Upcoming Legal Changes in 2023/2024

There are several employment legal changes due to take effect in the next few years. We have summarised the main changes below and will be updating our client’s employment documents when required.

 National Minimum Wage

The Chancellor has committed to accept the Low Pay Commission’s recommendations – which will be announced in November. Based on the Low Pay Commission’s latest forecasts, this will see the mandatory National Living Wage increase to over £11 an hour from April 2024. This means the annual earnings of a full-time worker on the National Living Wage will increase by over £1,000 next year.

People currently aged 23 and over are eligible for the National Living Wage.

 Employment Relations (Flexible Working) Bill

Flexible working is a broad term and can relate to working hours or pattern including part-time, term time, flexi time, compressed hours, or adjusting start and finish times. It can also include flexibility over where someone works.

Research has shown, companies who embrace flexible working can attract more talent, improve staff motivation and reduce staff turnover – boosting their business’s productivity and competitiveness.

Workers will benefit from the following new protections once in force:

  • Workers will have the right to request flexible working from day one of a new job.
  • New requirements for employers to consult with the employee before rejecting their flexible working request.
  • Permission to make two statutory requests in any 12-month period (rather than the current one request).
  • Reduced waiting times for decisions to be made (within which an employer administers the statutory request) from three months to two months.
  • The removal of existing requirements that the employee must explain what effect, if any, the change applied for would have on the employer and how that effect might be dealt with.

This received Royal Assent in July. We expect the measures in the Act and secondary legislation to come into force approximately a year after Royal Assent, to give employers time to prepare for the changes.

Protection from Redundancy (Pregnancy and Family Leave) Bill

The Act allows for regulations to be made which would give:

  • Pregnant employees who are at risk of redundancy priority for any suitable alternative vacancy that is available from the point that they notify the employer of their pregnancy.
  • Employees returning from maternity, adoption or shared parental leave who are at risk of redundancy priority for any suitable alternative vacancy that is available following their return to work. It is anticipated that returners from maternity or adoption leave will be protected for six months after their return to work, but that the protected period may be different for shared parental leave given that it may be taken in discontinuous blocks.
  • Employees have the right to claim an automatic unfair dismissal claim where an employer fails to comply with its obligations regarding offering suitable alternative vacancies and the employee is dismissed as a result.

In practice this will mean that a woman who notifies her employer of her pregnancy at the three-month stage and then takes 12 months maternity leave would be protected for a total of 24 months (i.e. six months protection during pregnancy plus 12 months protection during maternity leave plus a further six months protection upon the return to work). At present, such a women would be protected for the 12-month maternity leave period only.

This has received Royal Assent and is expected to come into force in the first half of 2024.

Retained EU Employment Law Reforms

  • Holiday entitlement – Under EU law, a worker’s annual leave consists of both a minimum of 4 weeks under the EU Working Time Directive and a domestic right to an additional 1.6 weeks. The new proposal is for the two types of annual leave to be combined into one statutory entitlement of 5.6 weeks.
  • Rolled-up holiday pay – Employers will be permitted to pay ‘rolled-up’ holiday pay, instead of the previous practice for irregular hours workers to receive an additional amount on top of their regular pay to account for paid holiday entitlement. Employers would add an additional 12.07% to a worker’s pay.
  • Maximum working hours (record keeping) – While there is no plan to remove the limit on average working hours, the proposal is to remove the requirement to maintain records showing the average time of each worker.
  • TUPE – Currently, under TUPE, employers are required to consult with employee representatives if employees are going to be affected by a transfer. The proposal is to allow employers to consult with employees directly for businesses with fewer than 50 employees and where the transfer affects less than 10 employees.

These changes will be cemented into employment law on 31 December 2023.

Using Agency Workers to Cover Strikes

On 13 July 2023, the High Court upheld the claims of the Trade Union Congress and UNISON to rule that employers can no longer use temporary workers to cover workers who are striking.

From 10 August 2023, it is therefore again unlawful to use agency workers to cover any workers who are striking. However, employers can still replace those out on strike by:

  • Engaging new temporary staff directly themselves.
  • Moving employees internally to cover essential jobs.

The Carers Leave Act

This creates a new statutory unpaid leave entitlement for unpaid carers of a dependent with a long-term care need.

Employees (not workers) will have a day one right to take up to five working days of unpaid leave a year.

This Act is not expected to take effect until April 2024.

The Neonatal Care (Leave and Pay) Act

This Act allows up to 12 weeks paid leave for employed parents with a baby that is admitted to neonatal care (28 days old or less).

The right to Neonatal Care Leave (NCL) is a day one right requiring no length of service, mirroring the right to maternity leave. The right to receive Statutory Neonatal Care Pay (SNCP) requires 26 weeks of service and earnings on average of at least £123 a week. This mirrors the entitlement to maternity pay.

The length of neonatal leave will be dependant on how long the baby spends in hospital, with parents entitled to up to 12 weeks of neonatal leave and a minimum of one week.

NCL must be taken in the first 68 weeks of the baby’s birth. It is expected that it will be possible to take it in non-consecutive periods of at least a week.

It is currently unclear what notice and evidence will be required for an employee to exercise this right.

An employee will always take NCL at the end of their other parental leave entitlement. For example, maternity leave cannot be curtailed to take neonatal leave and then re-started. Instead, it will be taken at the end of maternity/paternity leave (or after an employee has returned to work provided it is within 68 weeks of birth).

The new rights are expected to come into force in April 2025.

Workers (Predictable Terms and Conditions) Act 2023

This act introduces a new statutory right for workers to request a more predictable working pattern.

This right will apply to:

  • Workers whose existing working patterns lack certainty in terms of the hours or times they work.
  • Workers on fixed term contracts of 12 months or less.
  • Agency workers.

The main points include:

  • The applicant must specify the change being applied for and the date it should take effect.
  • Employers will be required to deal with any requests and notify the worker of their decision within one month.
  • It is likely that the qualifying period will be 26 weeks service although those weeks will not need to be continuous.
  • A maximum of two applications can be made in any 12-month period.
  • Requests may be refused on any of the six specified grounds listed in the Act.
  • If a request is granted, then employers must offer the new terms within two weeks of granting the request.

The Act has received Royal Assent and is expected to come into force in September 2024.

 We will keep you updated on all of the above.

 If you have any questions, please contact us by emailing enquiries@perspectivehr.co.uk or by phoning 01392 247436.

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