Key employment law changes to look out for in 2024

In this podcast

Susie Munro and Fiona Cuming, senior legal editors at the Brightmine HR & Compliance Centre, formerly XpertHR tools and resources, discuss the key employment law changes expected to come into force this year and reflect on some important case law decisions from 2023.

Introduction

Robert Shore: Hello, and welcome to the XpertHR podcast. XpertHR is a comprehensive source of leading practice, employment law and benchmarking information for HR professionals, providing solutions and expertise for every HR role, challenge and opportunity. You can find us any time of the day or night at www.xperthr.co.uk.

My name is Robert Shore, and for this edition of the podcast I’m joined by two of my colleagues, Susie Munro and Fiona Cumming, who are senior law editors at XpertHR.

Now, we’ve set ourselves two goals today. The first is to discuss some of the important employment law caselaw highlights of 2023 that employers should be aware of. And then, second, to set out the legislative changes that should be on the radar of every HR department in 2024. There are supporting materials on the XpertHR website and we’ll be putting links to those in the show notes.

So, we’ll be discussing the legislative developments in the second half of the podcast. But before we do that, we’ll start by looking back at some of the most important cases from 2023. Susie, where shall we begin? [0:01:09.9]

Key 2023 Supreme Court cases

Chief Constable of the Police Service of Northern Ireland v Agnew

Susie Munro: Well let’s start with two decisions of the Supreme Court. Firstly, Chief Constable of the Police Service of Northern Ireland and Agnew. So this case is relevant for employment tribunal claims for unlawful deductions from wages, so for example where an employer hasn’t paid the correct holiday pay. And it’s about how far back employees can claim for unlawful deductions.

So the case was brought by police officers and civilian police support staff in Northern Ireland in relation to overtime not being included in their holiday pay. And the Supreme Court held that they could claim for underpayments going back as far as 1998 when the Working Time Regulations actually came in. So there was no limit on how far back they could go. And it held that a gap of more than three months between deductions does not necessarily bring a series to an end.

So this is of particular relevance to Northern Ireland because in England, Scotland and Wales there are regulations that limit claims for unlawful deductions to two years, but those regulations don’t apply in Northern Ireland.

Robert Shore: Right. So this is bad news for employers who historically haven’t calculated their holiday pay correctly. Is that right? [0:02:26.7]

Susie Munro: Yes. So the case overturns a Court of Appeal decision, which is Bear Scotland, and that decision said that a gap of more than three months would break the chain of deductions. So it means that employees can potentially claim for longer periods. So in England, Scotland and Wales it wouldn’t go back as far as 1998 because of the two-year limit but in Northern Ireland, yeah, it could be much longer.

Independent Workers of Great Britain Union v Central Arbitration Committee

Robert Shore: And what’s the second Supreme Court decision we’re going to be looking at? Is this the Deliveroo case? [0:02:59.1]

Susie Munro: Yes. So it’s the Independent Workers Union of Great Britain and the Central Arbitration Committee. So it was about a decision by the Central Arbitration Committee not to accept the union’s application for recognition in relation to Deliveroo. So the issue was basically, ‘Are Deliveroo riders workers and can they rely on the rights under Article 11 of the European Convention of Human Rights which related to the freedom of association, including the right to form and join a trade union?’

So the Supreme Court held that the riders in Deliveroo were not in an employment relationship, so they couldn’t rely on the right to join a trade union. And an important factor in deciding if they were workers was the fact that the riders can appoint a substitute to carry out their duties. And other important factors were that they can decide whether or not to work – so they could choose when to work and when not to work – and they could also work for competitors as well as working for Deliveroo.

So, as with all of these cases, what happens in practice will always be central. You can’t just include a substitution clause in a contract to prevent someone having worker status if that doesn’t reflect the actual relationship.

De Bank Haycocks v ADP RPO UK Ltd

Robert Shore: Yes. Yes, that’s an important point to underline, isn’t it? Now Fiona, please join us. You’re going to look first at one of the decisions that the Employment Tribunal, the EAT, delivered towards the end of the year about redundancy consultation. Can you talk us through it? [0:04:39.4]

Fiona Cumming: Yes, of course. And this is the case of De Bank Haycocks and ADP RPO UK Ltd. Now in brief, Mr De Bank Haycocks was a recruitment consultant with the UK subsidiary of a US parent company and the subsidiary decided to reduce the size of its recruitment team as its business had been affected by the pandemic. Now, the US parent company gave the subsidiary a standard redundancy selection matrix to use, and Mr De Bank Haycocks received the lowest score after that matrix was applied. Following that, he attended two consultation meetings and his role was confirmed as redundant at the final meeting. And he appealed unsuccessfully and then brought a claim of unfair dismissal in the tribunal.

