Looking ahead to 2024: Employment, Pensions and Immigration Law developments

Hold on to your hats! Unlike the previous few years, we have a vast amount of new employment legislation coming into effect in 2024. Due to the ever-changing nature of employment law, it can be difficult for employers and HR professionals to keep up to date and to be prepared ahead of time. 2024 will be particularly challenging with new employment rights in relation to flexible working, holiday pay and entitlement and carers’ leave being just a few of these. Many of these legal developments will be familiar because we covered them throughout 2023 as the legislation made its way through the Parliamentary process. Now that we have definite implementation dates, employers will have to prepare for these many changes. In addition, we have the annual increases to the national minimum wage but this year, there is a significant extension to the scope of the national living wage. However, that’s not all. There are ongoing developments in other key areas that will have implications in the months ahead as well as significant developments in the context of immigration and pensions.

With a busy year ahead of us, and the likelihood of a general election too, we take a look at the key changes and developments to be aware of.

Employment, Pensions and Immigration Law Developments:

• EU Retained Law
• Changes to Equality Act 2010
• Changes to working time
• Agency workers covering strikes
• Handling requests for a predictable working pattern
• Minimum service levels in education
• Good Medical Practice guidance
• Fair allocation and distribution of tips
• Data protection consultations
• Carry-over leave due to Covid-19
• Holiday entitlement and pay
• National minimum wage
• Gender pay gap reporting
• Increase in statutory rates
• Flexible working
• Carer’s leave
• Maternity, adoption and shared parental leave
• Changes to paternity leave
• New Employment Tribunal limits
• Check-off Regulations
• TUPE consultation
• Employment (Allocation of Tips) Act 2023
• The Workers (Predictable Terms and Conditions) Act 2023
• Sexual harassment
• Pensions update
• Immigration update
• Upcoming judgments and hearings
• Other developments
• Conclusion

JANUARY

Retained EU Law (Revocation and Reform) Act 2023

On 1 January 2024, a number of provisions of the Retained EU Law (Revocation and Reform) Act 2023 (REULA) came into force. These included ending the principle of the supremacy of EU law in the UK, with retained EU law and related law now being known as “assimilated law” and removing the general principles of EU law from UK law.

Equality Act 2010 (Amendment) Regulations 2023

These Regulations came into force on 1 January 2024. They amended the Equality Act 2010 to put into place in UK law certain key equality rights which derived from EU law and which ceased to apply in the UK after 31 December 2023. These amendments relate to:

• Direct discrimination related to pregnancy, maternity and breastfeeding.
• Indirect associative discrimination.
• Discriminatory statement made in connection with a relevant recruitment decision may constitute direct discrimination.
• Single source test in equal pay claims.
• The definition of disability whereby a person’s ability to carry out normal day-to-day activities includes their ability to participate fully and effectively in working life on an equal basis.

The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023

These important Regulations came into force on 1 January 2024 but note that certain provisions have different implementation dates throughout 2024, see March, April and July below.

By way of a reminder, following the Supreme Court’s decision in Harpur Trust v Brazel in 2022, the Government launched a consultation and the aim was to make holiday entitlement proportionate to time worked. The consultation closed on 9 March 2023.

The Government also ran a consultation on proposed reforms to reduce recording requirements for working hours under the Working Time Regulations 1998 (“WTR 1998”), to simplify holiday leave and pay calculations and to amend consultation requirements under TUPE (Transfer of Undertakings Protection of Employment) Regulations 2006. This consultation closed on 7 July 2023.

The Government’s response to both consultations was published on 8 November 2023 and see our earlier article for more details.

Significantly, the Government decided to retain the distinction between the two different “pots” of annual leave entitlement in the WTR 1998 and the two rates of holiday pay. Accordingly, workers will continue to receive 4 weeks at their normal rate of pay (Regulation 13) and 1.6 weeks at their basic rate of pay (Regulation 13A).

