Spring Clean Your Employment Policies

The first of April is synonymous with April Fools’ Day ? and this year, the date will also be anticipated by many as the first day of British Summer Time. However for UK employers, 1 April 2024 also marks?the beginning of a month in which a number of employment law changes come into effect. These laws will impact workers across all sectors irrespective of the employer’s size or industry.

It is essential that employers are aware of these employment law changes and are ready for the impact on their current policies and practices. To assist, we have set out reminders of the key forthcoming changes and the actions that employers should now be taking.

Amendments to Family Leave and New Carer’s Leave

Paternity Leave Amendment Regulations 2024

8 March 2024

The Paternity Leave Amendment Regulations 2024 will come into force on 8 March 2024. Note, however, the regulations apply to all cases where the child is born or adopted on or after 6 April 2024.

The paternity regulation amendments will allow greater flexibility in how paternity leave may be taken. The key points are as follows:

• The two weeks of paternity leave can be split into two separate blocks of one-week leave (rather than one consecutive block of one or two weeks’ leave).
• Paternity leave can be taken at any point in the first 52 weeks following the child’s birth or adoption (rather than in the first eight weeks following the child’s birth or adoption).??
• The notice period required for each period of paternity leave will be reduced from the current 15 weeks’ notice to 28 days (four weeks).

??Actions required:

• Update current paternity leave and pay policy to reflect the new changes.
• Review systems to support and accommodate requests for paternity leave with reduced notice.
• Inform employees of the changes to paternity leave and the updated policy.
• Remind employees of what other leave may be available for those with family caring obligations, i.e. dependent care leave and parental leave.
• Prepare to accommodate paternity leave requests of two weeks at shorter notice given the reduced notice period.

?Carer’s Leave Act 2023

6 April 2024

From 6 April 2024, employees will have a statutory right to one week (five working days) unpaid carer's leave in each rolling 12-month period to care for a dependant with a long-term care need.

• Carer’s leave is a day one right and there is no minimum service requirement before an employee can request a period of leave.
• Carer’s leave will apply to employees and is intended to allow the individual to provide or arrange care for a dependant with a long-term care need.
• The definition of “dependant” includes a spouse, civil partner, child, parent, a person who lives in the same household as the employee (other than by reason of them being their employee, tenant, lodger or boarder) or the wider catch-all provision of a person who reasonably relies on the employee for care.
• “Long-term care” is defined as illness or injury (physical or mental) that requires or is likely to require care for more than three months, a disability under the Equality Act 2010 or issues related to old age.
• The leave may be taken in either individual days or half days, up to a block of one week. There is no requirement to use the leave on consecutive days.
• The required notice period (which does not need to be in writing) is either twice as many days as the period of leave required or three days, whichever is the greater.
• An employer cannot require evidence before granting the leave but may request an employee to self-certify that they meet the legal definition of a carer and will be using the leave to provide care or make arrangements for the provision of care for a dependant.
• Employees are entitled to return to the same job they were doing immediately before they took carer’s leave.
• Dismissal of an employee for a reason connected with their taking carer’s leave will be automatically unfair. An employee will also be protected from detriment attributable to the fact that they took or sought to take carer's leave.?
• An employee can bring an employment tribunal claim against their employer if they consider that their request has been unreasonably postponed or they have been prevented from taking their leave. The employment tribunal can make a declaration and award compensation.

??Actions required:

• Prepare and implement a carer’s leave policy.
• Consider systems to support and process requests for carer’s leave.
• Inform employees of the new right to carer’s leave and explain what other leave may be available for those with family caring obligations, i.e. dependent care leave and parental leave.
• Inform employees of the new policy.

?The Protection from Redundancy (Pregnancy and Family Leave) Act 2023

6 April 2024

From 6 April 2024, employees who are pregnant or returning from maternity, adoption or shared parental leave will receive an extension to the period of special protection in a redundancy situation (i.e. the right to be offered suitable alternative vacancy, if one is available, before being made redundant). The extension will apply from the time the employer has been informed of the pregnancy for a period of up to 18 months following the birth (or the expected week of childbirth where the employer has not been notified of the date of birth before the end of maternity leave). For employees taking adoption leave, the protection will begin at the placement of a child.

