April 2024 – Imminent employment law changes

Posted Friday 22nd March 2024

April is usually a time for some change in the employment law world (annual changes to national minimum pay and other rates). But this year, employers are bracing themselves for a particularly busy April, with some significant employment law changes.

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A new right to ‘Carer’s leave’ (the Carers Leave Act 2023)

What is changing?

From 6 April 2024 all employees will have a statutory right to a week’s unpaid leave per year to care for a dependant. The right will apply regardless of length of service.

The leave is to be used to provide or arrange care for a dependant with a “long-term” care need, which means:

• an illness of injury (physical or mental) that requires or is likely to require care for more than three months
• a disability under the Equality Act 2010; or
• issues related to old age.

A ‘dependant’ includes:

• a spouse, civil partner, child, parent, a person who lives in the same household as the employee (other than by reason of them being their employee, tenant, lodger or boarder); or
• a person who reasonably relies on the employee for care.

Employers cannot penalise any employee choosing to take advantage of carer’s leave. Dismissal of an employee for a reason connected with their taking carer’s leave will be automatically unfair. Employees are also entitled to return to the same job they were doing immediately before they took carer’s leave.

An employee will be able to bring an employment tribunal claim if their employer has unreasonably postponed, prevented or attempted to prevent them from taking carer’s leave. Compensation is based on what the tribunal considers “just and equitable”, taking into account the employer’s behaviour and any resulting loss incurred by the employee.

What process must employers / employees follow?

• The employee must give notice which is either twice the length of time being requested, or three days, whichever is the longest. The notice must include the fact that the employee is entitled to take carer’s leave and the day(s) or part of a day that will be taken.
• The leave must take a minimum of half a working day at a time. There is no need for the leave to be used on consecutive days.
• Employers can postpone the leave if the operation of the business would be unduly disrupted. The employee must then be allowed to take the requested leave within a month of their original request.

Comment

Employers should consider:

• updating policies, providing guidance to employees and managers of the right and the process of requesting/taking it. Employers may wish to provide training to their managers regarding this new right, to increase awareness.
• creating appropriate forms for employers to complete, if they wish to take the leave.
• whether they wish to offer enhanced leave for carers. This might come in the form of offering the carers leave on a paid basis and/or increasing the amount of leave that may be taken each year.

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Extended rights to request flexible working (Flexible Working (Amendment) Regulations 2023)

What is changing?

From 6 April 2024 all employees, regardless of their length of service, will have the right to request flexible working. Currently, employees are required to have at least 26 weeks’ service to be entitled to make a formal flexible working request.

Other announced changes (which were expected to come into force on 6 April 2024, but which, at this date of this article, are yet to be confirmed) include:

• Removing the requirement for employees, in their written request, to set out what effect the proposed flexibility would have on the employer’s business and how any effect could be dealt with;
• Increasing the number of flexible working requests which can be made in any 12- month period from one to two;
• Reducing the main time period within which flexible working requests must be dealt with (including any appeal) from three months to two months. It will be possible to extend this time period by written agreement with the employee; and
• Requiring employers to consult with the employee before rejecting their flexible working request.

What process must employers / employees follow?

• The employee must submit a written application setting out details of the request and addressing any likely impacts it may have on the employer’s business and how these may be accommodated.
• Employers are no longer required to follow a prescribed procedure but must deal with requests in a “reasonable manner”. As above, consultation will still be required. Acas published a draft Code of Practice in January 2024; Code of Practice on requests for flexible working | Acas provides guidance to employers on the process to follow. It was expected to come into effect on 6 April 2024 but, at the date of this article, that is yet to be confirmed.
• The employer can only refuse the request on the following specified grounds, which must be clearly set out in the decision letter with an explanation as to why they apply:
  • burden of additional costs;
  • detrimental effect on ability to meet customer demand;
  • inability to re-organise work among existing staff;
  • inability to recruit additional staff;
  • detrimental impact on quality;
  • detrimental impact on performance;
  • insufficiency of work during the periods the employee proposes to work; and
  • planned structural changes.

Comment

Employers should consider:

• updating policies, providing guidance to employees and managers of the new processes and changes. Employers may wish to train their managers, to increase awareness.
• The risks of discrimination claims when dealing with flexible working requests, which should be handled carefully.

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Redundancy protection – extended cover for pregnant employees and those returning from maternity/paternity/adoption leave (The Protection from Redundancy (Pregnancy and Family Leave) Act 2023)

What is changing?

From 6 April 2024, employees who are pregnant or returning from maternity, adoption or shared parental leave will gain priority status for redeployment opportunities in a redundancy situation:

• Currently, employees on maternity leave, shared parental leave or adoption leave already have special protection in a redundancy situation: They have the right to be offered priority access to any available alternative vacancies before being made redundant, over other affected employees. However, once employees have returned to work from leave, this ‘priority’ entitlement ends.
• The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 extends the priority status to:
  • pregnant employees; and
  • for up to 18 months after the birth of a child. meaning that employees will be entitled to an additional six months of redundancy protection (following return from maternity/adoption leave and shared parental leave). Special provisions apply to the time period for employees who have suffered a miscarriage.

A failure to offer a priority employee a suitable alternative vacancy would mean the employee has a claim for an automatic unfair dismissal, which would mean a compensatory award that is not capped (and does not require two years’ qualifying service). In some cases, the employee would also have a good claim for discrimination.

