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Employment Law — the year ahead

January 10, 2024

The first full working week in January is always a battle of competing wills:

  1. The survival instinct. Getting up when the alarm goes off at 6am; getting to the office/ logged on for the scheduled start time; getting to 5pm without the head-bobbing micro sleeps kicking in at the time you have been having an afternoon nap over the last two weeks. As Stanley Hudson states in the US version of The Office: “This is a work out the clock situation!!!”.
  2. Being a better, more effective, more organised working monster by making lots of grand plans about how we will adopt better habits for the year ahead. I have had 3 emails today alone from colleagues making suggestions or requesting meetings to discuss how we will approach 2024.

So as we emerge from the festive period cocoon and to try and assist you in focussing on stage 2 of the new year balancing act, I am following the well tread path with my first blog of 2024 and looking ahead to the legislative changes we know about / expect for 2024 that will need some thought in terms of managing and planning within the business.

Helpfully for me, a lot of these developments have already been commented on by my intelligent, witty and attractive colleagues in our employment team in previous blogs, so to make my job easier (i.e. feed my survival instinct) I have included links to those blogs where you can delve deeper into those areas most likely to affect your business (i.e. help you grow your “Working Monster”).

The end of the supremacy of EU law in the UK

1st January

This is really one for lawyers to be aware of, but it is worthwhile being at least familiar with this significant change. This change takes effect form 1st January. Ending the supremacy of EU law will mean that domestic primary or secondary legislation will take priority over retained direct EU legislation in the event of a conflict between the two. The removal of the principle of consistent interpretation will mean that, for matters arising after the end of 2023, domestic legislation will no longer need to be interpreted in line with EU law, although the courts will still be able to use EU law as an external aid to the interpretation of domestic law under ordinary domestic principles of statutory interpretation. Exactly how this will work in practice remains to be seen.   Care is required after the end of 2023 when dealing with acts or events that occurred before the end of 2023, as the original EU provisions and now former rules of interpretation may still apply.

The Working Time Regulations

1st January

There are a number of different changes due to come into effect this year regarding rights and obligations under the Working Time Regulations:
– Simplifying the record-keeping requirements under the WTR 1998 to maintain the requirement to keep “adequate” records, but not necessarily a full record of all daily working hours
– Restating in legislation the effect of retained EU case law regarding carry-over of holiday in certain situations, including (among other things) inability to take holiday as a result of sickness and family leave
– Legislating to incorporate the EU-derived concept of “normal remuneration” into holiday pay, to include (among other things) commission and regular overtime
– Repealing the COVID-19 holiday carry-over rules, with a short transitional period to enable any accrued leave to be used.   More on this can be found in our blog from November and in blog from December last year.

The Working Time Regulations

1st April

Two further changes will take effect later in the year:
– Providing a method of holiday accrual for irregular-hours and part-year workers, based on 12.07% of the hours worked in the previous pay period.
– Permitting rolled-up holiday pay for irregular-hours and part-year workers (for leave years starting on or after 1 April 2024.  

Our blog in October provided an overview of other things to think about in regard to how holiday pay ought to be calculated in light of recent case law.  

Carers Leave

6th April

This is a new statutory right which has been introduced by the Carers Leave Act 2023 introducing a right for unpaid carers of up to a week of unpaid leave per year.   Under the regulations, employees will be entitled to take one week’s unpaid leave a year to provide or arrange care for a dependant with a long-term care need. Employers cannot decline a request altogether but may postpone carer’s leave by up to a month in certain circumstances.   Our blog from November commented in greater detail on this new right.  

Flexible Working

6th April

When brought into force, the Employment Relations (Flexible Working) Act 2023 will:
– Require an employer to consult with an employee if it is considering rejecting a request.
– Permit employees to make two requests in a 12-month period instead of one.
– Reduce the period in which an employer must respond to a request from three months to two months.
– Remove the requirement for employees to specify how the employer might deal with the effects of the flexible working request.  

Flexible Working

6th April

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 will introduce additional redundancy protections (the period of protection after returning to work from relevant leave will be known as the “additional protected period”):
Pregnancy. Redundancy protection will start when an employee tells their employer about their pregnancy. If the employee is entitled to statutory maternity leave, the protected period of pregnancy will end on the day the statutory maternity leave starts. If the pregnancy ends and they are not entitled to statutory maternity leave, the protected period ends two weeks after the end of pregnancy.
Maternity leave. The additional protected period will end 18 months after the expected week of childbirth, unless the employee has informed the employer of the date of their child’s birth, in which case the additional protected period will end 18 months after that date.
Adoption leave. The additional protected period ends 18 months after the child’s placement or the date they enter Great Britain (in the case of overseas adoptions).
Shared parental leave. For those taking six or more consecutive weeks of shared parental leave but who have not taken maternity or adoption leave, the additional protected period ends 18 months after the date of the child’s birth or placement (or date they enter Great Britain).

Transfer of Undertaking (Protection of Employment) Regulations

1st July

For transfers taking place on or after 1st July, TUPE will be amended to remove the requirement to elect employee representatives for:
– Employers with fewer than 50 employees.
– Employers of any size involved in a transfer of fewer than ten employees.

In either case, the employer will be able to consult directly with employees, where no existing employee representatives are in place.

Dismissal and re-engagement (“fire and re-hire”)

Spring 2024

A new statutory Code of Practice to address “fire and rehire” practices is expected to be finalised and issued sometime in the springtime.   The Code will set out a step-by-step process that an employer should follow to explore alternatives to dismissal and to engage in meaningful consultation with trade unions and employee representatives or directly with the affected employees to find an agreed solution.   The draft Code can be viewed here and the government will provide this in its final form in the spring too.

Terms and conditions of employment

September 2024

The Workers (Predictable Terms and Conditions) Act will be introduced aiming to give workers and agency workers the right to request more predictable terms and conditions of work where there is a lack of predictability to their work pattern.   It will be possible to make two applications in a 12-month period and applications may be rejected on statutory grounds. Further details of this right will be fleshed out in regulations, yet to be published.

Sexual harassment

October 2024

The Worker Protection (Amendment of Equality Act 2010) Act 2023 will:
– Introduce a duty on employers to take reasonable steps to prevent sexual harassment of their employees.
– Give employment tribunals the power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached the new duty to prevent sexual harassment.

Our blog from November offered some more detailed comment on this. You can read that here. Our blog from June also provided an oversight of other types of related leave that workers may benefit from where they have caring responsibilities.

The last few years have been relatively quiet on the employment law legislation front, so in comparative terms 2024 gives us a lot to get our teeth into: ideal for those of us looking to get stuck into the year ahead!

As always, Blackadders Employment Team are happy to provide advice to you and your business in regard to any of these issues or any other employment law issues you require support with.

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.


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