The following changes were implemented on 1 January 2024:

• Record-keeping requirements under the WTR 1998 are simplified, so that employers do not have to keep a record of workers’ daily working hours if they can demonstrate compliance by keeping “adequate” records.
• Defining what is “normal remuneration” so that a week’s pay in relation to the 4 weeks of annual leave includes regular overtime, commission, and payments for professional or personal status relating to length of service, seniority, or professional qualifications.
• Repealing the Working Time Coronavirus Regulations 2020 which permit the carry-over of up to 4 weeks leave into the following 2 leave years if workers are unable to take leave due to the effects of coronavirus.
• Defining part-year and irregular hours workers.
• Preserving from EU case law the right to carry over untaken holiday into the following leave year in particular circumstances, for example, sickness and family leave.

Government Guidance on the changes in relation to holiday pay entitlement and reforms was published on 1 January 2024.

These are important changes. Employers will need to understand the definitions of part-year and irregular hours workers because of the new provisions that apply in relation to holiday entitlement (see April). This will be a particular issue for employers in certain sectors such as education for example. Employers will also need to ensure that they are keeping adequate records of working hours. Employers will of course have to calculate holiday pay correctly taking into account what constitutes normal remuneration for the purposes of a week’s pay as defined in the Regulations. They may want to review how they calculate holiday pay especially if overtime is regularly paid or commission is earned.

Consultation on agency workers to cover striking workers

The Department of Business and Trade’s consultation on removing regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 will close on 16 January 2024. In Unison v Secretary of State for Business and Trade 2023 the High Court found that previous legislation introduced by the Government to repeal regulation 7 was unlawful, because of lack of consultation. That decision featured at number seven in our Employment Top Ten of 2023.

Full details of the consultation can be found here, with responses to be submitted here.

Acas consultation on draft Code of Practice on handling requests for a predictable working pattern

The Acas consultation will close on 17 January 2024. The new Code of Practice, once finalised, will provide guidance on the new legislation which will give certain workers a right to request a predictable working pattern. There will be new non-statutory guidance too in due course.  

The draft Code can be viewed here, with responses to be submitted here.

Consultation on minimum service levels in education

On 28 November 2023, the Department for Education issued its consultation on delivering minimum service levels (“MSLs”) in the education sector during strike action. The consultation will close on 30 January 2024. Responses can be submitted here.

Education is a devolved matter and the Government is liaising with the Scottish and Welsh Governments. It is seeking views on whether an education minimum service level should apply across Great Britain or whether there should be different Regulations for England, Scotland and Wales.

The legislative measures to tackle industrial action were a constant feature of 2023 and the topic featured at number one in our Employment Law Top Ten of 2023.

Good Medical Practice guidance update

On 30 January 2024, the General Medical Council’s updated Good Medical Practice guidance will come into force. This addresses sexual harassment of colleagues for the first time, whereas the guidance previously only covered sexual conduct relating to patients. To read more about the updated guidance you can read our Regulatory team’s article here.

FEBRUARY

Consultation on fair and transparent allocation and distribution of tips

Consultation on a draft Code of Practice to provide guidance on the fair and transparent allocation and distribution of tips was published on 15 December 2023. The consultation will close on 22 February 2024.  

See the draft Code here and how to respond.

Note that the Employment (Allocation of Tips) Act 2023 received Royal Assent on 2 May 2023. Once implemented, it will ensure that workers receive all tips without deductions by their employers.

MARCH

Data protection consultations

The Information Commissioner’s Office (“ICO”) launched consultations on employment records, recruitment and selection on 12 December 2023. These consultations will close on 5 March 2024.

The ICO recognises that keeping records about workers is a necessary part of running an organisation. However, employers must be clear about why they are collecting and using personal data and must be satisfied that they have valid reasons for collecting it.

The draft guidance on keeping employment records can be found here, with responses to the consultation to be submitted here.

Employers and recruiters have extensive data protection obligations when handling the personal information of candidates during recruitment exercises. This is especially important when special category data, for example, information about health or data revealing racial or ethnic origin is processed.

The draft guidance on recruitment and selection can be found here, with responses to the consultation to be submitted here.