Robert Shore: Right. And the tribunal found that Mr De Bank Haycocks had been fairly dismissed. [0:05:33.4]

Fiona Cumming: Yes, it did. And so he appealed that decision to the EAT. And his main argument was the tribunal had not dealt with the subsidiary’s failure to consult during the formative stage of the redundancy process and that this failure meant that there was, in fact, no meaningful consultation as all the meaningful decisions had been made, even the scoring, by the time that he had had his consultation meetings with the subsidiary.

Robert Shore: Hmm. And what did the EAT then decide? [0:06:03.4]

Fiona Cumming: Well, it broad agreed with him because it overturned the tribunal decision and it held that the dismissal was unfair. The EAT found that the subsidiary should have begun consulting earlier and at a stage when different decisions might have been possible. And this failure to consult at a formative, early stage meant that the employees had not had any opportunity to discuss the prospect of the subsidiary adopting a different approach to any aspect of its redundancy process. And in the EAT’s view, well, there was no good reason why redundancy consultation could not have taken place earlier and at that time.

Now, it also found that the redundancy selection criteria supplied by the parent company had been entirely subjective and that it didn’t necessarily reflect good industrial relations in the UK. Again, that was another reason why consultation should have begun at an earlier stage.

I think also the EAT’s judgement, it’s very helpful to employers because they reviewed all of the caselaw on what amounts to reasonableness in a redundancy situation, and they set out the key principals that should be followed.

Robert Shore: Right. And so what should employers be taking from this
decision? [0:07:22.1]

Fiona Cumming: Well, it’s established that consultation should general occur at the formative stage of redundancy process if there are collective redundancies, but the EAT has now confirmed that this is good industrial relations practice even where there is no obligation to consult with the union or employee representatives.

So basically, redundancy consultation should begin where the outcome of the process can still be influenced by the workforce, as in they can have input. And the failure to consult, as we know, or to consult sufficiently, will usually lead to a finding of unfair dismissal, as in Mr De Bank Haycocks’ case.

And the other key take-away from this judgement is that one size doesn’t really fit all, and subsidiaries of global companies should ensure that they apply a selection criteria that reflects good industrial relations practice in the UK, and a criteria that falls within the band of reasonable responses in the UK.

Charalambous v National Bank of Greece

Robert Shore: Yeah, so perhaps a good tip there for global employers. So, another interesting EAT decision delivered last year is Charalambous and National Bank of Greece. Fiona, tell us about this one, if you would. [0:08:36.5]

Fiona Cumming: Yeah, of course I can. Well, Ms Charalambous worked at the bank’s London office and she emailed the office manager asking for a promotion and a pay rise, and she attached a spreadsheet that contained a breakdown of all the bank’s current private clients, with turnover and other confidential information. Now, she copied in her trade union representative and send a blind copy to her lawyer, and the office manager, when he received the email, told Ms Charalambous that she was suspended pending a disciplinary investigation as she has sent confidential information to her trade union representative, who wasn’t an employee of the bank and was an external recipient.

So Mr Charalambous, she attended an investigative meeting with the office manager. She told them that she’d attached the spreadsheet accidentally as she had been tired. Following that, it then went to the disciplinary side of things, and a different manager held two disciplinary meetings with Ms Charalambous, and by the time of the second meeting that manager had discovered that she’d also sent the email to her lawyer, and indeed had forwarded a copy to her brother who worked at a different bank. So he put all this information into some notes,which he then sent to the office manager, and the office manager decided that Ms Charalambous’s disclosure of that confidential information amounted to gross misconduct, and so she was summarily dismissed.

And after an unsuccessful appeal she brought various claims in the employment tribunal, including one for unfair dismissal.

