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Welcome to March's round up of employment law developments and what they mean for employers. In this edition, we cover: EU law post-Brexit - where are we now? The Retained EU Law (Revocation and Reform) Act 2023 came into force on 1 January 2024. The Act has removed the supremacy of European Union law and the UK courts will also have wider powers when it comes to the interpretation and effect of EU case law. However, these changes create legal ambiguity and UK employers may be left wondering what this means for them? Read more Legislation changes in 2024 2024 will certainly be a year of developments in the field of employment law, and in addition to the EU law post-Brexit changes (detailed above), we are also expecting various new laws to come into force during the course of the year. We have highlighted some of the key developments below. Read more Whistleblowing - changes to the framework? In recent years the UK’s whistleblowing framework has come under heavy criticism, and in 2023 the government launched a review, focussing on the effectiveness of the existing system, whistleblower protections and best practice. As a result of this review significant changes may be on the horizon. Read more

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EU law post-Brexit - where are we now?

After much debate and parliamentary focus over the last few years, the Retained EU Law (Revocation and Reform) Act - ending the supremacy of European Union law over UK law - came into force on 1 January 2024. As a result, the government now has new powers to reform and make provisions in relation to the interpretation of EU-based employment laws.

What is the impact on employment law?

Holiday pay

Following two consultations, the government has released new guidance to cover the latest holiday pay and entitlement reforms. It sets out the changes to the Working Time Regulations (introduced on 1 January 2024) relating to:

1. Irregular hours and part-year workers, the definitions for which are now set out in the regulations along with new accrual methods for calculating their entitlement to statutory holiday in various circumstances.
2. Carryover of leave which can no longer be accrued if a worker’s ability to take leave is affected by COVID-19. The usual rules in relation to carryover will apply for any holiday accrued after 1 January 2024.
3. Rates of holiday pay and annual leave, calculation of which from 1 January 2024, must include commission, regularly paid overtime, payments relating to professional status, length of service, seniority or professional qualifications, in respect of the statutory 4 weeks’ ‘normal’ holiday pay under Regulation 13.
4. Rolled-up holiday pay, which is now permitted as an additional method for calculating holiday pay for irregular and part-year workers only for leave years beginning on or after 1 April 2024. This means that employers will be able to lawfully use rolled up holiday pay without exposure or risk of claims for unpaid holiday.

TUPE

Currently, on a transfer of employees under the Transfer of Undertaking (Protection of Employment) Regulations 2006 (TUPE), employers must consult with trade union representatives or other elected employee representatives. Employers can escape this requirement if they have less than 10 employees, in which case they can inform and consult with the affected employees directly.

From 1 July 2024, if there are no existing representatives, consultation can take place directly with the affected employees if the employer is a small business with fewer than 50 employees, or a business of any size undertaking a small transfer of fewer than 10 employees.

Equality Act 2010 (Amendment) Regulations 2023

These Regulations came into force on 1 January 2024 and are designed to preserve the effects and align the law with the established principles of certain EU case law. In broad terms, the amendments cover:

1. Direct discrimination which now cannot be claimed by a man where a woman has been afforded special treatment connected with pregnancy or childbirth. Further, provision is made for additional protection against less favourable treatment relating to maternity and breastfeeding.
2. Indirect discrimination, in which a claimant no longer has to share the same protected characteristic as the disadvantaged group, and can pursue a claim for indirect discrimination ‘by association’ provided they have suffered the same disadvantage.
3. General discriminatory statements about recruitment may now be subject to claims for direct discrimination, even if there is no identifiable ‘victim’ or specific effect on the claimant. The new provisions place a heightened obligation on employers not to state or imply in a job advert that it will discriminate against anyone.
4. Single source test in equal pay claims, which has now replaced the requirement for a claimant to show that they were paid less than a colleague employed by the same or associated employer. Now, the law only requires the terms and conditions to be derived from a ‘single source’, which potentially allows comparisons with employees from different organisations.
5. The definition of disability has been expanded in relation to the concept of ‘normal day-to-day activities’ to include an individual’s ability to ‘participate fully and effectively in working life on an equal basis to other workers’, which could include less frequent work activities as well as those established as common place in certain (but not all) types of work.

Comment

Some of the above simply incorporate long-standing employment practices, and/or the approach taken by the courts to interpret legislation. Other elements, however, place new rights or duties on a statutory footing. Employers do not necessarily need to take any particular action as a result of the above changes, except insofar as to ensure that internal processes are compliant with any new requirements. But employers should bear in mind more broadly the widened scope for claims in some areas. 

It will also be interesting to see how any broadened protections develop in practice and what (if any) other changes might be round the corner, especially with the upcoming general election.

 

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Legislation changes in 2024

The new tax year will bring its usual updates to Minimum and Living Wage rates, we will also see a number of legislation and process changes that have been anticipated for some time. 

National Living and Minimum Wage increases from 1 April 2024

The National Living Wage age threshold will be lowered to include workers aged 21 and 22.

Age	2023/24	2024/25
Apprentice	£5.28	£6.40
16-17 years	£5,28	£6.40
18-20 years	£7.49	£8.60
21-22 years	£10.18	£11.44
Over 23 years	£10.42	£11.44

 

Expected 'family-friendly' developments

As of 6 April 2024, we anticipate that The Flexible Working (Amendment) Regulations 2023 will come into effect.  Consultation has been underway for some time, and not all proposals have been approved; but the agreed changes mean that employers will need to review, and likely, update their current policies and procedures are as follows:

• workers will be able to ask for flexible working from day 1 of employment (instead of having to complete 6 months of employment before putting in a request);
• employees will be able to make two requests in a 12-month period (instead of one); and
• employees no longer have to explain what effect their requested change may have on the employer and how any such effect might be dealt with.

