Upcoming Changes

Below is a list of upcoming employment law changes. In addition to the below, there will be changes as a result of case law. Below you will find highlights of employment law changes from the previous year.

Date

2024 Expected Changes   
Description

Parliament was dissolved on the 30th May 2024, ahead of the UK General Election on the 4th July 2024.  As a result of this, with the exception of the fire and re-hire Code of Practice (see below), all unfinished employment legislation will fall away unless and until reintroduced in the next Parliament. It therefore remains to be seen what will happen with the reforms to the TUPE regulations, the new law on tipping, neonatal leave and the right to request a more predictable working pattern, which were all supposed to be introduced over the next year.

We will keep you updated about potential future employment law changes as the plans of the new government become clear.

18th July 2024

• Fire and re-hire Code of Practice - An order has been made bringing the Code of Practice into effect on 18 July. The new Code will not apply where the prospect of dismissal and re-engagement has been raised by the employer before this date. The Code of Practice sets out the employer’s esponsibilities when seeking to change employee’s terms and conditions by way of dismissal and re-engagement (or “fire and re-hire” as it is often termed). The Code does not make the practice of “fire and re-hire” illegal, but it is intended to supplement ACAS guidance introduced in 2021. It recommends that the practice should be used as a last resort and makes recommendations for sharing information and keeping changes under review. Failure to comply with the Code will not give rise to a standalone claim. However, where an employer fails to take the Code into account, an employment tribunal will have the power to apply an uplift of up to 25 per cent to compensation awarded in a relevant claim such as unfair dismissal.

EXPECTED

Dates (if know) shown against each item

• Tip Allocation - Current legislation allows employers to take a percentage of tips earned by staff. The Employment (Allocation of Tips) Act 2023 will make it unlawful for employers not to provide employees with 100% of the tips left by customers. It is proposed that tips will be distributed in a fair and transparent manner, so that employees are paid what they have earned. A new statutory code of practice will be issued alongside the Act to give employers and staff guidance on how tips should be fairly allocated amongst employees. Enforcement of these obligations has not yet been clarified. It is proposed that employers will have to record tips and show how they have been allocated. Records will need to be kept for a minimum period and workers will have a right to request to see these records.

Expected to be implemented July 2024.

• Draft Code of Practice – Fire and Re-Hire - A draft Code of Practice has been introduced, setting out employer’s responsibilities when seeking to change employee’s terms and conditions by way of dismissal and re-engagement (or “fire and re-hire” as it is often termed). The Code does not make the practice of “fire and re-hire” illegal and is intended to supplement ACAS guidance introduced in 2021. It recommends that the practice should be used as a last resort and makes recommendations for sharing information and keeping changes under review. A failure to adhere to the Code could result in employment tribunals being able to award an uplift of 25% to unfair dismissal claims. The Code needs to be presented before Parliament before it can take effect.

• Industrial Action - The Strikes (Minimum Service Levels) Bill has been introduced before Parliament, in response to significant public sector industrial action at the end of 2022 and continuing into 2023. There is currently no general requirement in the UK to maintain minimum service levels in critical services, unlike in many European countries. This Bill will allow the Secretary of State to make regulations setting out “minimum service” required in certain sectors including fire, ambulance and rail services during strikes.

The Bill which is in the ‘final stages’ has not without controversy. It has attracted criticism from unions, and the Labour Party has also indicated that if it comes into power, it will repeal the legislation if it is enacted.

• The Neonatal Care (Leave and Pay) Act - The overall intention of this Act is for a parent whose child is admitted to neonatal care (within 28 days from the day after birth) to have a new statutory right, from the outset of their employment, to take neonatal care leave. The maximum length of the leave and the eligibility conditions will be set out in the regulations (yet to be published). However, the Government has previously indicated that the maximum period of leave will be set at 12 weeks.

In addition, parents taking neonatal care leave who have at least 26 weeks’ continuous service will be entitled to neonatal care pay, subject to eligibility conditions which are likely to be similar to other types of statutory pay. Although, It is thought neonatal care pay will be calculated at the normal flat rate for statutory pay, rather than the enhanced rate that applies to the first six weeks of statutory maternity pay.

There is a considerable amount of detail still to be resolved, so this is not expected to be implement before April 2025.

• Workers (Predictable Terms and Conditions) Act 2023 - The Workers (Predictable Terms and Conditions) Act 2023 has received Royal Assent and is expected to come into force in September 2024. The Act will amend the Employment Rights Act 1996 to give workers (including those on zero-hours contracts) and agency workers the right to request a predictable work pattern if they satisfy certain eligibility criteria.

If a worker’s existing working pattern is uncertain in terms of the hours and times they work, or if it is a fixed term contract for less than 12 months, they will be able to apply to change their working pattern to make it more predictable.

The procedure for dealing with a request for a predictable working pattern is on a par with flexible-working requests. But there is one big difference as such requests for a predictable working pattern must be dealt with by the employer within one month.

The qualifying period is likely to be 26 weeks’ service although those weeks will not need to be continuous and a maximum of 2 applications can be made in any 12-month period.

If a request is granted, then employers must offer the new terms within two weeks of granting the request. Employers cannot make detrimental changes to other contractual terms at the same time as making the changes required as a result of the approved request for predictability.

