by Anna Elliott, Osborne Clarke

Taking stock …

2023 saw the employment landscape seek to resettle in the first few years after the onset of the Covid-19 pandemic, leaving employers to manage a spectrum of challenges as the world of work continues to respond to the pandemic and employment practices continue to evolve.

All employers, in some shape or form, will have seen changing expectations from their workforce and potential recruits as to when, where and how they work and the training, mentorship, career opportunities and benefits open to them, particularly against the backdrop of the cost of living crisis. The importance of a company’s ESG framework is also being increasingly reflected in employment policies and practices, together with other steps to meet the needs of an increasingly diverse workforce.

With the government focused on getting those who are economically inactive (be it through ill health or age) back to work, this year we launched our age report which looks at the issues and challenges employers face, and the ways they are responding, across different sectors.

We have also seen the government seek to simplify and clarify TUPE (the Transfer of Undertakings (Protection of Employment) Regulations 2006) through its consultation, as well as aspects of working time requirements following the UK's departure from the EU (although how successful the new provisions on statutory holiday achieve this in practice remains to be seen). It has also introduced new employee rights around flexible working requests, carer's leave and protection on redundancy (see below).

Legislation providing for a new duty on employers to take reasonable steps to prevent sexual harassment and new statutory rights for parents to take neo-natal leave have also been introduced (although we are still awaiting commencement dates).

… and looking ahead

As we move into 2024, many employers will be keeping hybrid working arrangements under review; the end of 2023 has already seen some large businesses bring more clarity around their policies to ensure that expectations on attendance at a place of work are clear. We are likely to see employers continue to review and adapt working arrangements to address client and workforce demands, while keeping in mind their contractual and statutory obligations to each employee, and employee relations issues and the benefits of a diversified employee pool more generally.

Employers will need to ensure that the new legal rights introduced at the end of 2023 (that come into force during 2024) are reflected in policies and procedures and that managers receive appropriate training to ensure that these new rights are reflected in practice.

Surprisingly, given the media attention often focused on employment rights, an Acas survey has found that 70 per cent of workers were unaware that a statutory right to request flexible working will become a day one right (and which is now expected to come into effect on 6th April 2024).

However, it is likely that a spotlight will fall again on flexible working in the run-up to April, particularly where employers look to clarify and draw back on more flexible hybrid working arrangements. Employers should ensure that they are prepared for an increase in requests, although it remains important to remember that the statutory right is simply a right to request flexible working and not an absolute right to do so.  

The increasing role of artificial intelligence is also set to drive HR agendas during 2024. While for many businesses, we do not anticipate that it will replace current jobs in their entirety, it is becoming clear that generative AI tools are a potential replacement for some of the tasks that employees have routinely performed and employers will need to assist employees in re-focusing their duties and ensuring that they have the appropriate skill set to do so.

However, employers will need to be alive to the potential need for restructurings involving changes to terms and conditions and/or redundancies and the legal and practical issues these processes bring.

HR and employment counsel must also remain aware of the inherent risks within other AI tools that they may use directly or indirectly within their business: it is well recognised that AI tools may in fact produce discriminatory results or inaccuracies. It will be important to ensure that appropriate checks and balances are in place and practices reflect regulatory and other guidance on the use of AI in the workplace. International employers will also need to keep in mind the different legal frameworks governing AI across jurisdictions, with the EU and other countries taking different approaches to regulation.

2024 looks set to be just as busy as 2023 for employment law. Many will be keenly looking out for the manifesto commitments from the political parties as we head towards the next general election; indications are that should the Labour Party form a government, we are likely to see a number of very significant reforms to employment law.

