Key changes employers need to make for 2024 – are you ready?

There are numerous changes in employment law that are expected to come into effect early next year. We have outlined the key changes and steps employers should take for good practice and to ensure they are prepared to implement these changes in good time.

1. Qualifying workers will be able to request predictable working hours – The Workers (Predictable Terms and Conditions) Act 2023

The Act is expected to come into force in September 2024, having received Royal Assent on 18 September 2023. It will provide workers and agency workers with the right to request a predictable work pattern, where they have an otherwise unpredictable working pattern (zero hours’ contracts or agency workers) subject to satisfying the qualifying criteria below. These include:

• Minimum length of service: This is expected to be 26 weeks’ continuous service, which will be clarified through regulations.

• Predictability: The worker making the request should have an unpredictable working pattern. Workers on zero hours’ contracts and fixed term contracts of 12 months or less are likely to lack predictability – so may therefore be the people who perhaps benefit the most from this change.

• The request:

o must relate to their work pattern, specifically the number of hours, days and times they work, and the length of their contract;

o must be intended to be to receive a more predictable work pattern; and

o must not have been made on more than two occasions in the previous year.

Employers may reject applications on statutory grounds. However, if the refusal cannot be justified, then the employer could be at risk of a worker bringing a claim against them. It is important for employers to properly understand the qualifying criteria for workers who will be able to request a predictable working pattern and the grounds on which employers can refuse to grant such a request.

ACAS has produced a draft code of practice for employers on handling worker requests for a predicable working pattern: ACAS Code of Practice. This should help employers deal with requests appropriately and efficiently, whilst ensuring compliance, though this can be equally achieved through managerial level training.

2. Flexible working requests to become a day one right – Employment Relations (Flexible Working) Act 2023

This is expected to come into force in mid-2024, havingreceived Royal Assent on 20 July 2023. It’s likely that the reason behind the new changes is due to the new world of working facilitated by the pandemic and the increase in the number of businesses operating remote or hybrid working models. The changes include:

• Qualifying period of service: Employees would not be required to have a qualifying period of service to be eligible for flexible working, removing the current requirement to have 26 weeks’ continuous servicebefore being entitled to make a request.

• Number of requests: Employees would be able to make two requests per year – previously one request per year.

• Explanation: Employees would not be required to explain the effect the request would have on the employer – currently required.

• Rejection: Employers would be required to consult with the employee first before rejecting a request – not currently required.

• Response period: Employers would be required to respond to the request within three months – previously two months.

The changes are likely to result in more requests being made for flexible working, given the expected removal of the minimum service requirement and permission to make two requests per year. Employers should ensuretheir current policies are updated in line with the expected changes and training relevant staff members and managers on the new rules, to ensure compliance with the new legislation and that relevant internal frameworks are in place to process flexible working requests. Employers should read through the draft code of practice on handling requests for flexible working, (which can be found here: ACAS Code of Practice)

3. Increased duties on employers to prevent sexual harassment at work – The Worker Protection (Amendment of Equality Act 2010) Act 2023

This will come into force on 26 October 2024. The amendments provide better protection for employees from harassment and sexual harassment, which we have outlined below:

• Duty of care: Employers would be under a statutory duty to prevent sexual harassment by being proactive and in being required to shift the focus from redress to prevention.

• Compensation: Failing to do this could result in acompensation uplift of up to 25% by an Employment Tribunal in a claim for sexual harassment – meaning, employers should treat these changes very seriously. This is important to keep in mind as damages for cases of sexual harassment are uncapped.

Employers should have in place a complaints register, which should be kept secure with access restricted to those on a need to know basis, regularly review policies and circulate amongst all employees and conduct anti-harassment training for all members of staff (not just those who are senior).

4. Employees can now take carer’s leave – the Carer’s Leave Act 2023

This Act is expected to come into force in April 2024 andintroduces a statutory entitlement for employees to take carer’s leave. Key parts of the act are summarised below:

• Statutory unpaid leave: Employees may take one week of unpaid leave per year to care for dependents with long-term needs.

• Qualifying period of employment: Employees are entitled to take carer’s leave from the first day of their employment.

• Dependent: Employees may only take leave to care for spouses, civil partners, children or parents; or a person who lives in the same household; or a person who reasonably relies on the employee for care.

• Long-term need: The dependents cared for by the employee must have an illness, injury, disability orold age that requires or is likely to require care for more than three months.

• Evidence: Employees are not required to provide evidence as part of their request, though employers should have clear processes in place to consider such requests.

• Protection: Employees are guarded from detriment or dismissal arising from the request for carer’s leave.

Employers should ensure, in line with good practice, a new carer’s leave policy is incorporated into their staff handbooks (with staff being made aware of its existence), and prepare the necessary forms for employees to complete.

5. Holiday pay reform – the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023

The draft regulations are due to come into effect on 1 January 2024 and are intended to amend the law relating to holiday pay and working time. The regulations would need to pass the final stage of the legislative process before becoming the law, though this is to be expected.

What could the proposed changes mean for employers?

• Holiday pay: A week’s pay for holiday will include commission payments, payments based on length of service, seniority and professional qualifications, and payments that have been consistently paid in the preceding 52 weeks of the calculation date, which may include overtime pay. Unfortunately, it has been left unclear whether bonus payments would be included under the definition. Employers would need to alter current holiday calculations to ensure compliance with the regulations before 1 January 2024.