Carry-over of leave due to Covid-19

Regulation 6 of the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 provides that the right to accrue COVID-19 carry over leave ended on 1 January 2024. However, Regulation 4 provides that any leave accrued up until this date can be used before or on 31 March 2024. If employment terminates on or before 31 March 2024, the individual is entitled to claim a payment in lieu of any remaining entitlement.

Most individuals have probably already taken their accrued leave by now. Even so, employers should ensure that in the weeks and months ahead they clearly publicise the ending of the right to carry-over leave and proactively remind staff of the cut-off date for taking leave. Otherwise the leave will be lost.

APRIL

Changes to holiday entitlement and pay

Significant new holiday rules for part-year and irregular hours workers will apply to leave years beginning on or after 1 April 2024.

The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 will amend the WTR 1998 by removing these workers from the scope of the existing Regulation 13 and 13A. Instead, they will be subject to new regulations 15B to 15F of the WTR 1998.

• For leave years beginning on or after 1 April 2024, the 2023 Regulations introduce a new accrual method to calculate statutory holiday entitlement for part-year and irregular hours workers in the first year of employment and beyond. Holidays will accrue at a rate of 12.07% of hours worked at the end of each pay period. This method of accrual may also apply to agency workers depending on their contract. However, an average of working hours over a 52-week period will be needed to calculate holiday accrual for part-year and irregular hours workers who are on sick leave or family-related leave.
• Employers will be permitted to pay rolled-up holiday pay to part-year and irregular hours workers if they choose to and this change applies to leave years beginning on or after 1 April 2024. Part-year and irregular-hours workers are defined in the Regulations.

These are significant changes especially for employers with part-year and irregular hours workers. They will need to understand how such workers are defined in the Regulations. Employers who do not employ part-year or irregular hours workers will be unaffected by these changes but even so, it would be sensible for them to review their contracts of employment especially if staff are engaged under different types of contracts. Identifying whether there are any part-year or irregular hours workers is a crucial first step.

Employers will also need to review and amend any annual leave policies or Staff Handbooks so that they reflect the changes brought in by the Regulations. This is especially important if the leave year starts on or after 1 April 2024 as this review will need to be completed over the next few months. For those employers whose leave year starts on say 1 January, they will have much more time to prepare as the changes won’t apply to them until 1 January 2025.

If employers with part-year and irregular hours workers choose to make use of the option to pay rolled-up holiday pay they will need to ensure that the correct payments are made. If rolled-up holiday pay is being paid for the first time, this will mean a variation to the contracts of employment.

Increase in National Minimum Wage  

From 1 April 2024, the threshold for the National Living Wage will be lowered to workers aged 21 and over (currently it’s 23 and over) and the National Minimum Wage will increase as follows:

• National Living Wage (21 and over) from £10.42 to £11.44 per hour.
• Aged 18-20 from £7.49 to £8.60 per hour.
• Aged 16-17 from £5.28 to £6.40 per hour.
• Apprentice rate from £5.28 to £6.40 per hour.

These are significant increases of between 9.8% and 21.2% and for the first time, across all age bands, there has been an increase of more than £1 an hour.

The current exemption from the National Minimum Wage for live-in domestic workers such as nannies and au pairs will be removed and those individuals will entitled to the National Minimum Wage from 1 April 2024.

Employers should audit their workforce regarding the ages of their staff. The extension of the National Living Wage will mean that more workers will be within its scope which will result in additional costs for employers. Payroll or payroll providers will need to be informed of the details of those benefitting from any increases to ensure that the new rates are paid.

Gender pay gap reporting

The deadline for reporting and publishing is 4 April 2024 in the private and voluntary sector (30 March 2024 for the public sector).  

ONS statistics published on 1 November 2023, showed that among full-time employees the gender pay gap in April 2023 was 7.7% and 8.3% in 2022 and 7.7% in 2021. There remains a large difference in the gender pay gap between employees aged over 40 and those under 40. Finally, compared with lower-paid employees, the gender pay gap among higher earners is much larger, however this difference has decreased in recent years.

