonatal care leave
The remainder of this article sets out what developments you can expect in the following areas:
Flexible working reforms: The Employment Relations (Flexible Working) Act, expected to come into force around July 2024, introduces several important changes to the current flexible working regime which are set to make it easier for employees to make a request. See our update "Navigating the forthcoming flexible working reforms" on the key upcoming changes and ACAS’ recent consultation on an updated Code of Practice.
Separately, as from 6 April 2024, employees will be able to make a flexible working request from day one of their employment as from that date the qualifying period of 26 weeks’ continuous employment to make the request will be abolished. The Flexible Working (Amendment) Regulations 2023 have now been laid before Parliament.
As a result of these reforms, employers are likely to see a rise in the number of flexible working requests, with each request potentially taking more employer time to process.
Right to request a more predictable working pattern: The Workers (Predictable Terms and Conditions) Act 2023, expected to come into force in September 2024, provides a statutory right for workers and agency workers to request a predictable working pattern. ACAS is consulting on its draft Code of Practice on handling requests for a predictable working pattern, which will sit alongside the new right. The consultation closes on 17 January 2024.
Carer’s leave: Unpaid carers will have the right to a week of flexible unpaid leave each year to care for a dependant with a long-term care need. The Carer’s Leave Act 2023 came into force on 4 December 2023, and the Carer’s Leave Regulations 2024, which are expected to bring the new right into force on 6 April 2024 have now been laid before Parliament.
Neonatal care leave and pay: Parents of babies who require specialist neonatal care following birth will be entitled to statutory neonatal care leave of up to 12 weeks’ paid leave under the Neonatal Care (Leave and Pay) Act 2023. This will be in addition to any entitlement to other types of family-related leave they may have, such as maternity or paternity leave. Regulations expected to bring the new rules into effect in April 2025, are still awaited.
Protection from redundancy for women and new parents: From 6 April 2024 it is expected that employers will be required to offer suitable alternative vacancies to a wider category of workers who are at risk of redundancy. Currently only those on maternity, adoption or shared parental leave have this right, but under the new law, redundancy protection will be extended as follows:
The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 have now been laid before Parliament.
Paternity leave and pay: The government announced earlier this year that employed fathers and partners will be entitled to take the current entitlement of 2 weeks’ paternity leave in 2 separate blocks of one week’s leave at any time in the first year after the birth of their child/adoption. There will be new notice requirements so that 28 days’ notice must be given before each period of leave although the notice of entitlement must be given 15 weeks before birth. Despite media reports that this change will take place in April 2024, draft regulations implementing the change are still awaited.
Sexual harassment: The Worker Protection (Amendment of Equality Act 2010) Act 2023 establishes a new duty for all employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment. If an employer breaches the duty, it could potentially face enforcement action by the Equality and Human Rights Commission (EHRC), and/or an uplift of up to 25% in any compensation awarded if a tribunal finds that an employee has been subjected to sexual harassment and the employer failed to take reasonable steps to prevent that harassment.
The EHRC’s technical guidance on sexual harassment and harassment at work will be updated to reflect the new duty and to set out the steps that employers should take to comply. The new duty will come into force in October 2024 (one year after the day the new law was passed).
Financial services: In September 2023 the FCA and PRA published consultations announcing their proposals to boost diversity and inclusion (D&I) and clarify expectations on non-financial misconduct in the financial sector. These consultations have now closed and we await the regulators’ policy statements (expected in 2024) which will bring the proposals into effect one year from publication of the policy statements.
Discrimination protections post-Brexit: Regulations which came into effect on 1 January 2024 have codified a number of discrimination protections developed by case law which would otherwise have disappeared at the end of 2023 due to Brexit. The intention is that the law should continue to have the same effect after the end of 2023 as it did previously, but ultimately future courts will undoubtedly be required to preside over arguments as to whether the wording provides exactly the same protection as previous case law, and whether it resolves existing uncertainties which have arisen as a result of case law. For further details see "Top 5 recent workplace developments – November 2023".
New government regulation: There are currently no UK laws explicitly designed to regulate AI. Unlike the top down approach being taken by the EU which has recently reached political agreement on the proposed AI Act, the UK government’s White Paper "A pro-innovation approach to AI regulation" and consultation "AI regulation: a pro-innovation approach" (closed 21 June 2023) contain policy proposals to devolve regulation to sector specific regulators, laying the foundations for more guidance and potential regulation. 2023 has already seen a material shift towards greater AI governance with the ICO and EHRC for example having already published guidance on the topic. More guidance is expected in 2024 from the regulators including the CMA, HSE and FCA. We now await the government’s response to the consultation.
TUC proposals: In September, the TUC launched an AI taskforce to establish new legal protection for employers and employees. To this end, we expect the TUC to publish a draft “AI and Employment Bill” in early 2024 setting out their proposals for protections such as a legal duty on employers to consult trade unions on the use of high-risk AI, a legal right for all workers to have a human review AI made decisions and additional protections against discriminatory algorithms.
