Wed 03 Apr 2024

Employment law reform timeline

This blog sets out the key legislative and case law decisions expected in 2024 and beyond and will be regularly updated throughout the year.  

EARLY 2024

Holiday leave and pay, TUPE and the Working Time reporting obligations

The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 address calculation of holiday pay for irregular hours and part year workers, change TUPE consultation requirements for small businesses (with fewer than 50 employees) and businesses of any size where the transfer is of fewer than 10 employees); and reduce some reporting requirements under the Working Time Regulations. The TUPE provisions will apply to TUPE transfers on or after 1 July.  Some of the provisions relating to holidays will only apply to leave years beginning on or after 1 April.

Equality Act Amendments

The Equality Act 2010 (Amendment) Regulations 2023 reproduce EU derived discrimination protections that might have otherwise fallen away at the end of 2023.  These cover direct discrimination related to pregnancy, maternity and breastfeeding; particular aspects of both direct and indirect discrimination and equal pay; and the definition of disability.

Immigration

February saw a number of significant changes to immigration law.  This includes penalties for employing illegal workers tripling and changes aimed at reducing the use of Skilled Worker visas.

The Strikes (Minimum Service Levels) Act 2023

The first Regulations bringing into effect minimum service levels ("MSLs") during strikes that employers can impose on trade unions and workers in certain "relevant services" came into force in December 2023.  These provide for MSLs for passenger railway services, NHS ambulance and patient transport services, and border security services. Regulations providing for MSL's for fire and rescue services followed in March 2024. Further consultations have been announced and more regulations may follow in due course.  The Labour party have confirmed they will repeal this legislation should they win the next general election. 

SPRING 2024

National living and national minimum wage

As of 1 April:

  • NLW (for those aged 21 and over) increased to £11.44 per hour
  • NMW (for those aged 18 to 20) increased to £8.60 per hour
  • NMW (for those aged under 18, but at least of school leaving age, and apprentices aged under 19 or in the first year of their apprenticeship) increased to £6.40 per hour

Note that the age threshold for the NLW has been lowered to apply to workers aged 21 and over, rather than those aged 23 and over.

Statutory benefits

Statutory sick pay increased from £109.40 to £116.75 per week from 6 April. Statutory maternity, paternity, shared parental and adoption pay increased from £172.48 to £184.03 per week from 7 April.

Tribunal compensation

The annual Employment Tribunal award limit changes apply to dismissals occurring on or after 6 April 2024. The limit on the compensatory award for unfair dismissal rose from £105,707 to £115,115.

The cap on the compensatory award is the lower of (1) the compensatory award limit or (2) 52 weeks' pay (based on a claimant's gross salary prior to dismissal including employer pension contribution but excluding benefits in kind and discretionary bonus).  There are a limited number of exceptions where the cap does not apply. These are dismissals for whistleblowing or for raising certain health and safety issues. In addition, there is no limit to the award that can be made where a dismissal is related to unlawful discrimination.

The limit on a week's pay (used for calculating statutory redundancy payments and the basic award for unfair dismissal) increased from £643 to £700 meaning that the maximum basic award and maximum statutory redundancy payment increased to £21,000.

Guidelines for injury to feelings awards

An award for injury to feelings is made to compensate for injury to feelings caused by discrimination. The award is separate from an award to compensate for financial loss and can be made even where no financial loss has been suffered.  To assist Employment Tribunals, the Court of Appeal previously set out guidance for quantifying awards for injury to feelings, known as the Vento bands. For claims presented on or after 6 April 2024 the bands are as follows:

  • Lower band (less serious cases): £1,200 to £11,700 (increasing from £1,100 to £11,200);
  • Middle band (for cases that do not merit an award in the upper band): £11,700 to £35,200 (increasing from £11,200 to £33,700);
  • Upper band (most serious cases): £35,200 to £58,700 (increasing from £33,700 to £56,200).

Awards in excess of £58,700 will only be made in the most exceptional cases.

The bands are reviewed annually and any increases for 2025/26 are likely to be announced in March 2025 and will apply to claims presented on or after 6 April 2025.

Gender pay gap reporting

30 March saw the gender pay gap reporting deadline for public sector employers (using 31 March 2023 as a snapshot date).

4 April saw the gender pay gap reporting deadline for private companies and voluntary organisations with 250 or more staff, using a snapshot date of 5 April 2023.  

Carer's leave

The right to take carer’s leave came into force on 6 April.  This introduces a flexible entitlement to up to one week's unpaid leave for employees providing or arranging care for a dependent with a long-term care need.