Increase in statutory rates

On 6 April 2024:

• The weekly rate for statutory sick pay will increase from £109.40 to £116.75.

From 7 April 2024:

• The weekly rate of statutory maternity, adoption, paternity, shared parental and parental bereavement leave pay will increase from £172.48 to £184.03 or 90% of the employee’s average weekly earnings if this is less than the statutory rate.

The minimum weekly earnings threshold remains at £123 per week.

Flexible Working (Amendment) Regulations 2023  

There will be a significant change to flexible working applications made on or after 6 April 2024. The Regulations remove the 26 weeks’ qualifying period to make a request for flexible working. Instead, the right will become a day-one right.

Other changes contained in the Employment Relations (Flexible Working) Act 2023 are also likely to apply to applications on or after this date, but we are still waiting for confirmation of this. Those changes include, permitting employees to make two requests in each 12-month period, requiring employers to consult before rejecting a request and reducing the employer’s response period from three to two months. There will be no change to the statutory business reasons for rejecting a request.

Acas will be updating its Code of Practice on flexible working and has already published a draft for consultation. This seeks to encourage a more positive approach to flexible working and “open-minded consideration and meaningful dialogue.” Note that Acas will also be updating its guidance on flexible working.

A survey from Acas on 14 December 2023 found that 70% of employees were unaware that the right to request flexible working will become a day-one right. However, extension of the right is likely to receive increasing publicity in the months ahead and many employers may see a significant increase in requests throughout 2024. It is essential that those responsible for managing requests and making decisions about them are aware of the changes and understand the provisions of the new Code of Practice. Providing training to those individuals about the changes would be helpful. Employers will also need to amend their flexible working policies to reflect the legislative changes and updated Code of Practice.

It is important to remember that the statutory right to request flexible working is distinct from any other flexible working arrangements that an employer may have in place. Many employers already enable employees to make a request regardless of their length of service.

Carer’s Leave Regulations 2024

The Regulations will apply in relation to employees who give notice of an intention to take carer’s leave on or after 6th April 2024.

The Regulations will introduce a new day-one right of one week’s unpaid leave a year for those providing or arranging care for a dependant with a long-term care need. There will be limited scope for employers to postpone the leave; they may only do so where the operation of their business would be unduly disrupted. Employees will not be required to produce proof of why the leave is required and the leave does not have to be taken all in one go, but a minimum of half a day must be taken. At least twice as much notice as the time off requested must be given by the carer, subject to a minimum of three days and the notice does not need to be given in writing. Employees will be protected from detriment and dismissal for taking, or asking to take carer’s leave.

Employers will need to prepare a new policy to reflect this new statutory right and should consider how they intend to publicise it. They should also consider what records they want to keep about the amount of leave taken. This is particularly important in large organisations and especially because notice does not have to be in writing and leave can be taken in half days. It will be interesting to see the level of take-up of carer’s leave in the months ahead due to the fact that it is unpaid.

Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024

Currently, employees on maternity, adoption or shared parental leave are given priority over other employees in being offered suitable alternative employment (if there is any) if their existing role is being made redundant.

This protection from redundancy will be extended from 6 April 2024 when the Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 come into force. They will extend the protection so that it applies during pregnancy. They will also extend the period of protection by introducing the “additional protected period” to cover an expectant mother or someone on maternity, adoption or shared parental leave.

In relation to pregnancy, redundancy protection will start as soon as the employer is notified of the pregnancy on or after 6 April 2024.

In relation to maternity leave that ends on or after 6 April 2024, the additional protected period will end 18 months after the expected week of childbirth or if the employee has informed the employer of the date of the birth, 18 months after that date.

In relation to adoption leave that ends on or after 6 April 2024, the additional protected period will end 18 months after the adoption placement.

As for shared parental leave, where this is for a period of six consecutive weeks or more, starting on or after 6 April 2024 and the individual has not taken maternity or adoption leave, the additional protected period ends 18 months after the date of the child’s birth or placement. Where shared parental leave is for less than six consecutive weeks, the additional protected period ends at the end of the shared parental leave taken.

