Happy new year and welcome to our first newsletter of 2024. Last year was a busy one for legislators as several pieces of employment legislation received Royal Assent. A raft of secondary legislation was also laid before Parliament before the end of 2023, and we outline those areas either in force as of 1 January 2024 or that will be coming into force in the next few months.
Employment legislation rarely stands still, and workers’ rights and employers’ responsibilities will no doubt feature strongly in both parties’ campaigning in what is likely to be an election year. Our prediction is that strengthening employment protection will feature strongly in both parties’ manifestos as a quick-win crowd pleaser. Our advice to employers? Stay alert!
Changes to holiday pay now in force
Just before Christmas we warned our readers that The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 would come into force on 1 January 2024. They are now indeed in force and, as a reminder, here is the guidance note we prepared at the time focusing on two changes that will be of particular interest (rolled-up holiday pay (which is now permissible) and holiday pay and commission payments). Do speak to a member of the team for additional information and guidance including a review of your holiday pay practices.
Strengthened provisions in the Equality Act 2010
Also in force since 1 January 2024 are The Equality Act 2010 (Amendment) Regulations 2023. The purpose of these regulations is to include certain aspects of EU law within the Equality Act 2010, which would otherwise have been revoked at the end of 2023. They extend protection against direct discrimination relating to pregnancy, maternity and breastfeeding even after the protected period has ended; and indirect discrimination by association (where someone without a protected characteristic suffers discrimination because of their association with someone with a protected characteristic). Employers will have to take particular care to avoid claims for indirect discrimination by association when considering requests for home or flexible working, especially from employees who have caring responsibilities. The amends also widened the scope of the definition of disability to include a person’s ability to participate fully and effectively in working life on an equal basis.
Legislation coming in effect 6 April 2024
Following the enactment of several pieces of legislation in 2023, a number of regulations were laid before Parliament before the end of the year, introducing additional rights for employees. The following come into force from 6 April 2024:
a. Day-one right to request flexible working. The Flexible Working (Amendment) Regulations 2023 allow employees to request flexible working from day one of their employment (removing the 26-week minimum service requirement currently in force).
b. Extended protection from redundancy: The Maternity Leave, Adoption Leave and Shared Parental (Amendment) Regulations 2024 will protect pregnant employees from redundancy from the time they announce their pregnancy to up to six months after they return from maternity leave. Parents taking adoption or shared parental leave will also be protected for a similar period. Protection is also to be extended to employees who have suffered a miscarriage.
c. Carer’s leave: The Carer’s Leave Regulations 2024 will entitle employees to a day-one right to take a week’s unpaid leave within a 12-month period if they are responsible for caring for dependants with long-term care needs. The leave can be taken as a block or as individual or half days. Long-term care is defined as someone needing care for more than three months; having a disability under the Equality Act; or as a result of old age.
d. Paternity Leave: the Paternity Leave (Amendment) Regulations 2024 will allow employees to take their two-week paternity leave in two blocks of a week each (currently, fathers have to take either two consecutive weeks or one week only). Leave can also be taken at any point within the 52 weeks following the baby’s birth and fathers only have to give 28 days’ notice rather than the current 15 weeks before the baby’s due date. These regulations will apply to fathers whose baby’s EWC (expected week of childbirth) is on or after 6 April 2024.
Employers are advised to have a review of their family friendly policies to prepare for the changes in April. Please contact us should you require assistance. Contact us.
Legislation in the pipeline
a. TUPE: On 1 July 2024 changes will come into effect in relation to TUPE for transfers after 1 July 2024. This will remove the requirement to elect representatives for employers with fewer than 50 employees and for those employers, regardless of size, where the transfer involved is of fewer than 10 employees.
b. Sexual harassment: The Worker Protection (Amendment of Equality Act 2010) Act 2023 is expected to come into force in October 2024. Following significant changes made by the House of Lords, employers will not be liable for harassment by third parties and their duty to prevent sexual harassment requires them to take ‘reasonable steps’ rather than ‘all reasonable steps’. If this duty is found to be breached, tribunals have the power to increase any compensation due by 25%. In the light of this forthcoming change, it is worth noting that, following the revelations of sexual harassment suffered by McDonald’s staff at work an EHRC investigation culminated in a legally binding agreement (section 23 agreement) committing McDonald’s to put measures in place to stop harassment occurring in future.
