Show notes
Rebecca Cairney and Alice Evans summarise the key employment law changes in 2023 and what to expect from 2024, including flexible working, holiday pay, and updates to employment law legislation.
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Transcript
Rebecca Cairney: Hello, everybody happy New Year, and welcome to the first Employment Insights Podcast My name is Rebecca Cairney, and I'm principal associate in the employment team based in Liverpool. I'm joined today by my colleague, Alice Evans, who is a trainee solicitor based in the Leeds office. Hello, Alice, and thank you for joining us.
Alice Evans: Hi, Rebecca!
Rebecca Cairney: Hi! So today we are going to do a quick round up of the key takeaways from 2023, and what to expect from the year ahead. So, Alice, what topics are we going be covering today?
Alice Evans: So today, we're going to have a little look at agency workers also flexible working, the Equality Act, Employment Rights Act, and also a little bit of holiday pay as well.
Rebecca Cairney: Okay, great. So starting with agency workers, what have we seen in 2023?
Alice Evans: So during 2023 the Government amended legislation to allow employers to utilize agency workers during periods of industrial action.
This was challenged in R versus Secretary of State for business and trade, and the High Court ruled that it was unlawful for the Government without consultation, to have revoked the legislation which initially prevented workers on strike being replaced by agency workers.
Alice Evans: The Revocation was challenged by trade unions on the grounds that one Secretary of State had failed to comply with that statutory duty, to consult for making the regulations.
and 2, that the Secretary of State breach that duty under Article 11 of the European Convention on Human Rights to prevent unlawful interference with the rights of trade unions and their members.
And that was successful on the basis of ground one. But the High Court didn't express a view on ground two, and this meant that much more consideration for employees had to be taken on how to deal with stuff just during strikes.
Rebecca Cairney: And obviously, strikes were a big thing during 2,023. So an important piece of legislation to be aware of.
Alice Evans: Yeah, absolutely, and 180 on the law there as well.
Rebecca Cairney: Thanks, Alice. Okay. So you also mentioned some changes to flexible working. Can you talk us through what's expected?
Alice Evans: Yeah. So a recent one here, on 12 December 2023, Parliament voted on the flexible working amendment regulations. This made flexible working request a day, one right rather than requiring 26 weeks service, so employees could make flexible working requests from day one.
Alice Evans: and this will come into effect for any request made on or after the 6 April 2024. So will be quite a big thing in the in the upcoming New Year, and will mean a change in internal policies and procedures from many employers.
Alice Evans: For the legislation is awaited for the provisions of the employment relations, flexible, working at 2023, which received royal assent in July 2023. And this includes the entitlement to make two requests in any 12 month period rather than the one they currently stands at.
Rebecca Cairney: Okay, thank you. So what was this about a quality act amendments as well?
Alice Evans: Yeah. So another important thing from 2023 that we've picked up on here. In 2023 the Government published draft legislation to amend the Equality Act 2010, with a fact from the first of Jan 2024. So the Equality Act Amendment regulations codify certain EU derived discrimination protections which would otherwise have disappeared at the end of 2023, due to the Brexit agreement. So a notable amendments here include confirmation that employment, discrimination on grounds of breast feeding falls under the protected characteristics of sex
Alice Evans: also an amendment to guidance on the definition of disability, state that consideration of a person's ability to participate fully and effectively in working life on an equal basis with other workers is relevant when looking at day to day activities
Alice Evans: also. Finally, the right to claim indirect discrimination by association. This will cover a person who does not hold the relevant, protected characteristic, but suffers the same disadvantage just at the hands of the employers, provision, criterion, or practice, as those who do have that characteristic.
Rebecca Cairney: Okay, that's really interesting. Thank you. So I also understand that the changes to the employment rights amendment, revocation and transitional provision regulations have now come into force. Is that right?
Alice Evans: Yeah, Rebecca, that's right. So in November 2023, the Government published a draft statutory instrument which contained amendments to the law and holiday pay TUPE. And also working time. So the the proposed changes which have not come into force on the 1 Jan 2024
Alice Evans: were one simplifying holiday pay calculations by making rolled up holiday pay for part year workers and those who work irregular hours lawful. So annual leave will accrue a rate of 12.07% of the number of hours work within any pay period.
Alice Evans: Also allowing small businesses with fewer than 50 employees doing TUPE transfers of any size and businesses of any size undertaking a small transfer. So if fewer than 10 employees to consult their employees directly, if there are no existing representatives in place.
Alice Evans: and finally removing the additional working time. Record requirements set out in the ECJ. Judgment in CCOO v Deutsche Bank which would help but working hours and rest records must be kept for almost all members of workforce, even if they worked regular hours.
Rebecca Cairney: Okay, so that sounds helpful to employers. So were there any other changes to holiday pay that we need to be aware of?
Alice Evans: Yeah. So finally, it's really important to also be aware of the Agnew judgment. And we've discussed this case in some detail on the previous podcast so if anyone needs any further information. Please do give that want listen. But this rule that has departed from the EAT's decision in Bear Scotland and Supreme Court held here that a gap of 3 months of lawful payment does not necessarily break a series of unlawful deductions from wages, so this resulted in an increase of employers claim to back date holiday pay from 300,000 to 30 million in this specific case. So a really important thing for employers to be aware of.
Rebecca Cairney: Yeah, absolutely. That's got huge impact potentially, hasn't it? Okay? So what else is there for us to watch out for in 2024?
Alice Evans: So yeah, as you said already in 2024. Now, so a lot of things that people need to be keeping an eye out for most notably we've picked pointed out that the ACAS consultation on the statutory code of practice on handling requests for a predictable working pattern will close this month. In January 2024,
in March 2024 UK regulators to have incorporated the 5 Principles from the AI White Paper, a pro innovation approach to AI regulation into guidance. So that's going to come into force.
Alice Evans: Spring 2024. The Government just wants to the consultation on the draft statutory code of practice on fire and re hire practices, and the final version of the code will be published. So a really important one to look out for, that we're also expecting in spring 2024 for the protection from redundancy pregnancy, and family leave act 2023, which extends priority status from those on maternity shared parental leave or adoption leave to those who are pregnant, and those who have recently returned from maternity shared parental leave or adoption leave
Alice Evans: a couple more here for you. The Carer's Leave Act comes into force in April 2024, allowing employees caring for dependents with long term, needs to take one week of unpaid carer's leave per year.
Alice Evans: and finally, don't forget that the new national minimum wage will come into force from the 1 April 2024, so that increases the hourly rate to £11.44 pound pence per hour, and the aid threshold lowered to 21 instead of 23
Rebecca Cairney: Wow! So there is an awful lot going on in 2024 already by the sounds of it. So for everybody listening, please keep an eye around for other important employment law updates by subscribing to our podcast channel, employment law insights. But for now, if you do need any assistance with either anything mentioned here or anything else, employment law, related, then please contact myself by email at Rebecca.cairney@weightmans.com.
Rebecca Cairney: And thank you very much, Alice, for providing us with the updates to watch out for the year. So finally, thank you everybody for listening and happy New Year.