The people agenda 2024

Change is afoot in 2024, not only is a general election looming, but we will see significant reform as a result of developments in UK employment laws. Employees are set to benefit from various new statutory rights, including carer’s leave, greater workplace protections against sexual harassment and for pregnant employees and new parents and a “day one” right to request flexible working. 

In this Law-Now we provide details of these reforms, including when they are expected to come into force and consider the steps that employers should take to prepare for them.

Flexible working

With effect from 6 April 2024, employees will enjoy a “day one” right to request flexible working under the Flexible Working (Amendment) Regulations 2023 which were laid before Parliament on 11 December 2023. The existing requirement for an employee to have 26 weeks’ continuous service to qualify for the right will be removed. 

Further changes to the existing flexible working regime are expected to come into force in July 2024, one year after the Employment Relations (Flexible Working) Act 2023 received Royal Assent. This Act provides changes to the current regime of:

• Allowing employees to make two requests for flexible working in any twelve-month period (rather than the current one request).
• Reducing the decision period within which employers are required to respond to a request from three months to two months.
• Introducing a requirement for employers to consult with an employee before rejecting their request.
• Removing the requirement that an employee must explain what effect the change would have on their employer and how that might be addressed.

The eight business reasons for refusing a statutory flexible working request will remain unchanged.

Acas has updated its existing statutory Code of Practice on handling requests for flexible working to reflect these reforms as well as the shift in attitudes towards flexible working since the Code was originally published in 2014, and has announced that it will publish a final version of the updated Code this year.

Employers should update their flexible working policies to reflect the upcoming changes. The ability to make a request from the start of employment is a significant change, and the shorter decision period and consultation requirement should be communicated to managers to ensure their compliance with the new regime.

For more information, please see our update: Changes to flexible working on the horizon after Employment Relations (Flexible Working) Bill receives Royal Assent.

Enhanced redundancy protection

With effect from 6 April 2024, the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 will provide for the extension of the right to be offered ‘suitable alternative employment’ in a redundancy situation to those employees who are pregnant, on maternity, adoption or shared parental leave and for a period after the leave has come to an end.

Protection for a pregnant employee will begin when she informs her employer of the pregnancy and end either (i) when statutory maternity leave starts or (ii) two weeks after the end of the pregnancy, where there is no right to statutory maternity leave. An “additional protected period” will also apply for 18 months from either:

• the day the child is placed with the employee for adoption, for those who have taken statutory adoption leave;
• the day on which the child was born, or placed for adoption, for those who have taken at least six consecutive weeks’ statutory shared parental leave; or
• the first day of the expected week of childbirth or the day on which the child is born where the employer has been notified of the birth, for those who have taken statutory maternity leave. 

The changes do not prevent employers from making pregnant employees or those who are taking or have taken a period of maternity, adoption or shared parental leave redundant. However, employers should note that all redundancy exercises, including those that start before 6 April 2024 but are continuing on that date, could be affected by these changes. It will be important for employers managing redundancy situations to have clear visibility of those entitled to enhanced protection to ensure that they are offered opportunities for redeployment ahead of other affected employees. 

For further information, please see our update: New family friendly entitlements for employees.

New employer duty to prevent sexual harassment in the workplace 

With effect from October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 introduces a new employer duty to take reasonable steps to prevent sexual harassment of employees in the workplace.

“Reasonable steps” is not defined in the Act but is likely to cover measures such as implementing an equality, diversity and inclusion (or equivalent) policy, issuing guidelines around appropriate behaviour in the workplace and at work-related social events, as well as delivering regular appropriate training to managers and employees on dignity at work. The Equality and Human Rights Commission intends to update its technical guidance, Sexual harassment and harassment at work, to reflect the new duty.

The Act does not reinstate employer liability for third party harassment following substantial amendments to the bill that was originally introduced to Parliament. This means that an employee will not be able to bring a ‘third party’ harassment claim under the Equality Act 2010 against their employer after experiencing sexual harassment by a third party, for example, a client or customer of their employer.

For more information, please see our update: New duty to prevent sexual harassment.

Unpaid carer’s leave

The Carer’s Leave Act 2023 will introduce a new statutory right to one week’s unpaid leave each year for the purpose of caring for a dependant with a long-term care need. The right will apply from “day one” of employment, and include protection from dismissal or detriment as a result of having taken the leave.

Under the Act, a person is a dependant of an employee if they are (i) a spouse, civil partner, child or parent of the employee, or (ii) live in the same household as the employee (other than as a boarder, employee, lodger or tenant) or (iii) reasonably rely on the employee to provide or arrange care. A dependant has a long-term care need if they have (i) an illness or injury (whether physical or mental) that requires, or is likely to require, care for more than three months, or (ii) a disability for the purposes of the Equality Act 2010, or (iii) require care for a reason connected with their old age.