c. Flexible working: It is anticipated that the wider provisions of the Employee Relations (Flexible Working) Act (beyond the day-one right to request flexible working) will come into force in summer 2024. This will give employees the right to submit up to two flexible working requests per year and without the requirement to explain the effect of their request on the business. It also requires employers to consult with the employee before refusing a request and to respond to a request within two months.
d. Neonatal care leave: It is unlikely that the Neonatal Care (Leave and Pay) Act 2023 will come into force until April 2025, giving employers plenty of notice to adjust their policies accordingly. Eligible parents will be able to take up to 12 weeks leave if their baby is admitted to neonatal care following birth. This leave is in addition to maternity and paternity leave. Employees with 26 weeks continuous service will be eligible for statutory pay.
e. Fire and Rehire: The government has confirmed that it plans to publish the final version of its Code of Practice on dismissal and re-engagement, along with its response to last year’s consultation, this summer (2024). The Code is designed to govern the conduct of employers planning to change employees’ terms and conditions by dismissing and then rehiring them. Tribunals will have the power to adjust any compensation award by up to 25% if they rule that an employer (or employee) has not complied reasonably with the Code.
Action: Employers to review current flexible working policies and ensure they comply with the new requirements. We also advise employers to ensure that they are fully up to date with the correct processes for changing employees’ terms and conditions in advance of the Code of Practice being introduced. Apart from not wishing to be on the wrong side of the law, businesses will suffer reputational damage if not seen to be treating their workforce fairly. Do contact our team for any assistance in updating your policies and procedures.
Improving employees’ health
The DWP’s response to the 2023 ‘Occupational Health: Working Better’ consultation was published in November 2023. The main thrust of the proposals is to encourage employers to make more use of occupational health (OH) to support their workforce. It is also acknowledged that any approach to OH will need to take into account the different needs of different businesses, including the creation of a group purchasing scheme to enable SMEs in particular to afford high quality OH intervention. The proposals include:
a. A voluntary minimum baseline for OH intervention in the workplace to help employers support their employees more effectively.
b. Additional guidance for employers through the development of national workplace health and disability standards.
c. Development of a long-term, strategic approach to embedding OH in the workplace.
National Minimum Wage Increase
Following the government’s acceptance of the Low Pay Commission’s recommendations, the increases to the minimum wage and national living wage will take effect from 1 April 2024 and are as follows:
1. Age 21 and over - £11.44 (up from £10.42)
2. 18 – 20 - £8.60 (up from £7.49)
3. 16 – 17 and apprentices - £6.40 (up from £5.28)
Case law
Resignations must stem from serious intent
Summary: Mr Omar, during a heated discussion with his line manager, resigned verbally. At a later point on the same day, the chief executive, having recognised that Mr Omar had not intended to resign, suggested an alternative role within the organisation but then at a later date, confirmed that his resignation did stand as his line manager no longer wished to work with him. Mr Omar was invited to confirm his resignation in writing but declined to do so, instead he sought to retract it. His employer refused to accept his retraction and terminated his employment with one month’s notice. Mr Omar claimed unfair dismissal, citing ‘special circumstances exception’ meaning that his employer should deviate from the normal rule of taking a verbal resignation at face value.
The tribunal heard that Mr Omar had had the opportunity to row back from his threat to resign on the same day as the altercation with his line manager as well as a few days later and had also agreed to put his resignation in writing. The tribunal focused on whether Mr Omar had been offered another role as per his initial conversation with the CEO, which Mr Omar believed he had been but that he had declined it. The tribunal found that he had resigned and was not dismissed so rejected his claim. On appeal, the EAT held that there was no such thing as the ’special circumstances exception’ – the rules that apply to a resignation or a notice of dismissal remain the same regardless of the circumstances, hence a notice of resignation cannot be unilaterally retracted. The original tribunal had not considered the relevant principles when determining the claim, namely did Mr Omar’s words convey a serious intention to resign, the further discussion about his role later that day, and lastly whether his line manager’s antagonism essentially ‘bounced’ him into agreeing to resign in writing.
