3 things you need to know about changes to employment law in 2024

3 things you need to know about changes to employment law in 2024

The Retained EU Law (Revocation and Reform) Act 2023 (Act) confirms that only those laws expressly identified by the Government at the end of 2023 would be revoked. In the short, this means all EU-derived employment law will remain in place (subject to the reforms).

From 1 January 2024, the Act creates uncertainty over the status of EU case law and the way EU-derived law will be interpreted by UK courts.

As part of the reforms, the Government introduced legislation to amend EU-derived law.

(1)  Holiday pay and working time

The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023, came into force on 1 January 2024 and amend the Working Time Regulations 1998, as follows:

• for holiday years starting after 1 April 2024, ‘rolled up’ holiday pay (ie is the practice of including an amount for holiday pay on top of a worker’s normal hourly rate, paid at the time they perform the work, rather than when they are on holiday) is now lawful for part‐year workers or those with irregular hours by providing a standard calculation of 12.07% of pay

• workers are permitted to carry over their statutory holiday (ie 4 weeks) to the following year where they have been unable to take holiday due to family-related leave or where a worker has been unable to take leave due to sickness for a maximum of 18 months. In addition, there will be a right to carry over annual leave if an employer fails to encourage workers to take annual leave or doesn’t give them a reasonable opportunity to take it. This will place a positive duty on employers to ensure workers are given the chance to take holiday

•  ‘normal remuneration’ now includes commission and regular overtime

• the requirement for employers to keep records of all working and rest time has been abolished.

The Government has introduced guidance covering the changes https://www.gov.uk/government/publications/simplifying-holiday-entitlement-and-holiday-pay-calculations/holiday-pay-and-entitlement-reforms-from-1-january-2024?mc_cid=c00bbd4c00&mc_eid=c029591e05

(2)  Equality

The Equality Act 2010 (Amendment) Regulations 2023, came into force on 1 January 2024 and amend the Equality Act 2010, as follows:

• the legislation has been extended to allow claims of indirect discrimination by association (section 19A). Individuals who do not directly have a protected characteristic are now able to claim discrimination where they have suffered similar disadvantages from an employer’s provision, criterion or practice

• the definition of disability (section 6) now accounts for a person’s ability to participate fully in working life on an equal footing with other workers, when considering ‘day to day activities’

• an extension to direct discrimination (section 13) to over a discriminatory statement concerning not wanting to employ a person with a certain protected characteristic, even where there is no recruitment process ongoing

• discrimination on the grounds of breastfeeding is now expressly provided that this is covered by the protected characteristic of sex (section 13)

• the introduction of a ‘single source test’ for establishing an equal pay comparator. This means that a comparator can work for a different business as long as the body responsible for setting the terms is the same.

(3)  Flexible working

The Employment Relations (Flexible Working) Act 2023, will come into force on 6 April 2024 and amend the Flexible Working Regulations 2014 and the Employment Rights Act 1996, as follows:

• employees will no longer need 26 weeks’ service in order to make a flexible working request – it will be a ‘day-1 right’

• employees will be able to make 2 requests for flexible working in any 12-month period instead of 1

• employers will have 2 months (rather than 3 months) to respond and must consult with employees before coming to a decision

• employees will no longer have to explain the impact of their request. The responsibility to consider the impact will fall on the employer.

Employers will still be able to refuse a flexible working request for one of the 6 statutory grounds in the Employment Rights Act 1996.