Meanwhile, employers must continue to meet the everyday challenges that the workplace brings, for example:

• managing performance issues, particularly where employees are working remotely

• dealing with ill health and ensuring that appropriate reasonable adjustments are made for those who are neurodivergent or who have physical and mental health disabilities

• dealing appropriately with flexible working and other requests for leave, bearing in mind the risk of discrimination and impact on the wider workforce

• keeping watch on emerging trends, such as age discrimination risks and claims of positive discrimination as the workforce diversifies, menopause, an increase in protected disclosures and individuals claiming protection for philosophical beliefs, particularly against the backdrop of climate change and wider ESG initiatives

While it has been reported that Ministry of Justice figures show that the numbers of employment tribunal cases have decreased between July and September this year, compared with the same period in 2022, employers should not become complacent and continued careful management of the legal and practical risks arising from employment law, together with employment relations more broadly, will be critical.  

Changes to take effect in April 2024

The past weeks have seen the government publish a number of draft regulations which bring into effect a number of employment law changes in April 2024 relating to flexible working, carer's leave and widening the special protection on redundancy during pregnancy and for those returning from particular periods of statutory family leave.

These are in addition to the previous announcements around changes to TUPE consultation and statutory holiday, taking effect from 1st January 2024.

Flexible working

Statutory regulations laid before Parliament remove the 26 weeks' qualifying service requirement to make a statutory request for flexible working from 6th April 2024 - a right to make such a request will become a day one right for all employees.

We are still waiting for regulations to be published which bring other changes to the statutory right to request flexible working regime into force; these include the right for an employee to make two requests (rather than one) in any 12- month period and the obligation on employers to respond to a request within two months (rather than the current three). However, it is anticipated that we will also see these changes coming into force in April 2024.  

The revised Acas Statutory Code of Practice on Flexible Working reflecting these changes is due to be published in 2024. While it is not binding on employers, it may be taken into account by tribunals when considering relevant cases. We are also expecting updated Acas guidance in 2024.

Action: Employers should ensure that flexible working policies are updated to reflect the changes once they are in force. It will be important to ensure that managers are aware of the new statutory requirements and are confident in identifying and managing any flexible working requests. In particular, it is important to remember that an employee making a request may also be protected under discrimination laws and this should be factored into how any request is managed and responded to.

Carer’s leave

The new right to carer's leave is also now due to come into force on 6th April 2024. The Carer’s Leave Act received Royal Assent in May 2023 and draft regulations have now been published, setting out further detail on this new leave right.

The right is a day one right, but to qualify employees must have a dependant with a long-term care need and want to be absent from work to provide or arrange care for that dependant. A long-term care need is defined as an illness or injury (either physical or mental) that requires, or is likely to require, care for more 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 the wider catch-all provision, of a person who reasonably relies on the employee for care.

One week of a carer's leave can be taken each year (regardless of the number of dependants an employee may have).The leave can be taken in half days or full days, up to and including taking the leave as one block of a week.

An employee must give notice of their wish to take leave of twice the length of time they wish to take or three days, whichever is longest, and which also confirms certain statutory requirements. An employer may waive this notice requirement provided an employee is otherwise eligible to take the leave.

Notification of a request to take leave does not need to be in writing and an employer cannot require an employee to supply evidence in relation to a request before granting the leave.

An employer can postpone a request if the operation of the business would be unduly disrupted, subject to meeting certain requirements; the employer must then allow the leave to be taken within one month of the date when the leave was originally requested to start.

Employees will be protected from dismissal or detriment because they take or seek to take carer's leave, or the employer believes they are likely to do so.                                                                                                                                        

Non-statutory guidance supporting the new right is expected to be published.  

Where an employment tribunal considers that an employer has unreasonably postponed, prevented or attempted to prevent them from taking carer's leave, a tribunal can make a declaration and award compensation which it considers “just and equitable” in the circumstances.

Action: Employers will need to draw up and/or amend existing policies and procedures to provide for this new right and ensure that managers are aware of an employee's entitlements in this respect; employers should also use this as an opportunity to consider whether or not any enhanced entitlement should be provided, for example, increasing the amount of leave or providing for some or all of it to be paid.

Employers should also consider what further support may be required; it is important to remember at all times that an employee may be protected under discrimination laws – as previously reported, an Employment Tribunal has held that an employee is protected under the Equality Act 2010 provisions where they are associated with a disabled individual.  

