Note: progress updates in December 2023 are noted below - in relation to carer's leave, redundancy protection and the right to request flexible work.
The last few months since our August round-up have seen considerable progress on a number of employment law reform initiatives, largely through enactment of Private Members' Bills supported by the Government in place of any Employment Bill (which again was absent from the recent King's Speech). Employers will need to reflect many of these in updated or new HR policies and training over the next 12 months. We have included links to our blog posts on these below; please click through for further details and do get in touch with your usual HSF contact if you would like to discuss the impact of any of these developments for your business.
- Reforms to working time rules on holiday and TUPE: Draft regulations will come into force on 1 January 2024 and make significant changes to the rules for irregular hours and part-year workers for holiday years starting from 1 April 2024. All employers will also need to check their policies comply with the holiday pay and carry-over rules which are intended to codify existing EU law and will apply from 1 January 2024. Minor changes to TUPE consultation requirements for small employers/transfers apply from 1 July 2024.
- EU discrimination case law to be enshrined in legislation: Draft regulations have been published to amend the Equality Act 2010 with effect from 1 January 2024 to codify rights and protections developed by EU case law, including expressly prohibiting associative indirect discrimination and amending the definition of disability. Employers may wish to carry out refresher training for HR, and ensure that descriptions of the types of discrimination claims in detailed equal opportunities/D&I policies are up to date. (Employers may want to amend to take into account the new proactive duty to prevent sexual harassment (see below) at the same time.)
- Both the Protection from Redundancy (Pregnancy and Family Leave) Act and the Carer's Leave Act will be fleshed out and brought into force by (yet to be published) regulations, likely to be April 2024 or later. The former Act will extend the current redundancy protection for employees on family leave (a right to be offered a suitable alternative vacancy, if available, before being made redundant) to pregnant employees, those who have recently suffered a miscarriage, and those who have recently returned from family leave. The Carer's Leave Act will provide for a statutory unpaid leave entitlement for employees caring for a dependent who has a long-term care need. Note: the Carer's Leave Act has been brought into force on 4 December 2023. Further regulations implementing the new right to carer's leave and the changes to redundancy protection have now been published in draft and anticipate the new rights being in force from 6 April 2024 - see here and here.
- Reforms to the right to request flexible work - regulations are required to bring the Employment Relations (Flexible Working) Act 2023 into force, originally expected July/August 2024. Employers will need to update their policies to reflect the changes, including to eligibility and a shorter timetable for dealing with requests. Note: in December 2023 separate regulations were published removing the current service requirement so that the right to make a request becomes a day one right, with effect from 6 April 2024. This suggests that the main changes in the Employment Relations (Flexible Working) Act 2023 are also likely to apply from April, although the regulations bringing that Act into force and the final version of Acas's statutory Code have yet to be published.
- The Worker (Predictable Terms and Conditions) Act will introduce a new right for workers and agency workers to request more predictable working pattern, expected in force in September/October 2024. Acas is consulting until 17 January 2024 on its draft statutory code.
- The Worker Protection (Amendment of Equality Act 2010) Act will come into force on 26 October 2024 and introduce a new proactive duty on employers to take reasonable steps to prevent sexual harassment in the workplace. The EHRC is expected to finalise a new statutory code of practice (likely to be based on the EHRC’s 2020 technical guidance, discussed here), and employers will then need to review and update policies and manager/staff training.
- The Economic Crime and Corporate Transparency Act will introduce a new offence of failure to prevent fraud. Regulations are required to bring it into force, and this will not be before the Government has published guidance on what will amount to the "reasonable fraud prevention procedures" which can establish a defence. Once that is in place (likely sometime in 2024), HR in larger companies will need to review and update staff training and policies in order to be able to establish the defence; employment and worker contracts and whistleblowing procedures may also need updating.
- Further ahead, the Neonatal Care (Leave and Pay) Act also requires regulations to be brought into force, likely not before April 2025. This will provide a ‘day one’ right to neonatal care leave for employees whose baby spends at least 7 continuous days in neonatal care starting within 28 days of birth.
Other possible areas of reform include:
- The Government intends to legislate to give employed fathers and partners more flexibility around when they take paternity leave and reducing the notice required; regulations will be introduced 'in due course'.
- The Government has just published a consultation (until 16 January 2024) on the removal of regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, which prevents employers from replacing employees engaged in industrial action with agency workers. (This follows a judicial review judgment quashing previous regulations as unlawful due to inadequate consultation.)
- The Government has said it will bring forward legislation to place a 3 month statutory cap on the duration of non-compete restrictive covenants in employment contracts, 'when parliamentary time allows'.
- We are still waiting for the outcome of the consultation on the draft Code of Practice on dismissal and re-engagement (this closed in April 2023; Update: the final version is now expected in Spring 2024)
- We are also waiting for progress on 2019 proposals to legislate on the use of confidentiality clauses (NDAs) in settlement agreements and employment contracts.
- Consultations on the Government's Disability Action Plan and on measures to increase employer uptake of occupational health services ended in October 2023 and responses are awaited. Update: the Government's response was published on 22 November and provides that it will create a voluntary minimum framework for quality occupational health provision, and will explore new voluntary national workplace health and disability standards, options for a potential new SME group purchasing framework supported by a digital marketplace, and fit note reform (on which it will consult further). It is also continuing to consider the case for providing further support to employers through the tax system (and will respond to the consultation Tax Incentives for Occupational Health' in due course).
- The Buckland Autism Employment review was due to report to the Secretary of State this September 2023 with recommendations on measures to support employers in recruiting and retaining autistic people.
- Government research into the whistleblowing regime will now conclude at the end of 2023 (originally expected by the Autumn); there is no indication as yet whether reforms will be proposed.
- It is not known whether any proposals will come out of the pay transparency pilot scheme run in 2022. This required participating employers to include information about salary details in job advertisements and refrain from asking candidates to disclose salary history during the recruitment process.