Robert Shore: Right. And what did the tribunal then decide? [0:10:19.5]

Fiona Cumming: Well, it dismissed her claim because it found that she had been fairly dismissed for gross misconduct, and the case then proceeded to go to the EAT. And Ms Charalambous argued that (before the EAT) that her dismissal was procedurally unfair because a dismissal decision had actually been made by the office manager and not by the manager who had actually held the two disciplinary meetings with her.

Robert Shore: Right. And so was the EAT receptive to this argument? [0:10:49.1]

Fiona Cumming: Well, the EAT said that it was desirable and good practice that a meeting should take place between the employee and the person that actually dismisses them – and indeed, many employers’ disciplinary procedures do require that that should happen – it didn’t accept that a different result must be unfair if such a meeting does not occur. And the EAT said that the dismissal process must be looked at as a whole, including the appeals process, and it agreed with the tribunal that any procedural unfairness in the initial decision to dismiss was sufficiently addressed by the bank’s internal appeal because this was conducted by a more senior manager who’d actually met with Ms Charalambous and he had reached his decision after what the tribunal had found was…he’d carried out a full and careful assessment of the evidence.

Robert Shore: Right, so looking at this case, what are the implications for employers? What should employers be thinking? [0:11:49.2]

Fiona Cumming: Well, it’s a useful reminder that tribunals, when they’re looking at procedural unfairness of a dismissal, they’ll look at the fairness of the disciplinary process as a whole. And while we know, of course, each case will depend on its own facts, the more thorough the internal appeals process the more likely it’s you’ll be able to remedy earlier imperfections in the process.

But of course, the safest course of action for employers is always to have a different individual conducting each of the three fundamental stages of the disciplinary process.

Robert Shore: Right. And just as a reminder, those three fundamental stages are investigation, disciplinary hearing, and right of appeal? [0:12:29.8]

Fiona Cumming: In a nutshell, yes. But I should just add that Ms Charalambous has actually been given leave to appeal the EAT’s decision to the Court of Appeal, and so this may not be the end of the matter.

Annual leave

Robert Shore: Right. Let’s turn our attention now to the employment law developments that we know are coming up throughout 2024 and which HR should be preparing for. We’re going to go through these chronologically, and we’re starting with annual leave. Susie, there are a number of different developments, aren’t there? [0:13:00.7]

Working Time Regulations amendments

Susie Munro: Yes. So we’re going to start with something that’s actually already in force. So there were some regulations that came into force on 1 January amending the Working Time Regulations, and they really just confirm what employers should already have been doing following previous EU caselaw.

So the general rule under the Working Time Regulations is that you can’t carry over four weeks of statutory annual leave and then employers can agree that a maximum of 1.6 weeks can be carried over. So we’re talking about the difference between the four weeks of annual leave that was originally derived from EU law, and then the additional 1.6 weeks under the Working Time Regulations.

So caselaw has previously addressed the situations where employees haven’t been able to use up all of their annual leave because they’ve been on maternity leave or sick leave, for example. So the Working Time Regulations now confirm the position from previous caselaw.

Robert Shore: Right. So to clarify, can employees, if they haven’t been able to take it, now carry over all of their leave? [0:14:09.7]

Susie Munro: So we’ve still got a slight difference between the four weeks of annual leave and the additional 1.6 weeks of annual leave. So it depends on the reasons why they haven’t been able to take their holiday as to how much they can carry over. So for family leave – so maternity leave, adoption leave, shared parental leave – if somebody hasn’t been able to take their holiday for those reasons, they can carry over 5.6 weeks into the following leave year. But if you’ve been on sickness absence and that’s the reason why you haven’t been able to take your holiday it’s just the four weeks that you can carry over, and you have to take it within eighteen months of the end of the leave year in which it
was due.

And these regulations also cover the carry-over of holiday where it hasn’t been taken because of a failure on the employer’s part. So this could be where the employer doesn’t recognise the worker’s right to annual leave or to payment for their holiday, for example, where they’ve been wrongly categorized as not being a worker. And then similarly, if the employer has failed to give the worker a reasonable opportunity to take their holiday or they’ve failed to encourage them to do so, or where they have failed to inform the worker that the leave will be lost if it’s not taken by the end of the leave year. So in all of those situations where it’s a failure by the employer, then it’s the four weeks that you can carry over, and it can be carried over for as long as the failure continues. So it can carry over into multiple subsequent years.