The new right will also need to be reflected in HR administration/payroll systems to track leave taken with appropriate data protection. Employees should be directed to other statutory and leave rights where time off is needed to meet other care needs falling outside the above regime (or any enhanced company provision), such as the statutory right to dependant's leave (where the definition of dependant mirrors that provided for the purposes of carer's leave), the statutory right to request flexible working and annual leave.

Enhanced protection on redundancy for those taking family leave  

The government has also issued draft regulations providing for the extension of protection from redundancy, whereby an employee is offered first refusal of any suitable alternative employment which may be available, for those who are pregnant and those who have taken a period of maternity leave, adoption leave or shared parental leave.  

The draft regulations provide that employees are protected during their pregnancy where they inform their employer of their pregnancy on or after 6th April 2024. When an employee suffers a miscarriage before 24 weeks, the employee will be protected for two weeks after the end of the pregnancy. A pregnancy ending after 24 weeks is classified as a stillbirth, entitling the employee to statutory maternity leave.  

Where an employee takes maternity leave, adoption leave or shared parental leave, the draft regulations provide as follows:

• For those on maternity leave, this special protection will now cover 18 months from the first day of the estimated week of childbirth. It will be changed to cover 18 months from the exact date of birth provided the employee gives their employer notice prior to the end of maternity leave.

• For those on adoption leave, this special protection will now cover 18 months from the adoption placement.

• For those on shared parental leave, this special protection will cover 18 months from the date of birth/the date of adoption placement, but provided that the parent has taken a period of a least six consecutive weeks of shared parental leave and is not protected under the maternity or adoption leave provisions. Where the six-week threshold is not met, an employee will only be protected in line with the existing provisions during the period of shared parental leave.

These protections will apply to periods of maternity and adoption leave ending on or after 6th April 2024 and any shared parental leave starting on or after 6th April 2024, subject to qualifying requirements.

Action: When regulations come into force, employers will need to ensure that managers are aware of these new rights and that they are factored accordingly into any restructuring exercises where redundancies are proposed. The regulations do not prevent these individuals being made redundant but their enhanced rights will need to be factored in when considering alternative roles – this may well create additional selection issues for employers to manage when considering offers of suitable alternative roles, given the potentially greater number of individuals with this enhanced protection.

Where an employer fails to offer an employee a suitable alternative vacancy, the employee will have a claim for automatic unfair dismissal (for which there is no qualifying period of service and compensation is uncapped) and also potentially discrimination.   

The new rights do not cover partners who simply take a period of statutory paternity leave or statutory parental leave or any enhanced company provision in this respect (without also taking a period of statutory maternity, adoption or shared parental leave).

Other developments

Code of practice on “fire and re-hire”

It has been indicated in parliamentary questions that the government's response to the consultation on the draft Statutory Code of Practice on “fire and rehire” practices, and the final version of the code, will be published in spring 2024.

National minimum pay rates from April 2024

The Autumn Statement confirmed that from 1st April 2024 new statutory minimum wage rates will be as follows:

• 21 and over - £11.44 (increase of £1.02)

• 18 to 20 - £8.60 (increase of £1.11)

• 16 to 17 and apprentices - £6.40 (increase of £1.12).

The accommodation offset will increase to £9.99 per day.

The government had previously announced that it would be increasing the statutory national minimum and living wages from April 2024 in line with recommendations from the Low Pay Commission and, from that date, the statutory national living wage will also apply to workers aged 21 and over (at present it only applies to those aged 23 and over).

New statutory minimum payments from April 2024

It has been announced that the proposed statutory weekly rates for maternity, paternity, adoption, shared parental and bereavement pay will be £184.03 (or in the case of statutory maternity, paternity, shared parental and adoption pay, 90 per cent of the employee's average weekly earnings if this figure is less than the statutory rate) and for statutory sick pay will be £116.75 from 8th April 2024.

Anna Elliott is a partner in Osborne Clarke’s employment practice in Bristol