Employment law 2024: A look ahead at key legislative changes

The end of supremacy of EU law 

The supremacy of EU law was ended by the Retained EU Law (Revocation and Reform) Act 2023 from 1 January 2024. Further change may be take place with the government having the power to revoke, restate, replicate or vary retained EU law. Any such variation does of course have to be within the parameters of the Trade and Co-operation Agreement whereby the EU and the UK committed to a "level playing field" designed to prevent either party from weakening or reducing, in a manner affecting trade or investment, its labour and social levels of protection in place on 31 December 2020.

Source: Retained EU Law (Revocation and Reform) Act 2023.

Key date: With effect from 1 January 2024.

The Equality Act 2010: Employment law reform 

New legislation has been brought in to ensure that principles already established in case law are retained. Key amendments include:

• Special treatment – Special treatment is afforded to women in connection with pregnancy, childbirth or maternity. 
• Breastfeeding – Less favourable treatment on grounds of breastfeeding constitutes direct discrimination on grounds of sex, and that this applies in the workplace as in other settings covered by the Equality Act 2010.
• Returning from maternity leave – Women are protected from unfavourable treatment after they return from maternity leave where that treatment is in connection with the pregnancy or a pregnancy-related illness occurring before their return. 
• Pregnancy and maternity discrimination – Women are protected against pregnancy and maternity discrimination in the workplace where they have an entitlement to maternity leave which is equivalent to compulsory, ordinary or additional maternity leave under the Maternity and Parental Leave etc. Regulations 1999.
• Indirect discrimination by association – A claimant without a relevant protected characteristic, who suffers a disadvantage arising from a discriminatory provision, criterion or practice (“PCP”) together with persons with the protected characteristic may bring a claim of indirect discrimination.
• Discrimination and recruitment – Employers may be liable for conduct equivalent to direct discrimination if a discriminatory statement is made regarding recruitment, even when there is not an active recruitment process underway.
• Equal pay – An employee is able to draw a comparison for the purposes of equal pay claims with another employee where their terms are attributable to a single body responsible for setting or continuing the pay inequality and which can restore equal treatment, or where their terms are governed by the same collective agreement.
• Disability discrimination – The definition of disability must be understood as specifically covering a person's ability to participate in working life on an equal basis with other workers. 

For further information please see our Legal Update.

Source: Equality Act 2010 (Amendment) Regulations 2023.

Key date: Act in force from 1 January 2024.

Sexual harassment: Mandatory duty

New legislation is being introduced which requires employers to take proactive steps to prevent sexual harassment in the workplace. The new law 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.

At one point it was proposed that employer liability for third party harassment would be reintroduced through the Act, however this provision has been removed.

We are anticipating updated guidance/Code of Practice from the Equality and Human Rights Commission, which should help provide clear direction on what is expected of employers. In the meantime employers should review their current policies and working practices to ensure they are in as strong a position as possible to meet the new duty.

Source: The Worker Protection (Amendment of Equality Act 2010) Act 2023.

Key date: The Act will come into force in October 2024.

Flexible working 

The Employment Relations (Flexible Working) Act 2023 makes the following changes:

• Employees can make two requests, as opposed to one, in any 12 month period.
• The timeframe for employers to make a decision on a request is reduced from three to two months (as before, employees can agree to an extension).
• Employers must consult with the employee about their request before refusing it.
• The requirement for the employee to state what effect the change would have on the employer and how the effect could be dealt with is removed.

Making a flexible working request a "day one" right will be introduced by the Flexible Working (Amendment) Regulations 2023.

Please see our Legal Update for a more in-depth look into the flexible working reform.

Source: The Employment Relations (Flexible Working) Act 2023 and the Flexible Working (Amendment) Regulations 2023.

Key date: The Act and the Regulations will be in force from 6 April 2024.

Extended redundancy protection for pregnant employees and new parents

Under existing legislation employees on maternity leave, shared parental leave or adoption leave have special protection when a redundancy situation arises, in that they have an automatic right to be offered any suitable vacancy, if one is available, before being made redundant.

New legislation will extend this protection to cover both pregnancy and a period of 18 months after the expected week of childbirth, unless the employee has notified the employer of the actual date of the child's birth, in which case the additional protection will end 18 months after that date. Similar protection will be afforded to those taking shared parental leave or adoption leave.

Government guidance is expected.

If an employer fails to offer a suitable alternative vacancy they may face an automatic unfair dismissal claim (with no cap) and/or a discrimination claim.

Source: The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 and draft Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024.

Key dates: The Act came into force on 24 July 2023 and the Regulations are expected to come into force on 6 April 2024.

Paternity leave

New legislation will change the way statutory paternity leave is taken. Key amendments include:

• Fathers and partners permitted to take leave as two one week, non-consecutive blocks.
• Leave can be taken at any point in first year after birth or adoption of their child (not just within first eight weeks).
• Shortened notice period, in most cases, to 28 days' notice (exception for domestic adoption cases).
• 28 days’ notice of variation permitted.

Source: Paternity Leave (Amendment) Regulations 2024.

Key date: Regulations in force from 8 March 2024. The regulations will take effect in relation to children whose expected week of childbirth is after 6 April 2024 and children whose expected date of placement for adoption, or expected entry into Great Britain for adoption is on or after 6 April 2024.

