Happy New Year to all our readers and welcome to our first newsletter of 2024. In this issue, we will cover some important changes in employment law made throughout 2023 and highlight the main implications for UK employers.
Retained EU Law (Revocation and Reform) Act 2023
The Retained EU Law (Revocation and Reform) Act 2023, also known as the ‘REUL Act’, revokes certain legislation implementing European Union law in the UK. For UK employers, this means changes to the way that EU-derived law is interpreted in the UK. The Act could potentially lead to workflow and administrative changes during 2024. It also empowers ministers to restate, revoke or replace retained EU law with limited Parliamentary scrutiny. However, no retained EU employment laws disappeared at the end of the year.
What are The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023?
Holiday pay for part-time and irregular hours workers has been reformed so their entitlement is calculated at 12.07 per cent of hours worked in a pay period. The decision was made to reform holiday pay for such workers after the Supreme Court’s decision in Harpur Trust v Brazel resulted in a situation where part-year workers would receive more holiday entitlement than part-time workers who worked the same number of hours annually.
The reforms will also see changes to the Transfer of Undertakings Protection of Employment (TUPE) rights, which protect employees and their benefits when their organisation transfers from one employer to another.
Neonatal Care (Leave and Pay) Act 2023
If an employee's child needs neonatal care, they will be entitled to 12 weeks of leave starting on "day one." However, a minimum of 26 weeks of service will be needed to be eligible for neonatal care pay. Leave may be taken in half days or separate days; it is not required to be taken in a single block. Neonatal care must begin no later than 28 days after delivery and continue for a minimum of 7 days. After the child is born, the leave must be taken within 68 weeks.
Carer’s Leave Act 2023
According to this statute, carers can take up to one week of leave every twelve months to care for a dependent who requires long-term care due to sickness, injury, disability, or old age. Half days or individual days can also be taken as leaves of absence.
Employment Relations (Flexible Working) Act 2023
By allowing employees to submit two formal requests for flexible work arrangements during 12 months, this Act will enhance the current flexible working privileges. Employers will only have two months to review and decide on the application, and they must confer with employees before rejecting any such applications.
Employers need to be aware that the eight statutory reasons for refusing a request for flexible working hours will remain unchanged by the legislation. Additionally, the government has stated that it will introduce ancillary laws to grant employees the right from day one of their employment.
Protection from Redundancy (Pregnancy and Family Leave) Act 2023
Employees on maternity, shared parental, or adoption leave are now protected in that, in the event of redundancy, they are entitled to be offered a suitable alternative role before being let go and must be given preference for the position. Although the regulations required to implement the new right have not yet been released, the new Act will extend this protection to employees who are pregnant as well as those who have recently returned from maternity, adoption, or shared parental leave.
Workers (Predictable Terms and Conditions) Act 2023
With the passage of this act, workers (including agency and zero-hours workers) and employees have a new legal right to ask for a more regular work schedule. If they have worked for the employer for at least 26 weeks, employees on fixed-term contracts lasting 12 months or fewer are also covered. However, workers will not have been required to work nonstop during those 26 weeks, as the legislation's goal is to address the issue of "one-sided flexibility" faced by workers in the gig economy.
Worker Protection (Amendment of Equality Act 2020) Act 2023
It is anticipated that laws about the obligation to stop sexual harassment will take effect in October 2024. All employers will be required by law to take reasonable measures to prevent sexual harassment in the workplace. If an employee successfully files a claim for sexual harassment and reasonable measures have not been taken to prevent it, the Equality and Human Rights Commission may take enforcement action. Additionally, any successful tribunal claim may be eligible for a compensation increase of up to 25%. Our newsletter of 24.11.23 provides further information.
Was there any significant employment case law in 2023?
The case of Uber BV and others v Aslam had considerable implications for UK employers, particularly those operating in the ‘gig economy’. Impacts for employers include:
- Worker definition broadened: "Worker" now includes some on-demand workers outside traditional employment (e.g., Uber drivers).
- Increased worker rights: These workers gain entitlement to minimum wage, paid leave, and whistleblower protection.
Consequently, employers will need to consider the following:
- Contract scrutiny is crucial: Written agreements may not reflect reality, necessitating close examination of working practices.
- Review contracts and practices: Ensure compliance with the ruling to mitigate legal risk.
The case of The Independent Workers Union of Great Britain (IWGB) v The Central Arbitration Committee (CAC) had significant implications for UK employers including:
- Union rights limited: On-demand workers with "genuine" substitution clauses are likely to lack collective bargaining rights.
- CAC decision upheld: The IWGB application to represent Deliveroo riders was rejected.
Consequently, employers will need to consider the following:
- Emphasis on contract terms: Clauses like ‘substitution’ can significantly shape legal interpretation.
- Review contracts and practices: Evaluate reliance on ‘substitution’ clauses and potential impacts on unionisation.
Which key employment bills are being debated by parliament?
- Fertility Treatment (Employment Rights) Bill
This Bill grants UK employees paid time off for fertility treatment and related needs. The government sets duration and pay rates while protecting employees from discrimination or dismissal for using this right. It grants rights not just to pregnant employees conceived through fertility treatment, but also to those undergoing it or seeking consultations. The bill acknowledges the emotional and physical burden fertility treatment poses on employees and their partners.
- Miscarriage Leave Bill
This Bill offers UK employees 3 days paid leave for miscarriage before 24 weeks, anytime within 6 months. No proof or notice is required unless chosen. It acknowledges the profound grief felt and aims to break the stigma by encouraging supportive workplaces.
How 3CS can help
For further information or help with any employment law matter, please get in touch with your usual 3CS contact.