Employers need to be aware of these changes if they are planning any redundancy exercises in the months ahead and to understand the extended scope of the protection and its implications. A particular point to consider is that more individuals will benefit from redundancy protection and that could well mean that more than one individual has “priority”. How will that be managed if there aren’t the same number of vacancies? How will employers decide who should be offered the vacancy, will there need to be some form of selection process between those who have priority?

Employers will also need to ensure that they have in place clear notification procedures from which they can then establish the relevant protection periods for each individual.

Changes to paternity leave

UPDATE: Since this article was written the Government has confirmed that the paternity leave changes below will apply where the expected week of childbirth begins after 6 April 2024 or where the expected date of placement for adoption is on or after 6 April 2024.

Certain changes are expected in April 2024 although no date has been confirmed yet. The aim of the changes is to provide more flexibility for those taking paternity leave.

Employees can continue to take the current entitlement of two weeks paternity leave consecutively. Once the changes are implemented, they will be able to take paternity leave in two separate blocks of one week’s leave if they choose to. It will be possible to take paternity leave at any time in the first year of the birth or adoption placement rather than only in the first eight weeks as at present. Currently, 15 weeks’ notice (confirming the entitlement to take paternity leave, for how long and the dates of it) before the birth or placement for adoption is needed. From April 2024, that 15 weeks’ notice requirement will only apply to the confirmation of entitlement and instead, 28 days’ notice will be needed before each period of paternity leave to be taken.

Employers will need to amend their paternity leave policies once the date for the changes is confirmed and publicise the changes to their workforce.

New Employment Tribunal limits

At this stage, we do not have the details of the new limits on statutory redundancy pay and Employment Tribunal awards which are expected to come into force in April 2024. Statutory redundancy pay is calculated taking into account length of service, the employee’s age and weekly pay which is subject to a statutory cap, currently £643.

MAY

Trade Union (Deduction of Union Subscriptions from Wages in the Public Sector) Regulations 2023

Also known as the “check-off” Regulations these are due to come into force on 9 May 2024.

The Government’s view is that whilst the payment of union subscriptions directly through payroll is the preference of many employees and employers, there should be no cost to the taxpayer for this administrative process. The Regulations require all public sector employers that offer check-off to their employees to charge trade unions a “reasonable” cost for the administration.

Government guidance was published on 19 December 2023 to assist public sector employers in determining “reasonable” cost, and identifying alternative methods for the payment of subscriptions.

JULY

TUPE consultation

The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023, make changes to TUPE consultation for transfers on or after 1 July 2024.

The aim is to give employers more flexibility to consult directly with employees if there are no existing employee representatives in place. Organisations with fewer than 50 employees undertaking a transfer of any size, or organisations (of any size) transferring fewer than 10 employees will be able to consult directly with employees. However, where employee representatives are already in place, employers will still be required to consult with them.

Employment (Allocation of Tips) Act 2023

The Act is expected to be fully in force on 1 July 2024.

Employers will have a duty to ensure that all qualifying tips are allocated fairly to workers, including agency workers, without deduction and no later than the end of the following month in which the qualifying tip was paid.

Employers must have a written policy explaining how tips will be allocated and maintain records on how tips have been handled for at least three years – workers will have the right to request this information and must be provided with it within four weeks. Employers also have the option of paying the tips to an “independent tronc operator” to allocate them to workers, if it would be fair to do so.

As mentioned above (February), a Code of Practice providing guidance on the fair and transparent allocation and distribution of tips will be published and there will also be non-statutory guidance to accompany the Code of Practice.

SEPTEMBER

The Workers (Predictable Terms and Conditions) Act 2023

The Act will give workers and agency workers the right to request more predictable terms and conditions of work where there is a lack of predictability to their work pattern. As with flexible working requests, employers will be required to follow a set process for consideration of requests and will only be able to refuse requests on certain grounds. It is expected that there will be a 26 weeks’ qualifying period to make a request. Further details of the right will be set out in Regulations still to be published.