Day 1 right to request flexible working/changes to requests procedure

Both the right to request flexible working as a day 1 right and changes to the procedure for making flexible working requests took effect from 6 April.  The changes to the procedures included employees being able to make 2 (instead of 1) requests in any 12 month period, employers having 2 (not 3) months to deal with the request, employers being unable to refuse a request without first consulting with the employee and the employee no longer having to explain the effect agreeing with their request will have on the employers business, and how that might be dealt with.

Protection from redundancy for pregnant women and new parents

April 6 also saw the extension of protection from redundancy for pregnant women and new parents coming into force. The Regulations bringing the new rights into force confirm the "protected period" includes pregnancy (for birth cases) and a period of up to 18 months following the birth or placement for adoption of a child. Similar rules apply for shared parental leave ("SPL") dependant on a minimum of 6 continuous weeks of SPL being taken. Eligibility for all the extended rights depend on the date of notification of pregnancy, the date of the end of maternity or adoption leave and the date of the start of SPL all being on or after 6 April 2024.

Changes to paternity leave

Changes to paternity leave took effect for leave following a birth where the expected date of childbirth was on or after 7 April 2024; and for leave following adoption where the actual date of placement was on or after 6 April 2024.  Paternity leave is to become more flexible allowing eligible employees to take the leave in two separate blocks of a week and at any time during the first 12 months following birth or adoption.  Notice provisions are also to be changed to aid the flexibility.  

LATER IN 2024 AND BEYOND

Statutory code on dismissal and re-engagement

An updated draft Code of Practice on Dismissal and Re-engagement was published in February and, subject to approval by both Houses of Parliament, is expected to come into effect on 1 July 2024. Its purpose is to ensure employers take all reasonable steps to explore alternatives to dismissal and re-engagement and engage in meaningful consultation.  Where the Code applies to a claim brought before a tribunal then the tribunal can increase or reduce any award it makes by up to 25% if the employer or employee (respectively) unreasonably fail to comply with it.  For more on this see Fire and Rehire Code Update.

Allocation of tips

New rules requiring employers to ensure that all qualifying tips are "allocated fairly" between workers and within a set timescale are expected to come fully into force on 1 October 2024.  The Employment (Allocation of Tips) Act 2023 also require employers with businesses where tips are paid on a more than occasional and exceptional basis to have a written policy on how it deals with tips. The Act will now come into force concurrently with an updated Code of Practice on Fair and Transparent Distribution of Tips that employers must have regard to when distributing tips. The Code is currently in draft form awaiting approval by both Houses of Parliament.

Right to request a more predictable working pattern

The Workers (Predictable Terms and Conditions) Act 2023 provides a statutory right for eligible workers and agency workers to request a predictable working pattern.  The right to request is modelled on the existing flexible working regime and has a 26 week service requirement.  It is expected to come into force in September 2024.

Duty on employers to take reasonable steps to prevent sexual harassment in the workplace

The Worker Protection (Amendment of Equality Act 2010) Act 2023 will take effect in October 2024.  It introduces a duty on employers to take reasonable steps to prevent sexual harassment in the workplace.  Where a complaint of sexual harassment is made to an employment tribunal, and it is found that the employer has breached the duty compensation may be uplifted by up to 25%.

Neonatal leave and pay

The Neonatal Care (Leave and Pay) Act 2023 introduces a right to up to 12 weeks of leave for parents of children receiving neonatal care.  The leave will be paid if parents meet qualifying criteria.  The right will come into force in April 2025.

Post termination non-compete clauses restriction

It was announced by the UK Government in May 2023 that post termination non-compete restrictions are to be limited to three months.  However, as the current timescale for implementation is "when parliamentary time allows" it remains to be seen whether this proposal will be progressed before the next general election.

Misuse of non-disclosure agreements

"As soon as parliamentary time allows" is the timescale for implementation of legislation to ensure Non-Disclosure Agreements (NDAs) cannot be legally enforced if they prevent victims from reporting a crime. Legislation will ensure that information relating to criminal conduct will be able to be discussed with:-

  • Police or other bodies that investigate or prosecute crime;
  • Qualified and regulated lawyers; and
  • Other support services that operate under confidentiality principals such as counsellors, advocacy services or medical professionals.

Replacing striking employees with agency workers

After the quashing of Regulations intended to allow the use of agency workers to cover the roles of striking workers due to a lack of consultation, a consultation on exactly that point was published at the end of 2023.  While this suggests an intention to re-introduce similar regulations, further challenges by the unions and a potential change of UK Government following the next general election, mean this may never happen.

Pensions auto-enrolment

Major changes are to be introduced to widen the age and earnings scope of automatic enrolment over the next 2 to 3 years.  The Pensions (Extension of Automatic Enrolment) Act 2023 provides for the abolition of the lower earnings limit threshold as it applies to automatic enrolment and the reduction of the eligibility age for being automatically enrolled into a qualifying workplace pension scheme from twenty two to eighteen.  A phased implementation is expected.

KEY CASES FOR 2024

Where we have covered these cases in the past, more details on the facts and the judgments that have been appealed can be obtained by clicking on the links below.

There are a number of high profile cases due to be heard in 2024, most notably:-

Union of Shop, Distributive and Allied Workers & Ors v Tesco Stores Ltd is due to be heard by the Supreme Court on 24 & 25 January.  The High Court had granted an injunction that prevented Tesco from terminating and then re-engaging warehouse operatives which they were doing as a way of removing a permanent contractual entitlement to enhanced pay.  The Court of Appeal allowed an appeal against that decision, overturning the injunction. 

Hope v British Medical Association is due to be heard by the Court of Appeal on a date yet to be fixed.  It is an appeal against a finding that a claimant was fairly dismissed for bringing numerous vexatious grievances and then refusing to attend a grievance hearing.  Our summary of the EAT judgment is available here.

UPDATE - it is understood this case has settled and the appeal will not be proceeding, leaving the EAT judgment as the final word on the matter.

An appeal to the EAT has also been lodged in the case of Bailey v Stonewall Equality Ltd.  Ms Bailey's high profile claim that she had been discriminated against due to her gender critical beliefs was successful against the barristers' chambers where she worked, Garden Court, but her related claim that Stonewall Equality Ltd ("Stonewall") had instructed or induced the discrimination by Garden Court was dismissed.  It is the dismissal of the claim against Stonewall that is being appealed.   The appeal is due to be heard in May 2024.

Although we do not usually highlight cases that are yet to be heard by an Employment Tribunal, the case of Manjang v Uber Eats UK Ltd and others and Raja v Uber are likely to receive significant press coverage.  Both of these cases allege that Uber's use of a facial recognition system to verify the identity of drivers is indirectly racially discriminatory.  Both claimants are being supported by their unions.

UPDATE - it is understood both cases have settled prior to being heard in tribunal

During the course of 2024 we should also see judgments handed down in relation to a number of cases of interest that were heard in 2023.  These include:-

Joseph de Banks Haycocks v ADP RPO UK Ltd was heard by the Employment Appeal Tribunal in 2023. The case concerned the absence of consultation at a formative stage of a redundancy process.  Although the redundancy did not trigger collective consultation requirements, the EAT held there was no indication in the ET judgment that there were good reasons not to have undertaken what it described as "general workforce consultation".  The absence of that consultation was sufficient to make the dismissal unfair.

UPDATE - an appeal against the judgment of the EAT is to be heard in the Court of Appeal in March 2025.

Mercer v Alternative Future Group Ltd and another was heard by the Supreme Court on 12 & 13 December 2023.  The case concerns the extent of protection from detriment short of dismissal for employees taking part in or organising strike action that is available under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992.

UPDATE - the Supreme Court found that s146 TULR(C)A does not protect workers who take part in strikes during working hours from detriment short of dismissal, because s146 only covers industrial action taking place outside of working hours.   This omission renders UK Law incompatible with Article 11 (right to freedom of association) of the European Convention on Human Rights.

Bathgate v Technip UK Ltd was heard in the Court of Session on 23 November 2023 and concerns whether a qualifying settlement agreement can settle future discrimination claims unknown to the parties at the time of entering into the agreement.

UPDATE - The Court of Session, overturning the EAT judgment, held that a settlement agreement can validly compromise a future complaint under the Equality Act 2010 if there is a sufficient description of it in the claims waived.  The Courts view was that the requirement for a valid settlement to relate to a "particular complaint" did not mean the complaint must have been known of or its grounds be in existence at the time the settlement agreement was entered into.  It just requires the complaint that is subsequently made to be covered by the terms of the contract between the parties.

HMRC v Professional Game Match Officials Ltd ("PGMOL") is a tax case, but of some interest due to its subject being that of employment status.  The Supreme Court heard the case on 26 & 27 June 2023. The case is an appeal against a decision that certain football referees were not employees of PGMOL, and the judgment is awaited.

The EAT judgment in the case of McClung v Doosan Babcock Ltd & Others that concerned whether supporting a football team amounts to a protected philosophical belief under the Equality Act 2010 is also awaited

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