The EAT has taken a particularly interventionist approach to the case, having set out a set of principles against which a case of this type should be judged.
Employers must not make blanket decisions over ‘return to the office’ policy
Summary: Mrs Follows, a senior lending manager with the Nationwide, was employed full time but worked largely from home, only being required to be in the office for two days a week. This arrangement suited her as she was responsible for looking after her elderly mother. After Nationwide decided that all senior lending staff had to be in the office full time, Mrs Follows refused to agree to change her terms and conditions and was made redundant. She claimed unfair dismissal on the grounds of indirect discrimination by association. The tribunal upheld her claim on the grounds that Nationwide’s decision was not made rationally but on a subjective impression and it had not explored alternatives with her. Nationwide has not appealed.
This is a useful case in advance of the new flexible working rules coming into force in the summer and the strengthened provisions of the Equality Act around discrimination which reflect EU law. It is also a reminder that employers cannot adopt a blanket approach to a change of policy and must consider alternative options when deciding how to achieve their objectives.
Redundancy process must be fair
Summary: Mr De Bank Haycocks was one of a group of employees who was at risk of redundancy in 2020 from the UK arm of US HR software company, ADP. The consultation process followed the US model. The first meeting was held on 30 June 2020, to which the claimant had been invited, followed by a 14-day consultation period ending 14 July 2020, after which the claimant was made redundant. It transpired that all 16 employees had been scored against a subjective set of criteria at the beginning of June, well before the first meeting had been held. The claimant, when dismissed, had not been told how he had scored or how he compared to others in the group. He appealed his redundancy and received his scoring prior to his appeal hearing in August 2020. However, the redundancy situation remained and Mr De Bank Haycocks claimed unfair dismissal. The tribunal found that although the appeal process had been carried out correctly, the redundancy process had not. The consultation should have been carried out an earlier stage and scoring should have been part of that process and not carried out in advance. The employer should also have explored alternatives to redundancy to try and avoid job losses.
Employers must ensure that they follow a proper redundancy process which as a minimum ‘reflects the usual practice in the UK’. The consultation stage must be transparent and fair and carried out at the beginning of the process and not halfway through.
Protecting gender critical belief
Summary: Ms Fahmy had supported the decision of the ACE to give a grant to the LGB Alliance, a decision that was questioned by the deputy director of ACE on the basis that the Alliance’s stance was anti-trans. Following Ms Fahmy’s public support for the decision, a memo was circulated by a colleague criticising those who held gender critical beliefs and included a link to a petition. The memo was active on the ACE internal website for several hours and attracted negative comments directed against Ms Fahmy. The individual was suspended. Ms Fahmy brought a claim for victimisation and harassment on the grounds that holding gender critical beliefs is a protected characteristic. The Tribunal dismissed the victimisation claim but upheld the harassment claim in relation to the petition on the grounds that the judge considered ACE to be liable for that employee’s actions and that it had not taken all reasonable steps to prevent employees from harassing others.
This is a useful reminder, in advance of The Worker Protection (Amendment of Equality Act 2010) Act 2023 coming into force, that employers must take active steps to protect employees from harassment by deploying positive measures such as training and communication.
Settling Future Claims
Summary: The claimant accepted voluntary redundancy with her employer and signed a settlement agreement. After signing the settlement agreement, the Respondent concluded that, as the claimant was aged over 61, no additional payment was due to them under a collective agreement. The Claimant argued that as this collective agreement claim was not known at the time the settlement was entered into, it was a future claim, and such claims could not be compromised. The Employment Appeal Tribunal agreed with the Claimant, but the Court of Appeal did not, and it held that the waiver of future claims was effective due to the particular drafting in this case.
This case is a really good example of why it is worth employers investing in having each individual settlement agreement drafted by professional advisers. Contact us should you require a settlement drafted or any termination advice.