ACAS will be producing a draft Code of Practice for consultation in the Autumn which will provide guidance on how to handle requests.

 

Date

Implemented 2024

Description
 

• Paternity Leave and Pay legislation changes: The Government has announced it will make changes to paternity leave in response to a public consultation. The proposed changes aim to give employed fathers and partners more choice and flexibility around how and when they take paternity leave. The changes will enable fathers or partners to split their leave into two blocks of one week. This will provide more flexibility than only one block of one week or two weeks under the current legislation. Fathers or partners will also no longer be restricted from having to take their paternity leave within the first eight weeks of the birth or adoption of their child. They will have the choice to take their leave and pay at any point in the first year after the birth or adoption of their child.

• The Retained EU Law (Revocation and Reform) Bill - By the end of 2023, the Retained EU Law (Revocation and Reform) Bill aims to abolish all EU law that is not specifically reinstated or replaced . This may affect a number of EU-derived secondary legislation, including the Working Time Regulations (WTD), Agency Worker Regulations and TUPE. There are concerns around whether the end of 2023 will provide enough time to reform these laws, although there is a potential extension to June 2026 but no later.

• Holidays - as part of the above, there are proposals to make changes to holidays as follows:

  • to merger of the basic four weeks’ paid holiday entitlement (which was granted under the WTD ) with the additional 1.6 weeks’ holiday entitlement (which is a UK-only right), to create a single pot of 5.6 weeks’ annual holiday entitlement
  • simplifying how holiday pay is calculated; and
  • permitting the payment of rolled up holiday pay, i.e. paying a worker’s holiday pay in their basic pay, rather than paying them when their holiday is actually taken. The payment of rolled-up holiday pay is technically unlawful under EU law

• Flexible Working - The Employment Relations (Flexible Working) Bill 2022-23 received Royal Assent on 20 July. It aims to give employees greater access to flexibility over where, when, and how they work.

The current position with flexible working is that an employee must have worked for 26 weeks before they can make a statutory flexible working request, a request can only be made once per year and the employer must notify the outcome within a three-month decision period.

The Employment Relations (Flexible Working) Act paves the way for the following changes (all of which will require a commencement order before being brought into effect):The changes will include:

  • Employees will now be able to make two flexible working requests in any 12-month period.
  • Requests have to be dealt-with by employers within 2 months of receipt of a request, if no extension is agreed.
  • Employers are not able to refuse a request until they have ‘consulted’ with the employee.
  • Employees will no longer, in their application, have to explain what effect the employee thinks agreeing to the request would have and how any such effect might be dealt with.

However, changes it does not make include:

  • It doesn’t make flexible working a ‘Day 1 right’. Employees still need to have 26 weeks' service before they are able to make a request.  However, in the press release announcing that the Act had received Royal Assent, the Government repeated its commitment to remove the qualifying period, so we expect the necessary regulations to be made before the other changes are brought into effect.
  • It doesn’t require employers to offer a right of appeal if a flexible working request is rejected. The offer of a right of appeal is recommended in the ACAS Code of Practice on Flexible Working only, but not in the new legislation.
  • There is no requirement that consultation with the employee is substantive or covers the options available. Indeed, there is no minimum standard of consultation set out at all.

The flexible working guidance and templates will be amended on YourHR.guide once the new legislation becomes law, which we still anticipate being 2024 at this current time. 

• The Carer’s Leave Act - This Act will provide employees with long-term caring responsibilities of a dependant, to take up to five working days of unpaid statutory carers leave per year. Dependants include partners, children, parents, people living in the same house as the employee and people who reasonably rely on the employee. The employee will be required to give notice twice the length of the leave and can take the time as partial or full days and can be taken flexibly at different times to suit their caring responsibilities. Proof is not needed to show how the leave has been used. This will be a day one right and employees will be protected from dismissal or detriment due to taking this leave. It is expected that this will be implement from April 2024.

• The Protection from Redundancy (Pregnancy and Family Leave) Act - As the law currently stands, in a redundancy process an employer has an obligation to offer those on maternity leave, adoption leave or shared parental leave suitable alternative employment (if it exists) as a priority over other employees provisionally selected for redundancy. The Protection from Redundancy (Pregnancy and Family Leave) Act will increase this protection from when the employee first tells their employer they are pregnant/ will be taking adoption or shared parental leave until 18 months after the child’s birth/ adoption. It is expected that this will be implemented in April 2024.

• Harassment - The proposed Worker Protection (Amendment of Equality Act 2010) Bill is currently working its way through the House of Lords. The bill would make provision in relation to the duties of employers and the protection of workers from harassment (including sexual harassment) under the Equality Act 2010. The Bill would create new legal liabilities for employers, including protecting employees against third-party harassment during the course of employment (for example by clients or customers). If they fail to take all reasonable steps to prevent the third-party harassment, employers may be liable. The Bill will also include a new duty on employers to take all reasonable steps to prevent sexual harassment suffered by employees during their employment. If the duty is found to have been breached, an uplift of up to 25% of the compensation award may be added by a Tribunal. The Act will come into force a year after it is passed, so its introduction is not imminent.