The Carer’s Leave Act 2023 (Commencement) Regulations 2023 brought the Act into force on 4 December 2023, and the Carer’s Leave Regulations 2024, which were laid before Parliament on 11 December 2023, are expected to bring the entitlement itself into force on 6 April 2024.

Employers should consider updating their family friendly policies to include this new right, and ensure people managers are aware of it.

Changes to holiday pay and TUPE

The Retained EU Law (Revocation and Reform) Act 2023 made provision for significant changes to retained EU law and the way it is interpreted and applied by courts and tribunals in the UK following the UK’s exit from the European Union. Whilst the Act is unlikely to have any immediate impact for employers, over time it is likely to lead to a change in the way cases are decided by courts and tribunals in the UK.

The Government has since published its response to the consultations on proposed reforms to certain aspects of retained EU employment law, specifically the Working Time Regulations, Holiday Pay and TUPE and calculating holiday entitlement for part-year and irregular hours workers. Amending regulations – The Employment Rights (Amendment, Revocation and Transitional Provisions) Regulations 2023 – reflecting the reforms being taken forward by the Government came into force on 1 January 2024. The Regulations deal with record keeping requirements under the Working Time Regulations, holiday pay and entitlement, calculating holiday entitlement for part-year and irregular hours workers and TUPE consultation requirements.  

Employers may make changes to the way in which they approach holiday entitlement and pay as a result of the Regulations. Those with part-year and irregular hours workers should ensure that their holiday entitlement calculations for those workers comply with the new rules. Government guidance has also been published to assist employers in interpreting the new rules.

For more information, please see our update: Post Brexit reforms – changes to holiday entitlement and pay.

Statutory right to request predictable working 

The Workers (Predictable Terms and Conditions) Act 2023 (which is expected to come into force in September 2024) gives workers and agency workers a statutory right to request a predictable work pattern where there is a lack of predictability about any part of their work pattern and their purpose in applying for a change is to give them a more predictable work pattern.

This new right is likely to significantly impact employers who rely on casual workers. Employers should also be aware that a fixed term contract of twelve months or less is presumed by the Act to lack predictability which could result in requests from fixed-term workers covering projects or busy periods as well as maternity/other leave.

Employers should consider implementing a policy, or adding a section to existing flexible working policies where there is likely to be overlap, to cover this new right and an appropriate request procedure.

For further information, please see our update: Workers’ right to request predictable working.

Other anticipated changes in 2024

• Data protection. A carry-over motion of the Data Protection and Digital Information (No. 2) Bill was announced in the King’s Speech in 2023. The proposed changes affecting employers include (i) replacing the existing requirement to appoint a data protection officer with a requirement to designate a member of senior management to be responsible for certain data protection compliance tasks, (ii) removing the requirement for data protection impact assessments and replacing it with a less onerous requirement to assess high risk processing and (iii) lowering the threshold for refusing (or charging a reasonable fee) to respond to a subject access request from “manifestly unfounded or excessive” to “vexatious or excessive” in line with the Freedom of Information regime.
• ICO guidance. The ICO has published draft employment practices guidance for consultation on two further employment specific topics: (1) keeping employment records, and (2) recruitment and selection. The consultation is open until 5 March 2024.
• Industrial relations. Since the Strikes (Minimum Service Levels) Act 2023 allows the Secretary of State to set minimum service levels (MSLs) in various sectors, including health, transport, fire and rescue and education during strike action, regulations specifying MSLs for passenger railway services and ambulance services came into force on 8 December 2023 and for border security on 12 December 2023. MSLs in the education sector are currently under consultation. A statutory Code of Practice on the reasonable steps a trade union should take to comply with the Act also came into effect on 8 December 2023.
• D&I in the financial sector. The financial regulators’ consultation on diversity and inclusion in the financial sector (FCA CP23/30 and PRA CP18/23) closed on 18 December 2023. The FCA is aiming to publish a policy statement in H2 2024 and it is expected that the PRA will publish its final policy around the same time.

Employers should start preparing for these changes now by reviewing and amending, as necessary, relevant workplace policies and procedures as well as providing training for HR teams and people managers on the changes, so that requests and/or workplace issues arising are handled fairly and appropriately.

It remains to be seen what else 2024 may bring in the way of other legislative developments. With a general election looming, it is possible that further employment-related reforms may be implemented. The Labour party’s “New Deal for Working People” manifesto promises a number of important changes such as outlawing “fire and rehire”, improving maternity and paternity leave rights and guaranteeing paid carer’s leave, as well as strengthening trade union rights and reversing the decline in collective bargaining, if they are elected.

Please do get in touch with your usual CMS Employment Team contact if you would like to discuss the potential implications of any of these measures for your business and its workforce. Look out for details of our upcoming event at which we will provide some top tips and tricks for managing a variety of knotty people issues.