This right is expected to come into effect in or around September 2024.

As mentioned above (January), a Code of Practice, once finalised, will provide guidance on the new right and there will be new non-statutory guidance too.  

OCTOBER

Worker Protection (Amendment of Equality Act 2010) Act 2023

Expected to come into force in October 2024, this Act introduces a new duty on employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment. It provides for a potential 25% uplift in compensation if employers are found to be in breach of the duty and they could also face enforcement action by the Equality and Human Rights Commission (EHRC). You can read more on these changes and what this means for employers in our article here.

The EHRC is expected to publish a statutory Code of Practice on sexual harassment before the new statutory duty comes into effect.

PENSIONS

APRIL

State pension

The basic (that is, for those who reached state pension age before 6 April 2016) and new state pensions will be uplifted by 8.5%.

Accordingly, the full basic state pension will increase by £13.30 per week from £156.20 to £169.50 per week. The full new state pension will increase by £17.35 per week from £203.85 to £221.20 per week.

This change will be effective from 6 April 2024.

The Office for National Statistics figures indicate that almost a third of working age people do not expect to have any pension provision beyond the state pension when they retire. Therefore the state pension is a safety net for many people.

Some individuals may have insufficient National Insurance contributions to receive the full state pension. Individuals currently have until 5 April 2025 to fill gaps in their NI record from as far back as 2006. After the 2025 deadline, they will only be able to fill gaps from the last six years. Employers may wish to bring this deadline to the attention of their staff.

Abolition of lifetime allowance

In July 2003, the Lifetime Allowance (LTA) charge, levied on benefits crystallised in excess of the LTA, was abolished for the 2023/24 tax year and subsequent years by the Finance (No 2) Act 2023.

By way of background, the LTA was introduced in 2006 as a mechanism for restricting tax-favoured pension savings in registered pension schemes. It was the maximum amount of tax-relievable pension savings an individual could benefit from over the course of their lifetime. Individuals could contribute to their pension over this limit, but they were subject to a tax charge on any amounts above the allowance.  The tax charges were 25% of the excess were a regular pension and 55% of the excess if the excess were a lump sum. The abolition of the LTA arises from the Government’s desire to encourage individuals to remain in or return to work, in particular those aged 50 and above because they should increase an individual’s tax free lump sum entitlements. The retention of the Annual Allowance (and tapering of it for higher earners who are more likely affected by the LTA) restricts the amount an individual can pay into pension schemes each year before they must pay tax and therefore likely dilutes the impact of the abolition of the LTA. There remains a further restriction on tax-favoured pension saving in that individuals can also only receive tax relief on up to 100% of their earnings or £3,600 a year if higher.

The LTA as a whole will be retired from use by the Autumn Finance Bill 2023–24 assuming that Bill becomes the Finance Act 2024. The same Bill proposes that from 6 April 2024 certain lump sums which would previously have been subject to the LTA charge, will instead be subject to two new allowances* on tax free payment, and if exceeding those allowances, taxed like pension income, at the individual’s marginal income-tax rate. Accordingly, pension schemes will have to provide statements to individuals telling them how much of their allowances are used when relevant lump sums and lump sum death benefits are paid. The maximum tax free pension commencement lump sum (which most people appear to opt for when they put their benefits into payment) remains at £268,275 subject to any protections which the individual has in place.

(*Lump sum and death benefit allowance of £1,073,100 and a lump sum allowance of £268,275).

IMMIGRATION

Skilled worker visa changes

Last month, we wrote about the changes announced by the Home Secretary to reduce legal migration figures. These changes are expected to take effect in spring 2024 and for more details see our article here.

Here are some further important changes and updates in relation to family visas for partners of British citizens or settled persons.

There will be incremental increases to the minimum income threshold for spouse or family visas from £18,600 to £29,000 in spring 2024, followed by further increases to £34,500 and then £38,700 at dates to be announced in due course. These increases will mean British citizens or those with settled status who wish to seek to sponsor a spouse, partner or fiancé will face a greater financial barrier than they previously would have. Whilst certain exemptions apply, these applications are particularly complex.