Comment

The extended protection only goes so far (i.e. it does not prevent pregnant/leaver employees from being made redundant. It just extends the ‘priority’ protection they have.

Nevertheless, this is a major legal change that will significantly increase the number of employees with priority status in redundancy situations. They include:

• New and expectant mothers who could benefit from a doubling of their period of redundancy protection – from one to two years. That would apply (for example) to an employee who tells their employer about their pregnancy at 12 weeks, takes a year of maternity leave, and are then protected for a further six months afterwards.
• Fathers taking shared parental leave, who will be protected for 18 months.

This could cause potential practical difficulties for employers, who will be faced with increased issues. For example:

• Calculating and recording when protection starts (pregnancy) and ends for each employee, both being parameter points for the redundancy protection period. At what stage would an employee be considered to have ‘notified’ their employer about pregnancy? It is likely that ‘oral’ notification to HR would count. Employers should consider introducing processes for recording when that happens.
• An increased likelihood of redundancy selection (or competitive interview/selection) processes needing to be undertaken for alternative roles, where there are a higher number of employees with ‘priority’ status competing for fewer of those roles. That would need to be handled carefully, at what could be a vulnerable and difficult time (e.g. pregnant and close to child-birth).

Employers will potentially need to take an increasing amount of time to consider restructure / redundancy exercises to take account of these changes. They should also train managers and update relevant policies, to develop awareness of the changes.

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Holiday pay changes

What has already changed?

On 1 January 2024 changes were introduced to the Working Time Regulations 1998 (WTR 1998) to attempt to simplify holiday pay and holiday entitlement.

The changes included:

• clarification that the definition of ‘a week’s pay’ includes commission payments, overtime payments and payments for professional or personal status;
• carry over of 28 days’ leave for workers on family related leave, sick leave or where an employer has prevented the worker from taking their leave; and
• the definition of ‘irregular hours workers’ and ‘part-year workers’

What is changing?

The method to calculate holiday entitlement for ‘irregular hours workers’ and ‘part-year workers’.

In January 2024, ‘irregular hour workers’ were defined as workers whose number of paid hours worked in each pay period during the term of their contract are, under the terms of their contract, wholly or mostly variable i.e. zero-hour workers. ‘Part-year workers’ were defined as workers who, under the terms of their contract, are required to work only part of the year and there are periods within that year of at least a week in which they are not required to work and will not get paid.

The government has now clarified that from 1 April 2024, for holiday years starting on or after 1 April 2024, holiday for these types of workers is to be calculated in hours not weeks and will accrue at a rate of 12.07% of the hours worked in the pay period, over 5.6 weeks.

Holiday entitlement for these workers on sick leave, for example, will be calculated by reference to a 52 week reference period.

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

From 1 April 2024, for holiday years beginning on or after 1 April 2024, employers will have the option to pay these workers holiday pay that is ‘rolled-up’ with their normal pay. This means that employers will be able to include an additional amount to cover the worker’s holiday pay, instead of paying for holiday when a worker actually takes leave, but only if the rolled-up holiday pay:

• is paid at 12.07% of their normal pay;
• is paid in the pay period that the holiday accrues; and
• is calculated by reference to total earnings during the pay period.

Comment

Employers may wish to check eligibility to apply a system of rolled up holiday pay and consider whether they wish/need to change their current policy on holiday pay for staff who would constitute irregular hours or part-year workers. Care needs to be taken when changing holiday pay policies and contractual terms, to minimise the risk of associated claims.

This may be a welcome development for employers engaging variable hours workers in certain industries. However, any employers applying rolled-up holiday pay would be advised to take steps to ensure that workers are still encouraged to take as much of their holiday entitlement as possible (to avoid burn out and under-performance).

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Statutory paternity leave: new rules

What is changing?

From 6 April 2024, new fathers will have more flexibility to choose when to take statutory paternity leave under newly-announced changes.

Under the new rules, employees will be able to:

• take their two-week paternity leave entitlement as two separate blocks of one week (rather than having to take just one week in total or two consecutive weeks);
• take paternity leave at any time in the 52 weeks after birth (rather than having to take leave in the 56 days following birth); and
• only need to give 28 days’ notice of their intention to take paternity leave (reduced from the previous position that required notice to be given 15 weeks before the expected week of childbirth (EWC)).

The new rules apply to babies expected to be born after 6 April 2024 and to children expected to be placed for adoption on or after 6 April 2024.

Comment

These are relatively minor changes to existing entitlements. However, employers are advised to amend relevant policies to reflect these changes and managers should be made aware so that absences on paternity leave can be planned and effectively managed.

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Changes to statutory rates

From 1 April 2024, the National Living Wage, the highest band of the minimum wage, will apply to 21-year-olds, rather than workers aged 23. It will increase from £10.42 to £11.44 per hour.

• The National minimum wage will increase from 1 April 2024 for:
  • apprentices from £5.28 to £6.40 per hour;
  • workers aged 16 to 17 from £5.28 to £6.40 per hour; and
  • workers aged 18 to under 21 from £7.49 to £8.60 per hour.

From 6 April 2024, statutory sick pay increases from £109.40 to £116.75 per week.

From 7 April 2024, the rates of statutory maternity pay, statutory paternity pay, statutory adoption pay, statutory shared parental pay and statutory parental bereavement pay increase from £172.48 to £184.03 per week.

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EU pay transparency regulations

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This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.

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