Robert Shore: Right. So is this something employers should already be doing? That is, ensuring that employees take their annual leave. [0:15:52.8]

Susie Munro: Well, it’s not been set out in legislation before but these are all obligations that have derived from European caselaw. But yes, it’s now clear that employers should monitor their employees’ takeup of holiday, and they should be doing things like sending out reminder emails encouraging employees to take their leave, and also you need to make sure that line managers are on board with this and that they are giving employees the opportunity to actually take their full holiday entitlement, otherwise you could end up with a big payment being due, payment in lieu for holiday on termination of employment if holiday has just been carrying over year on year.

Holiday entitlement

Robert Shore: Right. Let’s move forward into April. April is going to be a very busy month for changes. There are some more holiday-related developments taking effect then, I think? [0:16:41.7]

Susie Munro: Yes. So we’re looking now at changes relating to holiday entitlement for irregular hours and part-year workers. Again, these are changes that were brought in by the regulations that are enforced from 1 January, but these changes only apply for holiday years beginning on or after 1 April, changes in relation to irregular and part-year workers.

Robert Shore: So that means, then, that if your leave year runs January to January, these changes won’t apply until January next year, that is 2025? [0:17:16.1]

Susie Munro: Yes, that’s right. So if your leave year began on 1 January, or if it begins on any date before 1 April this year, for this leave year then you can just carry on doing things as you have done previously. This is only in place for leave years beginning on or after 1 April.

Robert Shore: So you mentioned there irregular hours and part-year workers. Is there a nice, straightforward definition of those workers? [0:17:40.2]

Susie Munro: Sadly no, not really. There are definitions included in the regulations but they’re not necessarily straightforward. But the first thing for employers to do is to look at the definitions and to decide whether they have – or if they might have during the leave year – any workers who fit the definition of either an irregular hours worker or part-year worker. And that’s based on the contracts that you have with them. And these are completely new definitions. It’s not something that employers have had to deal with before. I’m not going to go into the detail of what the definitions are but the Government has just published some guidance which covers this, so that would be a good place to start, as well as actually looking at the definitions in the legislation.

Robert Shore: Right. So you need to look at the guidance definitions, and then if you have workers who fit the definitions, what’s changing? [0:18:29.1]

Susie Munro: So, there’s a new way of calculating holiday entitlement for these workers, rather than just saying that they’re entitled to 5.6 weeks a year. And this is in response to the 2022 Supreme Court decision in Harper Trust and Brazel, which held that the 5.6 weeks couldn’t be pro-rated for employees who didn’t work for the
whole year.

So, under the new method it’s an accrual method, so these employees will accrue annual leave throughout the year based on 12.07% of the hours that they work in the pay period. And they can accrue a maximum of 18 days. So the drafting in the legislation is a bit confusing, as you won’t necessarily know what 28 days means when it comes to irregular hours workers because you have to work out how many hours make up one day to know what 28 days actually means in terms of hours. So it’s a bit confusing. It’s not clear from the actual legislation. So that is something that employers will be again looking for further guidance on.

Robert Shore: And there is another change, though, isn’t there? And this is rolled-up holiday pay, which is optional for employers to introduce. [0:19:41.5]

Susie Munro: Yes. So again this is for leave years beginning on or after 1 April. Employers can choose to introduce rolled-up holiday pay, but again it only applies to those who fit the definitions of irregular hours or part-year workers. You can’t choose to roll up holiday pay for any other workers.

So rolled-up holiday pay means that the employer pays an additional amount for holiday pay along with the employee’s basic pay, so instead of making a payment at the time the holiday is taken. And that, the additional amount is calculated at 12.07% of the worker’s earnings during the paid period. And previously, rolled-up holiday was held by the European Court to be unlawful as it can deter workers from taking time off because they’re not actually paid at the time that they take the holiday. But the Government has decided to allow it, as it could make administration of holiday a bit easier for employers with irregular workers.

Robert Shore: Thinking in practical terms, what can employers do to prepare for these changes? [0:20:50.6]

Susie Munro: So, as well as identifying all of their workers that will be covered by this, employers need to make sure that they’ve got a process in place for allowing these workers to actually book off the leave as it accrues. And they should consider if they’re going to allow workers to take the leave before it’s accrued, and if they’re not going to do that then you need to think about how you’re going to deal with accrued but untaken leave at the end of the year. So for the leave that is accruing in the final pay period. If they can’t take it before it’s accrued, when are they actually going to be able to take it?