Occupational Health: Employers will not be required to introduce automatic enrolment for Occupational Health (OH) provision or make its provision mandatory. Instead, the DWP will develop a voluntary framework setting out the minimum level of OH intervention that employers (depending on their size and resources) might want to adopt to help improve employee health at work. See “Occupational Health: Working Better”.
Fit notes: As part of the government’s new Back to Work Plan, the government plans to consult on reforming the fit note system, with the intention that individuals whose health affects their ability to work have easy and rapid access to specialised work and health support. The consultation will be launched after trials which are taking place in a small number of Integrated Care Boards which will offer better support to those who have received a fit note for a prolonged period of time.
Statutory sick pay: Expect a new inquiry into the effectiveness of statutory sick pay (SSP) and how it might be reformed to better support the recovery and return to work of those who claim it. A call for evidence issued by the Work and Pensions Committee will look at the level of SSP, the three-day waiting period and eligibility criteria.
Fair allocation of tips: The Employment (Allocation of Tips) Act 2023, expected to come into force on 1 July 2024, ensures that all “tips, gratuities and service charges” are passed on to workers without deductions, and are allocated in a fair and transparent way. The government has published a draft statutory Code of Practice for consultation and it is expected that the final version of the Code which will support the new rules will be published in Spring 2024. Non-statutory guidance is also expected at some point. Affected employers should prepare for the changes by reviewing how tips are allocated and distributed, preparing a written policy and make arrangements for keeping records and responding to queries/complaints from employees.
NMW: From 1 April 2024 the following new rates will apply:
Also from 1 April 2024, live-in domestic workers will no longer be exempted from the NMW.
Seafarers: The Seafarers Wages Act 2023, which received Royal Assent on 23 March 2023, ensures that seafarers on international services that make at least 120 calls at a UK port and who do not qualify for the UK’s NMW will be paid the NMW equivalent while in UK territorial waters. The government must now make regulations to bring the Act into effect. A consultation on one set of regulations was launched in December 2023 and we are expecting a second consultation in early 2024. The latter is expected to cover the rate of a surcharge that harbour authorities will be required to impose on the operator of a service (surcharge tariff) if the operator does not provide a declaration, and detail on the equivalent rate to the NMW.
Proposals for reforming the UK data protection regime are set out in the Data Protection and Digital Information Bill which is currently making its way through Parliament. The reforms are intended to make compliance with the data protection rules less burdensome but will not be a radical departure from the current EU data protection regime. Proposed changes include: amending the grounds for lawful processing, introducing a new concept of “recognised legitimate interests”, making some minor changes to the rules relating to data subject requests, introducing restrictions on automated decision making, and some changes to current terminology (for example, “data protection impact assessments” will become “assessments of high-risk processing”). Click here to track the progress of the Bill through Parliament.
Limiting non-competes to three months: Non-compete restrictions in employment and worker contracts will be limited to a maximum of three months by legislation. No timeframe has been announced regarding when this requirement will come into force. Read more about this development in our update.
Changing terms and conditions (fire and rehire): The final version of the Statutory Code on the use of dismissal and re-engagement to bring about unilateral changes to employees' terms and conditions (otherwise known as "Fire and rehire” practices), and the government’s response to its earlier consultation are expected in Spring 2024. The new Statutory Code of Practice will set out how businesses can hold “fair, transparent, and meaningful” consultation when changing employment terms. It will also include practical steps that employers should follow. In any related tribunal claims, the tribunal will have power to apply an uplift of up to 25% of any employee’s compensation where the Code applies and the employer unreasonably fails to follow it. Standard practice is often to use threat of dismissal to pressurise employees into accepting new terms. The draft Code makes it clear that threats of dismissal should not be used as a negotiating tactic, so the question that employers will be keen to understand is whether this is reflected in the final code. For background see our earlier update.
TUPE: The requirement to elect employee representatives for the purpose of TUPE consultation for businesses with fewer than 50 employees, and businesses of any size involved in a transfer of fewer than 10 employees will be removed for transfers taking place on or after 1 July 2024. Read more about this development in our update.
Holiday entitlement and pay changes, and working hours record keeping changes: Regulations make significant changes to the rules on holiday entitlement and pay in the Working Time Regulations 2018. The changes in force on 1 January 2024 include loosening the requirement to record working hours, clarification of what should be included in “normal remuneration” for the purposes of calculating holiday pay (such as including certain commission and overtime payments), and clarification of the carry over rules (effectively codifying previous case law). In addition, new rules for calculating holiday pay will apply for “part-year” and “irregular year workers” for holiday years from 1 April 2024; this will include permitting rolled up holiday pay for those workers. Read more about this development in our update.
Industrial action: The Strikes (Minimum Service Levels) Act received Royal Assent in July 2023 and the Code of Practice on the “reasonable steps” which trade unions must take to comply with a work notice issued by employers under the Act took effect on 8 December 2023. Regulations will, however, be needed to set specific minimum service levels in the affected industries; some have already been passed for some essential services, whilst others are still under consultation.
The Labour party announced its intentions on workers’ rights at various conferences in September and October 2023. Whilst this does not, of course, represent their manifesto pledges, it gives employers some idea about what changes a Labour government may consider.
Possible reforms include the following: