As this rather tumultuous year draws to an end, we inevitably look forward to what 2024 might have in store. Next year is likely to be quite eventful for employment lawyers and HR practitioners. The current government is less preoccupied with keeping the country going through a pandemic, and Brexit now allows for some freedom to amend legislation that originated from European law. Consequently, it will be looking to introduce new legislation that has been on the back burner for a while.
Potential change of government
We also have the prospect of an election. With the government consistently trailing Labour in the opinion polls, it’s anyone’s guess as to when the election might happen – later rather than sooner, in all probability (the latest it could actually take place is 28 January 2025). Nonetheless, it’s worth considering how the landscape might change if the current opinion polls mean that Kier Starmer does indeed become our next Prime Minister.
Let’s focus on the things we know about:
Employers will need to prepare for changes coming to the statutory right to request flexible working. These changes are expected to come into force in July 2024:
When making a formal request, employees will no longer have to explain what effect the change would have on the employer and how any such effect might be dealt with.
- An employee will be able to make two requests in any twelve-month period (currently limited to one request).
- An employer will not be able to refuse a request without consultation (technically possible but not advisable).
- The employer will have to make a decision within two months (currently three months).
- The right to request flexible working will be available from day one of employment (currently an employee has to wait for 26 weeks).
It is therefore advisable to be prepared to amend internal policies and procedures to deal with these changes.
Employers will need to think about how they can protect their staff from sexual harassment at work to comply with new rules expected to be introduced in October 2024. These new rules will:
- Strengthen the existing law by imposing a duty on employers to take reasonable steps to prevent sexual harassment of their employees.
- Give employment tribunals the power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached the new duty to prevent sexual harassment.
A statutory code of practice and guidance is being drawn up to assist employers in implementing processes to comply with this new obligation. Employers should review the code and guidance carefully when published and follow their recommendations.
Holiday Pay and Working Time
Complications regarding the way in which holiday and holiday pay are calculated, for those on irregular pay schemes or those working irregular hours and for part of the year, have exercised the minds of many of us for some years. Brexit allows the government some scope to iron out various anomalies. From 1st January (subject to parliamentary approval):
- Employers will no longer be required to keep records of workers’ daily working hours, as long as they can demonstrate compliance with the Working Time Regulations without doing so. There will still be no explicit obligation on employers to keep records to show compliance with daily or weekly rest periods or rest breaks.
- The right to carry over leave that could not be taken because of the effects of coronavirus will now be removed, although workers will be able to use up such leave until 31 March 2024.
- Changes will be implemented to ensure holiday pay should be equivalent to a worker’s ‘normal remuneration’ (including commissions, bonuses, and some types of overtime), but only in relation to the first 20 days’ holiday, and the remaining UK leave can be paid at basic pay only.
For leave years starting on or after 1 April 2024:
- Employers will be legally entitled to provide a method of holiday accrual for irregular-hours and part-year workers (which may include some agency workers), based on 12.07% of the hours worked in the previous pay period. For workers on sick leave or other family-related leave, accrual will be based on average working hours over a 52-week reference period.
- Terms of employment will be able to permit rolled-up holiday pay for irregular-hours and part-year workers.
These changes will come as some relief to those who have been awaiting an announcement and continuing to pay rolled-up holiday pay in the same way despite the ruling in Harper Trust v Brazel (which confirmed that according to the strict interpretation of the Working Time Regulations, calculating holiday pay at the rate of 12.07% of the hours worked may not satisfy the employee’s entitlement).
Employers will be advised to review their policies and contracts to take advantage of these reforms.
So, what may happen with a new government?
One certainty is change…
If it comes to power, the Labour Party has promised a sea-change of enhancement to workers’ rights in its Green paper “A New Deal for Working People”. This contains many promises of reform and enhancement of workers’ rights, the most eye-catching of which are as follows:
- Banning Zero-Hours contracts
- Improving employment protection and the qualifying period for basic rights at work from day one of employment, including the right not to be unfairly dismissed (currently, an employee has to have two years of employment to bring an unfair dismissal claim).
- Removing any statutory cap on compensation for unfair dismissal.
- Heightening union powers by introducing fair pay agreements and making it easier for unions to gain recognition.
A near-certain prediction
Of course, it’s impossible to predict the future, but it’s clear that the Labour Party would look to significantly enhance workers’ rights. In particular, the proposed changes to unfair dismissal laws would require a significant change in recruitment, management, and dismissal procedures and also likely result in a greatly increased number of claims to the Employment Tribunal, which is already overburdened by the current caseload.
Staying informed of changes
As we approach 2024, staying abreast of crucial information is essential, particularly for HR professionals.
Mike Cole, a Partner and employment law specialist at Penningtons Manches Cooper LLP, is a main contributor to The Surrey & Sussex HR Forum where he holds regular Employment Law Seminars throughout the year, which are FREE for all forum members.
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