Also, employers might choose to roll up holiday pay but, like you say, it’s not compulsory. That’s just a decision that employers need to make to decide whether or not they’re going to roll up holiday pay for their irregular and part-year workers.

National Minimum Wage

Robert Shore: Right. And of course we also have the new National Minimum Wage rates for 2024. Fiona, can you tell us about those? [0:21:51.5]

Fiona Cumming: I can. So they’ll come in on 1 April as usual. I’m not going to go through all the rates because I just want to flag up one big change, and that’s that the age threshold for the National Living Wage (and that’s the top rate of the National Minimum Wage) is, as of now, lowered from age 23 to apply to all workers aged 21 and over. So this means that from April this year the National Living Wage hourly rate for workers aged 21 or over is £11.44. And according to the Treasury, this means that 21-year-olds are actually going to be getting a 21.4% increase this year, amounting if they’re a full-time worker to almost £2,300 a year.

Robert Shore: Right. So that could be quite significant. So employers will need to ensure that all their workers who are aged 21 and over by 1 April 2024 receive the National Living Wage. [0:22:48.6]

Fiona Cumming: Absolutely. They need to keep an eye on the ages of their employees and their birthdays very carefully.

Carer’s leave

Robert Shore: Right. Now also in April we’ve got the new statutory right to carer’s leave coming in. Susie, can you tell us about that? [0:23:03.5]

Susie Munro: Yes. So this is the right to take one week per year, but it’s unpaid leave. And we’re expecting this to come into force on 6 April this year, assuming that the regulations pass through Parliament, which we expect them to do.

So these regulations define a carer as “someone who has a dependent with a long-term care need”, and carer’s leave has to be taken to provide or arrange care for that dependent. So like I said, it’s just one week every twelve months, and you can either choose to take it all in one go – so to take a full week’s leave – or you can take it in separate chunks. The minimum period you can take in one go is half a working day. And the regulations set out things like the notice requirements that employees have to give to take leave. But importantly, employers can’t require someone to supply evidence of their entitlement. So that does make the process much simpler than it could have been. You won’t have to go into checking that somebody is actually a carer within the definition.

So basically, what employers need to do now is just to make sure that their managers are aware that this is coming in and that they are ready to deal with these requests if they do start coming in from April.

Right to request flexible working

Robert Shore: Also in April we see some changes to the right to request flexible working. Fiona, tell us what’s happening here, please. [0:24:30.2]

Fiona Cumming: Yeah, of course. Well, these changes are contained in the Employment Relations Flexible Working Act 2023, and as with the other changes they’ve become effective via secondary legislation too. Now, we’ve had the first set of regulations which come to the fore on 6 April, and these make the right to request flexible working a Day One right, so there’s no longer any requirement for any period of continuous service. As we know, it’s currently 26 weeks but it will be a Day One right now.

Robert Shore: Right. And just to be clear, the right is the right to request to work flexibly and not an automatic right actually to work flexibly? [0:25:09.1]

Fiona Cumming: That’s absolutely right. And the existing statutory grounds that an employer has for refusing a flexible working request, they remain unchanged. But of course, it’s important to remember that while an application under the right to request flexible working procedure can be refused for one of those specified reasons, a refusal to grant a request for flexible working can lead to liability under the discrimination legislation.

Robert Shore: Of course. And on the right to request flexible working, what are the other changes? [0:25:42.7]

Fiona Cumming: Well, there are four other ones and two of them concern what an employer must do, and the other two changes make the process really easier for an employee.

So, from the employer’s perspective they’re going to be required to consult with an employee before they reject their flexible working request. And they will also have to respond to a flexible working request within two months rather than the current three months.

And so for the employee, currently when they make a flexible working request they have to explain what effect, if any, they think the change applied for would have on the employer and how they think that effect might be dealt with. Well, this goes out the window now. They no longer need to do this.

And they’re also going to be able to make two flexible working requests in any twelve-month period, rather than the current one. And it seems that the regulations concerning these changes, well they should emerge soon, and it’s anticipated that they will be coming into force at the same time as the Day One rights on 6 April.