• Rolled-up holiday pay: Employers are permitted to pay rolled-up holiday pay for workers with irregular hours and part-year workers. Employers are alsopermitted to use a 52-week reference period for calculating holiday pay for workers with irregular hours and part-year workers who are on long-term sick leave or family leave.

This means that employers may choose whether to pay i) holiday pay when holiday is taken at the rate of a week’s pay for each week’s holiday or ii) pay rolled-up pay as a 12.07% uplift to the hours worked in a pay period.

• Carrying over holiday: Under the regulations, all workers will be entitled to carry over holiday if the worker was unable to take some or all of their holiday due to having taken statutory leave and sick leave, or if the employer failed to recognise their right to or providing a reasonable opportunity totake annual leave or informing them that leave would be lost if not carried over. Employers should update their polices and systems to ensure compliance with the regulations.

The COVID-19 carry-over rules are due to be repealed on 1 January 2024, therefore, anypandemic related adjustments for carry-over should be removed from existing internal policies.

• Record keeping: Under the regulations, employerswould not be required to keep records of the daily working hours and rest of all workers if this can be done through alternative methods. Employers should review their record keeping policies and systems to ensure compliance with the regulations.

• TUPE: Minor change to the TUPE Regulations(which come into effect where a business is being sold or where the provision of services is being altered) permitting smaller employers (with less than 50 employees) or employers carrying out small TUPE transfers of less than 10 employees to inform and consult their employees where there are no appropriate representatives.

6. The Equality Act 2010 (Amendment) Regulations 2023

The draft regulations are due to come into force on 1 January 2024 and are intended to preserve certain discrimination protections from EU law, which would have otherwise ceased to have effect from 31 December 2023. The key changes are:

• Definition of disability: When considering whetheran impairment has a substantial and long-term adverse effect on the person’s ability to carry out day-to-day activities, a person’s ability to participatein their professional life on an equal basis with other workers would need to be considered.

• Recruitment: Direct discrimination protection wouldbe extended to discriminatory statements made regardless of whether a recruitment process is ongoing or if it is not directed to any particular individual.

• Breastfeeding: Discrimination in relation to breastfeeding shall amount to sex discrimination.

• Pregnancy and maternity: Discrimination claims may be brought for discrimination on the grounds ofpregnancy and maternity, where an individual is entitled to maternity leave. Furthermore, more favourable treatment on the grounds of maternity would be permitted.

• Discrimination by association: Currently, employees may claim direct discrimination by association against their employer. Under the draft legislation, employees would be able to bring claims for indirect discrimination by association.

• Equal pay: A single source test is introduced for identifying an equal pay comparator. The test would allow workers to compare their pay to others working for a different employer, as long as a single body is responsible for the inequality and has the ability to restore equal treatment (for example within a group of companies or the civil service).

7. Changes to non-compete clauses on the horizon?

The Government announced their plans to cap non-compete clauses to 3 months in May 2023 – though it is still up in the air when this change is expected to be rolled out. Non-compete clauses are contained in someemployment contracts and prohibit an employee from joining or starting a competing business (sometimes within a specific geographic area) for a specified time period (usually 3-12 months) after leaving.

Employers should note that the proposed changes would not affect their ability to use paid notice periods and garden leave, and employers may continue to rely on longer non-solicitation, non-dealing and confidentiality clauses.

It is unclear at this stage whether the proposed changes would affect non-compete clauses contained in existing employment contracts and when these changes are expected to come into force. Please keep an eye out for more on that on our website!

8. ACAS Guidance on Sickness Absence

ACAS has recently updated its guidance on sickness absence, which we have summarised below:

• Definition of sickness absence: Employers and employees are reminded that both physical and mental health problems are considered equally important, and both should be considered as a sickness.

• Fit notes: Employees are not required to provide fit notes or other medical evidence if their sickness absence is to last for no longer than 7 calendar days.

Employers should consider updating their sickness policies to align with the ACAS guidance. Although ACAS guidance is not legally binding, they are considered by Employment Tribunals in claims brought against employers, potentially resulting in employers being penalised for non-adherence.

• Recording absencesEmployees’ medical records must be kept secure, and access should be limited to an absolute minimum. Employers should consider how well and when they begin recordingsickness absences.

Employers should always record sickness absences regardless of their duration, as this would help identify any underlying medical conditions that their employees may be suffering from, which would allow the good employers to consider whether any reasonable adjustments could be made.

• Return to work: Employers should arrange a return to work meeting for employees that are returning from absence. Good employers should always arrange these meetings to express their concerns over their employees’ wellbeing, adhere to their duty of care to ensure the employee is truly ready to return to work, and identify whether any reasonable adjustments could be made.

In addition to caring for its employees, these meetings (if properly run) will also serve to protect the employer against any claims for disability discrimination or failure to make reasonable adjustments. In order to reduce this risk further, employers should regularly monitor absences for employees that take sick days here and there, and for the employer to inform the employee whether action would be taken, and at which point, known as trigger points.

If you would like to read through the guidance in full, please find it here: ACAS Guidance.

Although some of the legislative changes are welcome ones, there still exists uncertainties and complexitiesthat employers should stay alert to navigate around. Despite this, good employers should ensure properly communicating the changes above to their employees, in order to ensure their employees are kept informed and pre-empt against any issues caused by miscommunication.

Employers should also note that they do not have long to implement these changes and should act swiftly. If you’re looking to ensure your policies and procedures are compliant with the impending changes, please do not hesitate to contact our specialist employment team: employment@curzongreen.co.uk.

All information is true as at the date of preparing this article. Please always consult the latest legislation or government guidance for accurate information.