8th January 2024

What’s new in Employment law in 2024?

Article by Linda Wilson | Employment, News

Following Brexit, 1st January 2024 signalled the end of the supremacy of EU law in the UK. What does this mean for employers and employment law? The government has attempted to retain and codify key rights and principles, but it is worth noting the proposed changes to the legislation which impact discrimination, holiday rules and TUPE.

There are also changes on the horizon to flexible working and protection for those on maternity leave and more. Read on for a brief summary highlighting the main changes.

The Equality Act 2010 (Amendment) Regulations 2023 (in force as of 1 January 2024)

Direct discrimination related to pregnancy, maternity and breastfeeding

  • Section 13(6)(b) is amended so that it provides that women may be afforded special treatment in connection with “pregnancy or childbirth or maternity“. This is a wider than the current wording allows but reflects how tribunals currently interpret the wording.
  • Section 13(7) is repealed which excluded direct sex discrimination claims relating to breastfeeding.
  • Section 18 is amended so that protection in pregnancy and maternity discrimination claims is extended to cover unfavourable treatment after the protected period where the treatment is because of the pregnancy or pregnancy-related illness during the protected period.

Indirect associative discrimination

A new section 19A enables a person without a protected characteristic to bring an indirect discrimination claim if they suffer a disadvantage alongside persons with a protected characteristic.

Discriminatory statements about recruitment

A new section 60A provides that a general discriminatory statement made in connection with a relevant recruitment decision may constitute direct discrimination, even if there is no active recruitment exercise and no identifiable victim.

Definition of disability

A new paragraph (5A) is inserted into Schedule 1 providing that, in relation to the definition of disability, a person’s ability to carry out normal day-to-day activities includes their ability to participate fully and effectively in working life on an equal basis.

The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023

These regulations make various changes to the Working Time Regulations 1998 and TUPE. The Government has recently published guidance on holiday pay and entitlement following these changes.

Working Time Regulations

  • Simplifying the record-keeping requirements under the WTR 1998 to maintain the requirement to keep “adequate” records, but not necessarily a full record of all daily working hours (in force 1 January 2024).
  • Restating in legislation the effect of retained EU case law regarding carry-over of holiday in certain situations, including (among other things) inability to take holiday as a result of sickness and family leave (in force 1 January 2024).
  • Legislating to incorporate the EU-derived concept of “normal remuneration” into holiday pay, to include (among other things) commission and regular overtime (in force 1 January 2024.).
  • Repealing the COVID-19 holiday carry-over rules, with a short transitional period to enable any accrued leave to be used by 31 March 2024 (in force 1 January 2024).
  • Providing a method of holiday accrual for irregular-hours and part-year workers, based on 12.07% of the hours worked in the previous pay period. For workers on sick leave or other family-related leave, accrual will be based on average working hours over a 52-week reference period (for leave years starting on or after 1 April 2024).
  • Permitting rolled-up holiday pay for irregular-hours and part-year workers (for leave years starting on or after 1 April 2024).

TUPE

TUPE will be amended to remove the requirement to elect employee representatives for:

  • Employers with fewer than 50 employees.
  • Employers of any size involved in a transfer of fewer than ten employees (for transfers taking place on or after 1 July 2024.).

In either case, the employer will be able to consult directly with employees, where no existing employee representatives are in place.

Worker Protection (Amendment of Equality Act 2010) Act 2023: Sexual harassment in the workplace

This change to the law preventing sexual harassment in the workplace, which will come into effect in October 2024, was implemented by a Private Members’ Bill sponsored by Wera Hobhouse MP, which had government support. The Act will:

  • Introduce a duty on employers to take reasonable steps to prevent sexual harassment of their employees.
  • Give employment tribunals the power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached the new duty to prevent sexual harassment

Employment Relations (Flexible Working) Act 2023

The Act will make changes to the right to request flexible working so that:

  • Employees will no longer have to explain what effect their requested change may have on the employer and how any such effect might be dealt with.
  • Employees will be entitled to make two requests (instead of one) in any 12-month period.
  • Employers will not be able to refuse a request unless the employee has been consulted.
  • Employers will have to make a decision in two months (reduced from three months), subject to agreeing a longer decision period.

See below for regulations that introduce a “Day One” right to request flexible working (in place of the current requirement for 26 weeks’ continuous employment to qualify for the right)

These changes are expected to come into force in April 2024, like those below.

The Flexible Working (Amendment) Regulations 2023

These have been laid before Parliament.

The Regulations remove the requirement that an employee must have 26 weeks’ service in order to be able to make a request for flexible working. The change makes the right to request flexible working a Day One right.

This new right will come into effect for flexible working requests made on or after 6 April 2024.

Protection from Redundancy: Pregnancy and Family leave

The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 have been laid before Parliament, extending the period of special protection from redundancy for employees who are on maternity leave, adoption leave or those on shared parental leave. It brings the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 into operation.

Currently, regulation 10 of the Maternity and Parental Leave Regulations 1999 provides that parents on maternity leave, adoption leave or shared parental leave should be offered first refusal of any suitable alternative employment which may be available in a redundancy situation.

This protection is, under the Act, extended as follows:

  • For maternity – the protected period will cover pregnancy, alongside 18 months from the first day of the estimated week of childbirth. The protected period can be changed to cover 18 months from the exact date of birth, if the employee gives the employer notice of this date prior to the end of maternity leave.
  • For adoption – the protected period will cover 18 months from placement for adoption.
  • For shared parental leave – the protected period will cover 18 months from birth, provided that the parent has taken a period of at least 6 consecutive weeks of shared parental leave. This protection will not apply if the employee is otherwise protected under the points above

The extension to the protected period to cover pregnancy applies where the employer is informed of the pregnancy on, or after, 6 April 2024.

The extension of the protected period, to cover a period of time after leave has been taken, will apply to any maternity and adoption leave ending on, or after, 6 April 2024. This will also apply to any shared parental leave starting on, or after, 6 April 2024.

Carer’s Leave Regulations 2024

The Carer’s Leave Regulations 2024 have been laid before Parliament. They set out the statutory scheme under which employees can apply for up to one week of unpaid carer’s leave, in any 12 month period.

Key features are:

  • the right is a Day One employment right
  • the right applies to employees who have a dependant with a long-term care need and those who want to be absent from work to provide, or arrange care for that dependant
  • requests can be in consecutive, or non-consecutive, half-days or full days
  • employees must give notice, in writing, of their intention to take carer’s leave – confirming their entitlement to take it and giving at least twice the amount of notice than the period of leave requested. Or, if longer, three days’ notice
  • employers can postpone a request if the operation of the business would be unduly disrupted. In these circumstances, the employer must give notice of the postponement before the leave was due to begin, and must explain why the postponement is necessary. The employer must then allow the leave to be taken within one month of the start-date of the leave originally requested. Rescheduling the leave should be done in consultation with the employee
  • employees are protected from detriment and dismissal because they take, or seek to take, carer’s leave (or the employer believes they are likely to do so)

The Regulations are due to come into force on 6 April 2024.

If you require advice on the above changes or any other employment law query, please do contact Linda Wilson at or call 01730 268211.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.