The extension to include protection during pregnancy will apply where an employer has been informed of the pregnancy on or after 6 April 2024.

The extension of the protected period will apply to any maternity and adoption leave ending on or after 6 April 2024.

For those taking shared parental leave who have not taken maternity or adoption leave, the extension of protection will cover 18 months from birth provided that a six-week threshold of continuous shared parental leave is taken.

If an employer fails to comply with its obligations to offer suitable alternative vacancies to employees during the extended protected period, and the employee is dismissed as a result, the employee will have the right to claim automatic unfair dismissal.

The regulations will also provide protection to employees who have suffered a miscarriage before 24 weeks. (Note: Where a pregnancy similarly ends after 24 weeks, this will be classified as a stillbirth and the employee would be entitled to statutory maternity leave.) The employee will be protected from the time she notifies her employer of her pregnancy until two weeks after the end of the pregnancy.

?Actions required:

• Review HR systems to ensure there are mechanisms in place to notify the employer of the respective dates when the extended protected period starts and ends.
• Consider the extended protected period for pregnant employees or employees on maternity and adoption leave when conducting any redundancy process. The employer should ensure that managers are aware of those employees to whom the extended protection period applies.

Increase in National Living Wage and National Minimum Wage and Statutory Payments

National Minimum Wage (Amendment) Relations 2023

1 April 2024

Note: The age threshold for the national living wage will be lowered to apply to workers aged 21 and over, rather than 23 and over.

The national living wage and national minimum wage rate will increase as follows:

• The national living wage (for those aged 21 or older) will increase from ￡10.42 to ￡11.44 per hour.
• The national minimum wage (for those aged 18-20) will increase from ￡7.49 to ￡8.60 per hour.
• The national minimum wage (for those aged 16-17 and for apprentices under 19, or over 19 and in the first year of the apprenticeship) will increase from ￡5.28 to ￡6.40 per hour.

From 6 April 2024, the rate of statutory sick pay will increase from ￡109.40 to ￡116.75 for seven days. The lower earnings limit threshold will remain at ￡123 per week.

(Please note that whilst the same weekly statutory sick pay rate applies to all employees, the amount payable for each day they are off work due to illness (the daily rate) will be dependent on the number of qualifying days they work each week. We are available to assist clients in calculating the daily rate if required.)

6 April 2024 will also see the following increases in compensation limits:

• The limit on a week’s pay for calculating the redundancy and unfair dismissal basic award will increase from ￡643 to ￡700.
• Maximum basic award for unfair dismissal and statutory redundancy payment will increase from ￡19,290 to ￡21,000.
• Maximum compensatory award for unfair dismissal – subject to a maximum cap of a year's pay will increase from ￡105,707 to ￡115,115.

?7 April 2024

For statutory payments due on or after 7 April 2024, the statutory rate for statutory maternity pay, statutory paternity pay, statutory shared parental pay, statutory adoption pay and statutory bereavement pay will increase from ￡172.48 to ￡184.03 per week or 90 per cent of average weekly earnings (whichever is the lower).

As with statutory sick pay above, the lower earnings limit threshold will remain at ￡123 per week.

Actions required:

• Ensure payroll administrators are aware of the increased rates for minimum wage pay.
• Ensure the correct calculation of the minimum wage pay ? i.e. include payments that count towards the minimum wage pay such as incentive payments or bonus payments but exclude elements of pay that should not be counted such as any premium element for overtime.
• Ensure accurate recording of working time for the purposes of calculating minimum wage pay.
• Ensure the correct treatment of any benefits in kind or where the employer requires the worker to purchase items or uniform.
• Note that tips, gratuities and service charges do not count towards minimum wage pay.
• Consider where staff redundancies are being contemplated to take place on or after 6 April 2024 and the increased limit on a week’s pay for the purposes of calculating statutory redundancy pay.
• Ensure that the correct family leave payments are being made for family leave being taken on or after 7 April 2024.

Holiday Pay

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

1 April 2024

For annual leave years starting on or after 1 April 2024, holiday entitlement for irregular hour workers and part-year workers will be calculated as 12.07 per cent of actual hours worked in a pay period.