Fiona Cumming: Yes, and it’s promised that this should be this month. So look out for that. And also, following consultation last year, ACAS is going to be updating its Code of Practice on handling flexible working requests. So that’s something else to look out for too because that’ll give us good guidance on what amounts to consultation with an employee and the other changes as well.

Robert Shore: What should employers be doing in the interim before these changes come into force? [0:27:19.7]

Fiona Cumming: Well, it’s absolutely vital that employers review their policies to ensure that they do, in fact, incorporate all of these changes. Employers should check that their managers are trained and skilled in handling flexible working requests and that they can respond to them in a timely manner. And also that genuine consideration is given to any request, and the focus that they take is actually looking at how they can make the request work, rather than rejecting it out of hand because, say, that post has never been undertaken flexibly.

And it might also be a good time for employers to take stock and review actually how flexible working is operating within their organisation, and also ensuring that those who do work flexibly are treated fairly and that they’ve got absolutely the same access to training, development and progression as other employees.

Immigration

Robert Shore: Yes. All really important points, I think. So next, let’s have a quick look at some changes relating to immigration. [9:28:21.8]

Susie Munro: Yes. So we’re not going to go into too much detail. It’s really just to flag that this an area that employers might want to focus on at the start of the year, and in particular employers that sponsor skilled workers will no doubt be aware of changes due in April, including that the salary threshold for skilled workers is due to increase from £26,200 to £38,700. There are some exceptions but that is a significant increase.

Robert Shore: Right, so obviously this is an area that is the focus of a number of Government announcements as it tries to reduce net migration levels. So obviously affected employers need to keep on top of those announcements, don’t they? [0:29:06.5]

Susie Munro: Yes. They need to keep an eye for further announcements. The key message is really to plan ahead now if that is at all possible. Employers might want to finalise the process of recruiting foreign workers before the changes take effect.

And just one other thing to mention. From 22 January the financial penalties for employing a worker who doesn’t have the right to work in the UK are going to be increasing. So employers shouldn’t have been taking this lightly before, but the financial penalties for getting it wrong are now going to be even higher. So the penalty for a first breach will increase from £15,000 to £45,000 per worker, and the penalty for repeat breaches will increase from £20,000 to £60,000 per worker.

Robert Shore: Right, so that’s really just a reminder to make sure that your processes are all in place and complaint for checking candidates’ right to work? [0:30:02.03]

Susie Munro: Yes. So hopefully it’s not news to anyone listening but right-to-work checks are important. You do have to get them right.

Enhance redundancy protection for pregnant employees

Robert Shore: So, also coming up in April is enhanced redundancy protection for pregnant employees. Fiona, can you tell us about this? [9:30:17.8]

Fiona Cumming: Well, currently employees on maternity, shared parental leave or adoption leave have the right to be offered a suitable alternative vacancy if one is available before being made redundant. Now, this means that these employees are effectively at the top of a queue when it comes to alternative employment opportunities in a redundancy situation. And the change that’s coming in here from 6 April is that this protection is now going to extend to pregnant employees and those who have recently returned from maternity leave, shared or parental leave or adoption leave.

Robert Shore: Right. And the Government has published regulations that introduce this new right? [0:30:59.0]

Fiona Cumming: Yes, it has indeed. So for pregnant employees the enhanced redundancy protection, well it’s going to start when they notify their employer of their pregnancy, and then it’s going to continue for a period of eighteen months after the child’s date of birth, or if the employee has not told the employer the date of birth, the first day of the expected week of childbirth. So it’s going to last for a much longer period.

Robert Shore: Right. And I suppose employers contemplating a restructure or perhaps in need of starting a redundancy process later this year will need to take the priority status of these employees into account when it comes to alternative employment or redeployment opportunities? [0:31:38.9]

Fiona Cumming: Yes, it’s essential that they do that. Also, there is actually going to be some guidance. The Government’s going to be producing some guidance before the new right takes effect, so keep an eye out for that as well.

TUPE compliance

Robert Shore: Right. And we’ve not talked about TUPE yet. And so Susie, do talk to us about some changes relating to consultation due in those situations. [0:32:03.8]

Susie Munro: Yep. So again this is from the regulations that came into force on 1 January, but this part only affects transfers that occur on or after 1 July. So generally, you have to elect employee representatives to consult on a TUPE transfer if there isn’t already a union or existing representatives in place. There are current exemptions for micro-businesses (that’s those with fewer than to employees), and those employers can consult directly with those employees. But for transfers from 1 July, employers will also be able to consult directly with employees if they’ve got fewer than 50 employers (so small businesses) or for organisations of any size if fewer than 10 employees are going to transfer.