Carer's leave

From 6 April 2024 there will be a new entitlement to one week's unpaid leave for employees who are providing or arranging care for a dependant with a long-term care need in each rolling 12-month period. The legislation allows for the leave to be taken in individual days or half days, in blocks of up to a week. An employer cannot decline a request altogether but may postpone the leave in limited circumstances. Employees must give notice of either twice as many days as the period of leave requested, or three days – whichever is greater.

There is already an existing right to take time off for dependants which can be used for emergency care.

Source: Carer's Leave Act 2023 and Carer's Leave Regulations 2024.

Key date: Act in force from 4 December 2023 and Regulations (required to bring the entitlement into force) in force from 6 April 2024.

Neonatal care leave

New legislation has been introduced making provision for a right to statutory neonatal care leave and pay. The leave is expected to be capped at 12 weeks and the pay is expected to be at the statutory prescribed rate or, if lower, 90% of the employee's average weekly earnings. Much of the detail surrounding this new right will be implemented through new regulations. The right to leave will be available to parents or to others with a personal relationship to a child who is receiving, or has received, neonatal care. There is no qualifying period of service for the entitlement to leave. Employees must have at least 26 weeks' continuous service ending with the relevant week in order to be entitled to neonatal care pay.

Source: Neonatal Care (Leave and Pay) Act 2023 (further regulations expected).

Key date: To be confirmed – expected April 2025.

"Normal remuneration"

New legislation has been introduced to codify EU and domestic case law in relation to "normal remuneration" and holiday entitlement. For example regular overtime and commission (among other payments) should be included in the holiday pay calculation. It is important to note that the "normal" rate of pay must be paid for the four weeks' Regulation 13 WTRs leave. Basic pay can be paid for the remaining 1.6 weeks' Regulation 13A WTRs leave, providing this is permitted under the contract of employment.

Source: The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023.

Key date: In force from 1 January 2024.

Holiday accrual for irregular and part-year workers

Holiday will accrue in the first year of employment and beyond for irregular and part-year workers on the last day of each pay period at the rate of 12.07% of the number of hours that the worker has worked during that pay period.

For workers on sick leave or family-related leave accrual will be based on average working hours over a 52-week reference period.

Source: The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023.

Key date: For leave years starting on or after 1 April 2024.

Rolled-up holiday pay for irregular-hours and part-year workers

Rolled-up holiday pay will be permitted for irregular-hours and part-year workers. Such holiday pay may be paid by way of a 12.07% uplift to the worker's remuneration for work done.

Source: The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023.

Key date: For leave years starting on or after 1 April 2024.

Holiday carry-over

Retained EU case law in relation to carry-over of holiday in certain situations, including the inability to take holiday when on sick leave or family-related leave has been codified. Under the new legislation workers are expressly able to carry forward leave that they have been unable to take due to sick leave or family-related leave. There are strict provisions over how much leave can be carried forward and in relation to sickness a long-stop date for taking holiday of 18 months from the end of the leave year in which the entitlement originally arose.

Further, a worker will be entitled to carry forward into the next year the leave that they should have been entitled to take if:

• the employer has refused to pay a worker their paid leave entitlement;
• the employer has not given the worker a reasonable opportunity to take their leave and encouraged them to do so; or
• the employer failed to inform the worker that untaken leave must be used before the end of the leave year to prevent it from being lost.

Please see the Government guidance on holiday pay and entitlement reforms from 1 January 2024.

Please also see our Legal Update for a more in-depth discussion of the reform.

Source: The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023.

Key date: In force from 1 January 2024.

Record keeping

The government has clarified the record-keeping requirements under the WTRs to make it clear that employers must keep adequate records but that they do not necessarily have to keep records of all daily working hours of all their workers.

Source: The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023.

Key date: In force from 1 January 2024.

Small businesses (with fewer than 50 employees) undertaking a transfer of any size, and businesses of any size undertaking a small transfer (of fewer than ten employees) will be allowed to consult their employees directly if there are no existing worker representatives in place.

Source: The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023.

Key date: Applies to TUPE transfers which take place on or after 1 July 2024.

Predictable terms and conditions

Where there is a lack of predictability to a work pattern, workers and agency workers will have the right to request more predictable terms and conditions. Key provisions include:

• Two applications can be made in a 12 month period.
• Employers will be able to reject requests on statutory grounds.
• A 26 weeks' service requirement is expected.

Source: The Workers (Predictable Terms and Conditions) Act 2023.

Key date: The Act and secondary legislation are expected in September 2024.

Agency workers covering industrial action

The High Court quashed regulations which allowed agency workers to cover striking workers. Please see our Legal Update for further information. On 16 November 2023 the government launched a fresh consultation to discuss whether agency workers should be able to cover striking workers. The consultation closed on 16 January 2024.

Source: Consultation - hiring agency staff to cover industrial action.

Key date: We are awaiting the outcome of the consultation.

New legislation is being implemented placing a duty on employers to ensure all qualifying tips are allocated fairly to workers.

Source: Employment (Allocation of Tips) Act 2023.

Key date: The Act is expected to be brought fully into force in May 2024.

New legislation has been implemented allowing the Secretary of State to set minimum service levels for strikes in relevant services, namely: health, transport, education, fire and rescue, border control and nuclear decommissioning and radioactive waste management services. Regulations have already been implemented with regard to rail, border force and ambulance services.

Source: Strikes (Minimum Service Levels) Act 2023 and various implementing regulations.

Key date: Various.