Fines for illegal working

From 22 January 2024, employers who employ illegal migrants face an increase in fines. The current fine of £15,000, which was implemented in 2014, will be tripled to £45,000 per worker for first-time offences. Repeat offences will face a fine of £60,000 per worker. See our earlier article for more details.

UPDATE: Since this was written, the Government has now confirmed that the increases to illegal working civil penalties will be in force from 13 February 2024.

UPCOMING JUDGMENTS AND HEARINGS

We are still waiting for a number of important judgments from appeals heard in 2023 and there will be a hearing at the Supreme Court later this month on the important issue of firing and re-hiring.

HMRC v Professional Game Match Officials Ltd

This is a case relating to employment status. The issue concerns whether PGMOL is liable to make deductions for Income Tax and National Insurance contributions for referees. This is dependent on whether the contracts are to be characterised as contracts of employment or as contracts for services for self-employed referees.

The case was heard by the Supreme Court on 26 June 2023.

Mercer v Alternative Future Group Ltd

Ms Mercer brought a claim under the Trade Union & Labour Relations (Consolidation) Act 1992 (“TULRCA”) which protects workers who participate in industrial action from suffering detriment. She was suspended with normal pay and prevented from attending work or contacting her colleagues after organising strike action. She subsequently lost out on pay for the overtime she would have usually worked.

The Employment Tribunal found against her but the EAT allowed her appeal. However, the Secretary of State for Business and Trade appealed successfully to the Court of Appeal.

The Supreme Court heard Ms Mercer’s appeal on 12-13 December 2023.

Accattatis v Fortuna Group (London) Ltd

Throughout March and April 2020, Mr Accattatis repeatedly asked to work from home or be placed on furlough. His employer explained that neither of these options were feasible. Following his dismissal, Mr Accattatis brought a claim of automatic unfair dismissal under section 100(1)(e) Employment Rights Act 1996 (ERA) that he had been dismissed for taking steps to protect himself from danger.

The Employment Tribunal dismissed the claim. The demands to work from home or to be furloughed were not appropriate steps to protect himself from danger.

Mr Accattatis’ appeal to the Employment Appeal Tribunal was heard on 20 December 2023.

Union of Shop, Distributive and Allied Workers & Ors v Tesco Stores Ltd

UPDATE: Since this article was written it has been confirmed that the Supreme Court will hear the case on 23 and 24 April 2024.

In February 2022, the High Court found in favour of USDAW; that Tesco had fired and re-hired staff on new contracts to remove their entitlement to retained pay. However, in July 2023 the Court of Appeal ruled that the action taken by Tesco had been lawful and allowed Tesco to serve notice on affected employees’ contracts.

USDAW was granted permission to appeal to the Supreme Court, which will hear the case on 25 and 25 January 2024.

OTHER DEVELOPMENTS  

In addition to the developments outlined above, there are some other key topics employers need to aware of.

Whistleblowing review

A review of the legal framework supporting whistleblowers in the workplace is underway. The results of the review were expected in autumn 2023, but there has been no news as yet.

The review offers an opportunity to examine a frequent criticism of the current whistleblowing legislation that it is too complex. For more details of the scope of the review see our earlier article.

The Seafarers’ Wages Act 2023

This Act was initiated in response to the mass redundancies made by P&O Ferries in March 2022. Operators of frequent services (calling at UK ports at least 120 occasions a year) will have to prove that seafarers onboard are paid at a rate no less than the UK National Minimum Wage while in the UK and its territorial waters. Harbour authorities will be required to impose surcharges when relevant operators fail to provide a declaration of National Minimum Wage equivalence or operate a service inconsistent with such a declaration.

These provisions will be included in the Seafarers’ Wages Regulations 2024, which are currently in draft. Consultation on the draft Regulations are in two parts and the second consultation is due to be published in early 2024.

