What’s in and what’s out – update on more regulatory developments and guidance from January 2024

It’s been a busy December and January in terms legal developments for employers, with more still to come. So we’re providing a quick roundup and update on our September post.

A summary of where we are now – February 2024 – broken into three sections:

  • Regulatory developments – changes that have actually happened
  • The pipeline of regulations and changes that are nearly with us
  • New guidance and other useful documents

Regulatory developments …

  • Holiday and working time the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 came into force on 1 January 2024 bringing significant amendments to the Working Time regulations, in terms of:
    • record-keeping obligations
    • holiday and carry forward entitlement
    • rolled up holiday accrual and pay for irregular hours and part year workers
    • specifying what amounts to ‘normal remuneration’

(We’ve prepared a separate briefing note. If you’d like to know more do please request a copy from our contact page).

The government has also published guidance on the new holiday arrangements to help employers adapt.

  • TUPE there are changes to consultation when transferring a business. Where an employer has fewer than 50 employees, or fewer than 10 employees are being transferred, employers will not have to consult with elected representatives when making a transfer under TUPE. They can instead consult directly with affected employees.
  • Equality and discrimination The Equality Act 2010 (Amendment) Revelations 2023 came into force on 1 January 2024. These regulations reproduce in UK law various key principles of equality and discrimination law, that we would have otherwise lost when EU law ceased to have effect at the end of last year.
    They include:

    • Protections against direct discrimination in the work environment, extended to include “maternity” and women who are breastfeeding.
    • Indirect discrimination is extended to protect people who don’t have a relevant protected characteristic themselves but who suffer the same disadvantage as those with the protected characteristic. This is a new provision and it’s not entirely clear how it might work – we may need to wait for some cases for the new principles to become clearer.
    • Public statements made about decisions to offer work, could be unlawful discrimination even if no one’s been directly affected by the statement.
    • The right to equal pay where terms and conditions can be attributed to a single source or collective agreement, and not just the same or an associated employer.
    • Disability – we have a new definition. Previously UK legislation defined disability as having a physical or mental impairment which has a substantial and long-term adverse effect on ability to carry out normal day-to-day activities. The new regulations follow the European case law developments making it clear that the ability to do day-to-day activities includes a person’s ability to participate fully and effectively in working life on an equal basis with other workers.

While it seems simple to legislate in the UK to continue EU case law principles, the new words are not exactly the same as the well established EU laws, and may be interpreted differently over time. We’ll have to see how these new principles are developed by case law in the UK.

  • Preventing sexual harassment – a new duty. The Worker Protection (Amendment to Equality Act 2010) Act 2023 introduces a new positive duty on employers to take ‘reasonable steps’ to prevent sexual harassment of employees. The current position is that an employer can defend a sexual harassment claim if they show that they took ‘all reasonable steps’ to prevent it happening. The new position will be that if they cannot do that to defend a claim, and separately cannot even show they took ‘reasonable steps’ to prevent it happening, there will be a possible 25% uplift in any compensation.
    It takes effect on 25 October 2024. The EHRC proposes to update its guidance to reflect this change.
  • Day one right to request flexible working – The Flexible Working (Amendment) Regulations 2023 bring a day one right to request flexible working from 6 April 2024, and some procedural changes for how applications should be dealt with. ACAS has published an updated draft statutory Code of Practice that is awaiting Parliamentary approval.
  • Live in and domestic workers – the National Minimum Wage (Amendment) (No.2) Regulations 2024 will come into force on 1 April 2024. They remove the exemption from the national minimum wage for live-in domestic workers. This is on the back of an employment tribunal decision that held the exemption was indirectly discriminatory against women.

The pipeline of regulations that are nearly with us …

  • Redundancy protection extended The draft Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 were laid before Parliament on 11 December 2023 and if passed will come into effect from 6 April 2024. They extend redundancy protection to the period of pregnancy and for up to 18 months after the birth or placement of a child for those taking maternity, adoption or shared parental leave. Until now, protection only applied during maternity leave.
  • Paternity leave – The draft Paternity Leave (Amendment) Regulations 2024 are before parliament and due to take effect for childbirth or placement after 6 April 2024. They will change the way in which statutory entitlement to paternity leave is taken.
  • Carers – Draft Carers Leave Regulations 2024 have been laid before Parliament and from 6 April 2024 an employee who has a dependent with a long-term-care need may take one week’s unpaid leave in each rolling 12 month period to provide or arrange care.

Guidance and other useful documents:

  • A draft code of practice on dismissal and re-engagement (‘fire and rehire’) has been published by BEIS for consultation that will close in April. There’s no indication of what happens next. The draft code of practice is a useful summary of the practical steps and issues that it would be good for employers to keep in mind.
  • Public sector equality duty – On 18 December 2023, the government published new non-statutory guidance on the public sector equality duty in section 149 of the Equality Act 2010 to help public sector decision makers comply with their duty.
  • Kinship carers – On 15 December 2023, as part of the government’s wider proposals for children’s social care reform, the Department for Education published Kinship carers in the workplace: guidance for employers. Kinship care (sometimes known as “family and friends care”) involves a child being raised in the care of a family member, or family friend, who is not their parent. Employers are encouraged to signpost existing entitlements (to request flexible working, time off for dependents and to unpaid parental leave) to kinship carers and fully consider any eligible request.  The guidance gives recommendations as to how employers could create kinship friendly employment environments
  • Terminal illness – The CIPD has published guidance for people professionals for supporting and managing employees with a terminal diagnosis. It has some useful guidance and is a helpful checklist of things to think about.

Our comment

There’s a long list of changes in employment legislation at the moment. It’s a lot to stay on top of, but some of it involves significant impact and requires positive action now. There are also opportunities for regularising worker employment relationships (the new rules on part time and part year workers and holiday pay) which could provide a real boost for equity and fairness in the work place, and reduce risks.