Employment law changes 2024: Progress report for HR

Author: Robert Shore

As we plunge into a new year, HR professionals could be forgiven for losing track of all the upcoming employment law changes and what they mean for their organisation. To assist HR with planning for 2024 and beyond, we round up the major legislative changes in the pipeline.

Reforming the right to request flexible working

What is changing?

The Flexible Working (Amendment) Regulations 2023 (SI 2023/1328) remove the current requirement for employees to have at least 26 weeks' continuous service, so that the statutory right to make a flexible working application will become a "day one" right.

In addition, the Employment Relations (Flexible Working) Act 2023 provides for changes to some of the rules on statutory flexible working requests.

What are the main features?

• Allow employees to make two statutory flexible working requests every 12 months (the current limit is one).
• Reduce the time limit for employers to deal with statutory flexible working requests from three to two months (although this can be extended by agreement with the employee).
• Require employers to consult an employee before refusing a request.
• Remove the need for employees to explain the effect of the proposed change or how that could be dealt with when making a request.

On 12 July 2023, Acas launched a consultation in relation to proposed updates to its code of practice on handling flexible working requests. The new draft code of practice "seeks to encourage a more positive approach to flexible working", and is drafted to reflect "significant shifts in ways of working ... as well as anticipated changes to the law". The consultation closed on 6 September 2023.

What will this mean for employers?

It is more important than ever to get the approach to flexible working right, given the sea change in attitudes (with the proliferation of the hybrid working model) and the competitive advantage for employers in the labour market.

In advance of the legislation taking effect, employers should:

• review their flexible working policies to ensure that they reflect the new requirements;
• train managers on how to handle flexible working requests in light of the new requirements; and
• plan communications to staff to reflect the changes.

HR professionals have an important role to play in supporting their organisation's change of culture when it comes to flexible working, for example by:

• putting the business case for flexible working to senior leadership;
• training line managers on handling flexible working requests; and
• if they have introduced a hybrid working model, ensuring its smooth running and the effective promotion of the availability of hybrid working as a candidate attraction and employee retention tool.

Timetable

The Flexible Working (Amendment) Regulations 2023 (SI 2023/1328), which remove the current requirement for employees to have at least 26 weeks' continuous service to make a flexible working application, come into force on 6 April 2024. It is not yet known when the remaining regulations to give effect to the Act will come into force. In a press release in July 2023, the Government stated that it "expects the measures in the Act and secondary legislation to come into force approximately a year after Royal Assent (July 2024), to give employers time to prepare for the changes". However, given that the Flexible Working (Amendment) Regulations 2023 are coming into force on 6 April 2024, the remaining secondary legislation may take effect at the same time.

Carer's leave

What is changing?

The Carer's Leave Act 2023 provides employees who have caring responsibilities for dependants with a long-term care need with a right to one week's unpaid leave per year.

What are the main features?

• Introduce one week's unpaid leave each year for employees who are carers, for the purpose of caring for a dependant, or arranging care for a dependant, with long-term mental or physical health needs.
• It will be possible to take the leave in periods of a day or half a day.

What will this mean for employers?

Employers should be prepared to incorporate carer's leave into their family-friendly policies and procedures. The other key aspects of the new right are that:

• carer's leave will be a "day one" right, meaning that staff will not require a minimum period of service;
• entitlement will depend on the relationship between the carer and the person being cared for, with a focus on dependants with a long-term care need or terminal illness;
• eligible employees will be able to take five days' carer's leave per year, as individual or half days; and
• employers will be able to ask employees to self-certify that they are eligible, with no evidential requirements (for example details of the dependant's condition or caring activities being undertaken).

Timetable

The Carer's Leave Act received Royal Assent on 24 May 2023. The draft Carer's Leave Regulations 2024 to implement these reforms were laid before Parliament on 13 December 2023 and are due to come into force on 6 April 2024.

Pregnancy and maternity leave - extending redundancy protection

What is changing?

Employees on maternity leave already have the right to be offered any suitable alternative vacancy in a redundancy situation. The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 provides for greater protection against redundancy during pregnancy and for six months after return to work from maternity leave as well as certain other family-related leave.

What are the main features?

• Ensure that the redundancy protection period (the right for pregnant women and new mothers on maternity leave to be offered suitable alternative employment in a redundancy situation) applies from the point that an employee informs their employer that they are pregnant (whether this is done orally or in writing).
• Extend the redundancy protection period until 18 months after the birth of the child (or adoption placement) for employees returning from maternity leave, adoption leave or shared parental leave.

