2024 is shaping up to be an interesting year with a steady stream of legislative change in the employment law space. A number of the developments will be of particular relevance to health-care provider organisations given the number and range of staff they employ/engage (many with irregular hours/work patterns).
In this article we summarise some of the key changes employers need to be aware of which have been or are due to be enacted over the coming months as well as summarising some common themes/areas of interest.
Legislative changes
Post-Brexit changes
From 1 January 2024 some post-Brexit reforms took effect as a result of the Retained EU Law Revocation and Reform Act 2023.
In particular, key EU caselaw decisions concerning holiday pay and discrimination have been written into UK legislation to ensure that their effect is not lost. Specifically:
- Employers are required to maintain full normal pay levels for at least four weeks of an individual’s holiday entitlement and may need to allow workers to carry forward unused holiday entitlement in certain circumstances. For employers paying overtime, or commission, consideration should be given as to whether they are accounting for this in holiday pay calculations, as well as ensuring workers are reminded to take all of their holiday entitlement within the holiday year.
- The Equality Act 2010 (Amendment) Regulations 2023 preserves EU-derived laws on pregnancy and maternity discrimination, discrimination by association, and equal pay, amongst others. The Regulations do not require employers to make any changes per se, but employers should be mindful of the widened scope for claims in some areas including indirect discrimination, recruitment and workplace breastfeeding, as well as keep an eye on associated caselaw developments. (For our summary of these changes click here)
Holiday entitlement and working time records
There are significant new rules relating to holiday entitlement and working time records under The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 (which took effect from 1 January 2024), in particular an entirely new holiday regime for irregular hours workers and part-year workers, which will apply to holiday leave years beginning on or after 1 April 2024. (For our overview of the changes click here).
These Regulations make changes to:
- The Working Time Regulation 1998 by removing the requirement for employers to keep records of daily working time (provided an employer can still demonstrate compliance).
- TUPE by allowing consultation directly with employees (where there are no existing employee representatives) where an organisation has fewer than 50 employees, or fewer than 10 employees will transfer.
- Annual leave and holiday pay by permitting rolled-up holiday pay for irregular hours and part-year workers and incorporating the EU provision of ‘normal remuneration’ to include commission and regular overtime into UK holiday pay. Employers will now be able to calculate annual leave entitlement using the accrual rate of 12.07% of the hours worked in a pay period for workers from the outset of employment.
Flexible working requests
The Employment Relations (Flexible Working) Act 2023 provides a number of procedural changes to how employees make, and employers review/respond to flexible working requests. The Act removed the 26-week minimum service requirement for making a request and Parliament has confirmed that making a flexible working request will be a ‘day one’ right from 6 April 2024. For our summary of these changes, click here.
There are further commencement regulations needed for the full sweep of proposed procedural changes to be enacted so employers should ‘watch this space’. ACAS has, however, produced its draft Code of Practice here for handling requests for flexible working.
Predictable work patterns
The Workers (Predictable Terms and Conditions) Act 2023 will create a new statutory right for workers and agency workers (with at least 26 weeks’ service) who have a lack of predictability in relation to any part of their working pattern to request a more predictable work pattern, provided they meet various criteria.
We do not have the specific details yet, as further regulations are required to bring these rights into force, which are not anticipated until early Autumn 2024. ACAS has, however, also produced a draft Code of Practice here for handling these requests.
Family leave
There are a number of new Acts relating to family leave which will create new employee rights from 6 April 2024. Specifically, these are:
- The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 which provides for the extension of existing redundancy protections whilst on maternity leave, adoption leave, or shared parental leave to also cover pregnancy and those who have recently returned from maternity/adoption leave and shared parental leave.
- The Carer’s Leave Act 2023 and draft regulations will introduce a new statutory entitlement to carer’s leave of one week’s unpaid leave in each 12-month rolling period to provide or arrange care for a dependant with long-term care needs. The Act does not provide a minimum service requirement, so the entitlement is a ‘day one’ right. Employers should be aware that employees have added protected from detriment and dismissal where the reason is that they took (or are requesting to take) carer’s leave.
There is also the new Neonatal Care (Leave and Pay) Act 2023 which will introduce a new type of statutory leave for employees who have a parental or other personal relationship with a child who is receiving or has received neonatal care. The Act provides four conditions that must be satisfied for a person to be entitled to statutory neonatal care leave, however, it is not expected to come into force until April 2025.
Key themes/areas to keep an eye on
- Paternity leave – There are potential changes to paternity leave following the government’s response to its consultation on Parental Leave and Pay, expected in April 2024. This would permit fathers and partners to take the current entitlement of a 1 or 2-week block during the first 8 weeks after a child is born or adopted in two separate ‘blocks’ at any time in the year after birth or placement for adoption, as well as reducing the notice requirements to be given to employers (bringing these more in line with the length of leave).
- Health and wellbeing – The government has announced as part of its Back to Work Plan that it plans to consult on reforming the fit note system. The intention is that individuals whose health affects their ability to work have easy and rapid access to specialised work and health support. The consultation will be launched after current trials which are taking place in a small number of Integrated Care Boards, but in the meantime, the government has updated its guidance on fit notes, which includes a new checklist for employers, as well as case studies and explanations about the forms.
- Fire and rehire – We await the government’s response to its consultation on its draft code of practice on dismissal and re-engagement. The draft code was produced in response to increased attention on the use of so-called fire and rehire by employers during the pandemic, most notably by P&O Ferries in March 2022.
- Data protection – An area of continued interest for both employers and employees is data protection and in particular the Data Protection and Digital Information Bill which the government believes will seize the post-Brexit opportunity to ‘create a new UK data rights regime tailor-made for our needs’. The Bill aims to reduce burdens on businesses and researchers and boost the economy by £4.7 billion over the next decade.
- Statutory sick pay – There is a planned inquiry into the effectiveness of statutory sick pay and how it might be reformed to better support the recovery and return to work of those who claim it. A call for evidence issued by the Work and Pensions Committee will look at the level of SSP, the three-day waiting period and eligibility criteria.
Employers should review their contracts, policies, pay practices and ACAS guidance where applicable, to ensure there are compliant with the plethora of new legislation.
With all the anticipated and confirmed changes on the horizon, Hill Dickinson’s Health Employment team are here to assist with any queries you may have. Please get in touch should you require any support.
For further information, please contact:
Fiona McLellan, Partner, Hill Dickinson
fiona.mclellan@hilldickinson.com