For leave years beginning on or after 1 April 2024, employers can use rolled-up holiday pay as an additional method for calculating holiday pay for irregular hour and part-year workers only. Employers using rolled-up holiday pay should:

• Calculate it based on a worker’s total pay in a pay period;
• Inform the workers that they intend to start using rolled-up holiday pay (check if this will entail a variation of the workers' contract); and
• Ensure holiday pay is paid at the same time the worker is paid for the work done in each pay period and that this payment is clearly marked as a separate item on the pay slip.

?Actions required:

• Review holiday pay calculations for all irregular hour and part-year workers.
• Ensure that the method of calculating holiday pay is clearly set out in the worker’s terms and conditions.
• Ensure that the correct annual leave payments are being made for workers, irregular hour workers and part-year workers.

Flexible Working and Predictable Working Patterns

Employment Relations (Flexible Working) Act 2023 & Flexible Working (Amendment) Regulations 2023?

6 April 2024

From 6 April 2024, employees will have a day one right to request a flexible working pattern. The further amends to the act provide that:

• Employees will no longer have to explain what effect their requested change may have on the employer and how any such effect might be dealt with.
• Employees will be entitled to make two requests (instead of one) in any 12-month period.
• Employers will not be able to refuse a request unless the employee has been consulted.
• Employers will have to make a decision in two months (reduced from three months), subject to agreeing to an extension to the decision period.

?Notwithstanding the amends to flexible working requests, it still remains a right to request flexible working and not a right to insist upon flexible working.

An employer may still be able to reject a flexible working request for one or more of the following business reason as set out in the Employment Rights Act 1996:

• The burden of additional costs
• An inability to reorganise work amongst existing staff
• An inability to recruit additional staff
• A detrimental impact on quality
• A detrimental impact on performance
• A detrimental effect on ability to meet customer demand
• Insufficient work available for the periods the employee proposes to work
• Planned structural changes to the employer's business

It should be noted that where an employee seeks a reasonable adjustment for their disability through a request for flexible working, the employer must consider this in line with its legal obligations under the Equality Act 2010.

An employer must not subject an employee to any detriment or dismissal because the employee has made or intends to make a flexible working request, or where the employee has raised or intimated that they will raise legal proceedings against the employer in relation to their right to request flexible working.

Acas Code of Practice on Requests for Flexible Working

On 11 January 2024, Acas published a draft Code of Practice on requests for flexible working to provide guidance to employers and employees on the statutory right to request flexible working as set out in the Employment Rights Act 1996 (as amended) and regulations made under it. It is intended that the draft code will come into effect in April 2024 alongside the amended flexible working requests legislation.

A failure to follow the Code of Practice does not, in itself, make a person or organisation liable to legal proceedings. However, employment tribunals will take the code into account when considering relevant cases.

Please note that in addition to the amendments to flexible working requests, there also will be further legislation coming into effect this year to provide greater autonomy to workers to request alternative working patterns. The Workers (Predictable Terms and Conditions) Act 2023 will give workers and agency workers a statutory right to request more predictable terms and conditions of work where there is a lack of predictability with regard to any part of their work pattern – i.e. zero hours or fixed term contracts of less than 12 months.

Whilst the rights under the act are not due to come into force until September 2024, it should be considered when amending any flexible working policy given that a worker can make two applications in a 12-month period, and this may include a flexible working request if the request would have the effect of providing a more predictable working pattern.

Actions required:

• Review and update current flexible leave policies to reflect the new changes.
• Review systems and processes to support flexible working requests and ensure requests are dealt with promptly.
• Train managers on how to deal with flexible working requests.
• Inform employees of the amends to flexible working requests and the updated policy.
• Prepare to accommodate an increase of flexible working requests and ensure that requests are recorded accurately given the employee may make up to two requests in any 12-month period.
• Review working patterns and consider any longer-term investments that may support hybrid working.
• Review the Acas Code of Practice on requests for flexible working.

?As a final note, please be reminded that the gender pay gap reporting deadline for private companies and voluntary organisations with 250 or more staff is on 4 April 2024, using a snapshot date of 5 April 2023.

We appreciate that this year will be a busy one for employers seeking to keep ahead of the many changes coming into effect. We are available to help at any time, whether to provide employers with updated policies or support implementing any of the actions required to ensure compliance with the forthcoming changes in legislation.