Employment Law Updates 2024 – things to be aware of and to look out for

Indirect discrimination without a relevant protected characteristic: the requirement for the person claiming indirect discrimination to have the relevant protected characteristic has been removed – all that matters is whether they suffer the same disadvantage as someone with the protected characteristic. For example, a man who is a primary carer for children can now bring a claim for indirect sex discrimination arising from inflexible working practices, despite the fact it is usually women who experience this disadvantage.

Direct discrimination regarding access to employment: employers may now be liable for direct discrimination in relation to discriminatory statements made outside of an active recruitment process, even where there is no ‘identifiable victim’. The new regulations prohibit discriminatory statements directed to the public in connection with decisions about employment.

The right to equal pay: a woman bringing an equal pay claim must compare her contractual terms with those of a comparable man. The new regulations codified case law interpretations of ‘comparator’:

• a worker is a comparator if a single body is responsible for the alleged inequality and have the power to restore equal treatment between the claimant and comparator; and
• a worker will be a comparator if the terms on which the claimant and the comparator are employed are governed by the same collective agreement.

The definition of disability: the new regulations extended the definition of disability, in that references to a person’s ability to carry out normal day-to-day activities includes a person’s ability to participate fully and effectively in working life on an equal basis with other workers.

For further updates and information please read our blog: Changes to the Equality Act with effect from 1 January 2024 – Be Aware UK (dlapiper.com)

• When calculating holiday pay, the following need to be included:
  • payments linked to performance e.g. commission payments;
  • payments relating to professional or personal status relating to length of service, seniority or professional qualifications;
  • other regular payments e.g. overtime payments.
• Holiday entitlement for irregular hour workers and part-year workers is now calculated as 12.07% of actual hours worked in a pay period.
• Employers can lawfully use a ‘rolled-up’ holiday pay system (i.e. paying holiday pay the same time as basic pay) only for irregular hours and part-year workers.

Full details of the recent changes in respect of holiday pay can be found here –  The latest changes to holiday pay in the UK and what they mean for employers – Be Aware UK (dlapiper.com)

• April 2024 brings the yearly update to employment rates and limits.
• For full rates and dates, please visit our rates and limits page.

Paternity Leave

• The two weeks’ leave and pay can now be taken as two non-consecutive blocks of one week, rather than only in one block of either one or two weeks.
• Leave and pay can be taken at any point in the first year after birth or adoption, instead of within the first 8 weeks.
• The notice period required for each period of leave and pay has been reduced.

Enhanced Redundancy Protection

• Under previous law, employees on maternity, shared parental leave and adoption leave already had special protection in a redundancy situation, giving them priority for redeployment over other redundant employees.
• The new regulations extend the period of protection for a period of 18 months after birth or adoption.
• These regulations also introduce redundancy protection during pregnancy, starting from when the employer is informed of the pregnancy.

Carer’s Leave

• There is a new statutory right to carer’s leave, which entitles employees to one week’s unpaid leave in each 12-month rolling period, to provide or arrange care for dependants with long-term care need.
• The leave can be taken in increments of half days, up to a one-week block.
• The notice period is the greater of three days or twice as many days as the period of leave required.
• There is no qualifying period of service required.
• An employer cannot decline a request, but they can postpone the leave if they reasonably consider business operation would be unduly disrupted if it allowed the leave.

For further information please see https://blogs.dlapiper.com/beaware/april-2024-a-summary-of-employment-law-changes-coming-into-effect-this-month/

• The right to request flexible working is now a ‘day 1’ right, with no qualifying period of service.
• Employees no longer have to explain what effect their requested change would have on the employer and how any such effect might be dealt with.
• An employee is entitled to make two (increasing from one) requests in any 12-month period.
• An employer cannot refuse a request unless the employee has been consulted.
• The time an employer has to make a decision has been reduced from three to two months.
• Please see the revised ACAS Code of Practice on requests for flexible working for further guidance, which ACAS will take into account when considering relevant cases.

For further information please see https://blogs.dlapiper.com/beaware/april-2024-a-summary-of-employment-law-changes-coming-into-effect-this-month/

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With effect from 1 July 2024, businesses that are subject to a TUPE transfer of less than 10 employees or have less than a total headcount of 50 employees will no longer need to elect employee representatives for the purposes of TUPE consultation. In such circumstances, if employee representatives are not already in place, the business will be permitted to consult with the affected employees directly.

• The ‘fire and re-hire’ concept is a tactic sometimes used by employers to make changes to terms and conditions of employment when they are unable to reach agreement with employees.
• A Code of Practice is expected to come into force by Summer 2024 which provides that employers should consult with employees and explore alternative options when seeking to change terms and conditions, without raising dismissal unreasonably or as an unfair negotiating tactic.

July 2024

From October, employers will have a proactive duty to take reasonable steps to prevent sexual harassment in the workplace.