Fire and re-hire

The practice of “fire and rehire” or the technical term, dismissal and re-engagement on new (usually less favourable) terms) has become increasingly controversial over the past few years. Acas published the results of an evidence gathering exercise in summer 2021 as well as updated advice in November 2021.

On 24 January 2023, the Government issued a draft Code of Practice for consultation to address fire and re-hire practices, which was based on the Acas advice. The consultation period ended on 18 April 2023.

The draft Code of Practice sets out employers’ responsibilities when seeking to change employment terms and conditions. If there is the prospect of dismissal and re-engagement, employers are to consult staff and explore alternative options, without using the threat of dismissal to pressure employees to agree new terms.

The Government’s response to the consultation and the final version of the Code of Practice on this important topic will be published in spring 2024.

Artificial Intelligence

Increasing use of AI in HR functions, from recruitment to performance management is inevitable. For some jobs, AI can collect data, store it in one place and extract insights from real-time analysis. AI could also identify areas for learning and development and could remove any human bias that may otherwise exist.

However, employers must be aware of the potential legal risks of using AI, including discrimination claims, a breakdown of mutual trust and confidence, and data protection concerns. Employers can reduce these risks by preparing an AI Workplace policy covering issues such as the permitted uses of AI for business purposes and guidelines for use.

Note that the Government intends to publish a draft AI risk register for consultation and an updated AI regulation roadmap sometime after March 2024.

Economic Crime and Corporate Transparency Act 2023

The Act received Royal Assent on 26 October 2023. It introduces a new offence of a failure to prevent, or have in place reasonable policies and procedures to prevent, fraud by employees or agents. The Act covers failure by a large corporate or partnership to prevent fraud and/or false accounting, including that by false representation, fraudulent trading and cheating the public revenue. It is a strict liability offence, meaning the organisation does not have to be aware of the fraud in order to be liable, but the fraud must have been committed for the organisation’s benefit. Where committed by an associated person, including employees and self-employed or contracted agency workers, the organisation will be liable. Fines for the offence will be unlimited, with the only defence available being having reasonable fraud prevention procedures in place, or by arguing it was reasonable to not have such procedures.

Some of the Act’s provisions are already in force but there is no confirmation of the implementation date for this new offence of failing to prevent fraud.

For more on this new offence and what it means for organisations, you can read our Regulatory team’s article here.

Neonatal Care (Leave and Pay) Act 2023

The Act will introduce a day-one right for employees to take up to 12 weeks leave where a neonate, (a baby who is 28 days old or less) is admitted to hospital for care for seven continuous days or more. It will also introduce an entitlement to statutory neonatal pay where the employee meets service and earnings criteria, which is expected to be 26 weeks of continuous service and the Lower Earnings Limit of £123 per week. The Government originally stated that due to arrangements needing to be made with HMRC and payroll providers the new right would not be in force until April 2025 but it is reported that implementation may be earlier.

General election

The latest announcement by the Prime Minister indicates that the general election will take place in the second half of 2024, although that could change of course.

If the Labour Party is elected, we can expect wide-ranging changes to employment rights. It has announced that it will introduce an Employment Rights Bill within the first 100 days if elected. The proposals include a ban on zero-hours contracts, an end to fire and re-hire, improvements to statutory sick pay and “basic rights” from day-one such as the right not to be unfairly dismissed. It is also likely to repeal some of the trade union legislation introduced by the current Government.

CONCLUSION

Navigating the significant changes to employment, pensions and immigration law in 2024 will require staying informed and being adequately prepared. Employers should ensure they understand these changes, how they will be affected and what they need to do to ensure a smooth transition.

A review and update of a range of HR policies and procedures will be necessary to reflect the legislative changes. In some instances, new policies will need to be drafted, for example, in relation to carer’s leave.

Our first Employment webinar of 2024 will take place in February 2024. Employment partners, Rajiv Joshi and Matthew Smith will be looking at the upcoming changes to holiday entitlement and pay. Details of the date will be included in our invitation which will be sent shortly.