What will this mean for employers?

Employers will need to review their redundancy policies and procedures to ensure that they cover the right for those on maternity, adoption or shared parental leave to be offered any suitable alternative vacancy on redundancy.

HR professionals and line managers implementing a redundancy process will also need to ensure that they take account of the extended redundancy protection period where any employees at risk of redundancy are pregnant or have recently returned to work from maternity, adoption or shared parental leave.

The changes in relation to maternity leave will double the current period of redundancy protection from one year to around two years, assuming the pregnant employee advises the employer of their pregnancy at about the 12-week point and takes one year's maternity leave. This could substantially increase the number of employees who must be given priority for any suitable alternative vacancy on redundancy, particularly in workplaces where the majority of employees are women.

Timetable

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 received Royal Assent on 24 May 2023. The draft Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 were laid before Parliament on 11 December 2023 and are due to come into force on 6 April 2024.

Strengthening workplace sexual harassment laws

What is changing?

The Worker Protection (Amendment of Equality Act 2010) Act 2023 provides for a positive duty on employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment.

What are the main features?

• Introduce a mandatory duty on employers to prevent sexual harassment in the workplace.
• Provide tribunals with the power to increase compensation by up to 25% where a claim of sexual harassment is upheld and the employer has breached this duty.

What will this mean for employers?

Employers are already liable for harassment carried out by their employees at work, unless they have taken "all reasonable steps" to prevent the harassment. However, a positive duty on employers to take steps to prevent sexual harassment should prompt employers to review their policies and procedures to ensure that:

• the equality, diversity and inclusion policies that they have in place will meet the new requirements;
• those policies are implemented in practice;
• their workforce is made aware of the policies;
• employees and line managers are provided with equality, diversity and inclusion training;
• there is a system in place for dealing effectively with employee complaints; and
• their policies are reviewed as appropriate.

HR professionals should also look out for a new statutory code of practice on sexual harassment. The Equality and Human Rights Commission is developing the new code and is expected to consult on a draft version before it is introduced.

Following amendments to the original Bill, the Act does not introduce employer liability for third-party harassment of employees.

Timetable

The Act received Royal Assent on 26 October 2023 and is expected to come into force one year after that date.

Neonatal care leave

What is changing?

The Neonatal Care (Leave and Pay) Act 2023 will provide parents whose babies need neonatal care after birth with up to 12 weeks' neonatal care leave. The leave will be paid if the parent meets minimum service and pay requirements.

What are the main features?

• To provide new parents whose baby requires neonatal care for at least seven continuous days and which starts within 28 days of birth with the right to take up to 12 weeks' leave in addition to maternity or paternity leave.
• This will be a "day one" right, although pay will be subject to minimum service and pay requirements.

What will this mean for employers?

Employers should be prepared to incorporate this new type of leave into their family-friendly policies and procedures. The other key aspects of the proposed new right are that:

• it will be a "day one" right;
• it is expected to be used mainly to assist new parents whose baby requires neonatal care in hospital;
• it will be available to parents of babies who are admitted up to the age of 28 days, where the baby has a continuous stay in hospital of at least seven full days; and
• statutory neonatal pay, which would be set at the same rate as other family-friendly statutory payments, would have a qualifying period of 26 weeks' continuous service.

Notice and evidence requirements are expected to be "light touch" to take account of the sensitivity of the situation.

Timetable

The Neonatal Care (Leave and Pay) Act 2023 received Royal Assent on 24 May 2023. The details of the new right to neonatal care leave will be set out in regulations in due course. The explanatory notes suggested that if the Bill successfully completed all parliamentary stages in 2023 (which it did in May 2023), it is likely to come into force 18 months after that date. In subsequent parliamentary Written questions, answers and statements, the Government has indicated that it plans to introduce neonatal leave in April 2025.

Other legislation and changes to watch out for

• Holiday entitlement for irregular hours workers and part-year workers calculated at 12.07% of hours worked
• Rolled-up holiday pay allowed for irregular hours workers and part-year workers
• National living wage extends to 21-year-olds and all rates increase
• Direct TUPE consultation for small businesses and where fewer than 10 employees transfer
• Right to request more predictable terms and conditions of work
• Statutory code of practice on "fire and rehire"
• Duty on employers to give all tips to workers without deductions