Robert Shore: Right. So in summary, employers still have a duty to consult employees but they won’t need to hold elections for representatives if they don’t already have representatives in place? [0:33:03.6]

Susie Munro: That’s right. They still have to consult but it can be direct with employees. They can actually still choose to hold elections if they want to, but in theory there’s less administration for employers in that they don’t have to hold the elections and elect representatives. But there is an argument that if you’re going to consult properly it could be more work to have to deal individually with each employee rather than going through representatives, and the consultation could be less effective doing it that way. But it is now an option for employers. They can now decide how they want to approach consultation, if they’re covered by that – if they are a small business or if fewer than 10 employees are transferring.

The right to predictable terms and conditions

Robert Shore: Another change about working hours concerns the new law on predictable terms. Fiona, what’s that aimed at doing? [0-:33:52.9]

Fiona Cumming: Well, the Government said in its press release announcing this change that it would give millions more power over their working lives. I think there was just a little bit of hyperbole in that because, as with the right to request flexible working, the Government is bringing in a right for workers to request a more predictable work pattern and not an automatic work to be given one. And here the right is, you know, for workers such as agency or zero-hour contract workers.

Robert Shore: Right. And this change is contained in the Workers’ Predictable Terms and Conditions Act 2023, I think? [0:34:28.5]

Fiona Cumming: Yes it is. But as with all the others, it’s going to be brought into force via regulations and we’re still waiting for them. And these regulations will give us further detail about how it will all work in practice, including the eligibility criteria. It’s probably likely to be similar to the right to request flexible working, as there will be specified reasons for rejecting a request to have a predictable work pattern. But we’ll know more when the regulations appear.

Also, ACAS will be publishing a new statutory Code of Practice on handling requests, and this will be published later this year. They’re consulting on it at the moment. And that Code will be accompanied by non-statutory guidance on the principals set out in the Code.

Robert Shore: Right. It’s likely, then, that this change will come later rather than sooner this year? [0:35:20.1]

Fiona Cumming: Yes. Because, well the Government said that it expected the right to come in around one year after the Act received Royal Assent, and that happened in September last year. So I guess we’re looking at around September, or autumn anyway.

Protections against sexual harassment

Robert Shore: Right. Now we come to change regarding protection against sexual harassment. This has been slightly watered down during the Parliamentary process. Initially there was a suggestion there would be employer liability for third-party harassment of employees and this was removed. [0:35:48.3]

Fiona Cumming: Yes, that’s right. So the change that is coming in now later this year – this one in October, so autumn too – is that employers will have a positive duty to take reasonable steps to prevent sexual harassment of their employees in the course of their employment. Now, that was initially going to be all reasonable steps, but the word ‘all’ was removed at the Parliamentary stage, as there was concern that that implied a limitless number of steps that would be too big an onus for employers, and as we said, the third-party liability you said was also removed.

However, what’s coming in, although the impact isn’t as big as we thought it would be, employers must not ignore the new duty because it does oblige them to act proactively and preventatively. And where a claim of sexual harassment is upheld, tribunals will have the power to increase the award that it makes to the employee by up to 25% where they find the employer has reached this duty. So employers should, in the interim, review their anti-harassment policies, ensure they’re compliant with the new duty, review and update their anti-harassment training, and just check that line managers are all up-to-speed on this change and will be able to handle things effectively.

Robert Shore: Right. And the Equality and Human Rights Commission is going to be publishing a new statutory Code of Practice which should make it clearer what is required by those reasonable steps? [0:37:21.7]

Fiona Cumming: Yeah, and that will be very helpful for that to happen. So yes, that’s another thing to look out for this year as well, this Code.

Robert Shore: Well, there we go. We’ve taken a quick ride through important caselaw from last year and important changes that we can expect this year. I hope that’s been helpful. All that remains is for me to thank Fiona and Susie, and to point listeners to the supporting materials on our website. There are, of course, links in the show notes. And finally to say, until next time.