As predicted in a previous edition of Employment Eye, we are also set to see the implementation of The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024.  This legislation extends existing rights for employees who are pregnant or returning from maternity, adoption or shared parental leave.  Priority status for redeployment opportunities in a redundancy situation will extend over a longer period, to include not just the period of leave but also when the mother is pregnant (if they have notified the employer of the pregnancy) and up to 18 months following the date of birth or adoption placement of the child.

Further, the Carer’s Leave Act 2023 will entitle employees to take a total of one week's unpaid leave per year to provide or arrange care for a dependant with a long-term care need.  Employers may postpone carer's leave by up to a month in certain circumstances, but the employee will have a right to return to the same job and protection from detriment and unfair dismissal.

Other changes in 2024

2024 is also likely to bring changes relating to paternity leave, a Code of Practice on dismissal and re-engagement,  new immigration rules increasing the salary threshold for skilled workers visa (except in health and care), a right to request a predictable working pattern and a requirement for employers to take proactive steps to prevent sexual harassment of their employees.  We will keep you updated as these developments progress.

Fees to be introduced for claimants bringing Employment Tribunal claims

Lastly, readers are unlikely to have missed the news that consultation is currently underway to consider the re-introduction of fees to be paid, by claimants, in order to file claims in the Tribunal.  Fees were originally introduced in 2013, but deemed unlawful by the Supreme Court in 2017.  The consultation will review whether a ‘modest’ fee, which is proportionate and affordable (proposed to be £55), should be paid, in order that not all the costs are borne by the public purse.  It is currently unclear how likely it is that this proposal will be accepted.

Comment

There are clearly a number of changes in store this year, and employers should ensure their policies and procedures are updated to ensure they are fully compliant. However, we may see further developments as a result of the upcoming general election. If elected, the Labour Party are proposing to make significant alterations to current employment laws and practices, with a particular emphasis on pay, inequality, flexible working and discrimination. Employers are therefore encouraged to start considering the impact these potential changes may have on their business operations and workforce. 

 

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Whistleblowing - changes to the framework?

What is whistleblowing?

A worker blows the whistle where they make a disclosure of information which in the reasonable belief of the disclosing worker is made in the public interest and tends to show at least one of six types of failure.

Whistleblowing, particularly in the NHS, has come under close scrutiny recently where individuals making disclosures often seek to rely on health and safety being endangered as the relevant failure. Recent developments in this area include:

Lucy Letby Case

Following the widely publicised case of the former neonatal nurse, Lucy Letby, who was convicted of murdering 7 babies and attempting to kill 6 others, there will be a public inquiry.

This case brought the topic of protections for whistleblowers and how their concerns are actioned, particularly within the NHS, into the spotlight with many doctors and nurses saying they raised concerns about Letby which were not taken seriously.

Part of the inquiry will be looking at ‘the conduct of clinical and non-clinical staff and management, as well as governance and escalation processes in relation to concerns being raised about Letby and whether these structures contributed to the failure to protect babies from her.’

During the enquiry, witnesses can be compelled to give evidence and provide documentation. At the moment this enquiry is at preliminary stages.

Government Review

There is also an ongoing government review of the whistleblowing framework. This review is looking at who is protected, the availability of information and guidance and how employers and prescribed persons respond to whistleblowing disclosures, including best practice.

The review will seek views and evidence from whistleblowers, key charities, employers and regulators.

Labour Party's Proposals to Reform Unfair Dismissal Laws

At the moment, only employees can bring unfair dismissal claims. In most cases, an employee will need to have two years’ service to bring this sort of claim, but where the employee alleges the dismissal was because they ‘blew the whistle’, there is no need for the employee to demonstrate the qualifying service period, and they are able to pursue an automatic unfair dismissal claim. Furthermore, there is no cap to compensation where it is found that the individual was unfairly dismissed as a result of blowing the whistle. Individuals that blow the whistle who are not employees, because they fall into a wider category of worker, are only able to pursue a claim of whistleblowing detriment.

If Labour are elected at the next general election they are proposing significant reforms to employment law, one of the proposals is to extend the right to claim unfair dismissal to workers as well as employees, and to make this a day one right as well as removing the compensation cap that applies to most claims.

European Directive

There is a European Directive which was adopted in 2019 that requires member states to provide whistleblowers working in the public and private sectors with effective channels to report breaches of EU law confidentially by transposing the directive into their national laws. There is a requirement that legal entities with 50+ workers must establish internal reporting channels. At the moment, there is no equivalent legal obligation for employers within England and Wales.

Comment

Until we see the outcome of the above referenced public inquiry we will not know whether there were any failings, and even if failings are identified we will not know whether they are considered by the inquiry to be specific to the Trust where Ms Letby worked, or whether they are considered to be due to wider legislative issues within the whistleblowing framework.  What is clear is that the public will be expecting lessons to be learned and for answers to be provided to parents and families most closely impacted by the Letby case. It is therefore expected that both the Trust where Ms Letby worked and the whistleblowing legislative framework will come under close scrutiny.

The government review was due to conclude in August 2023, but this does not appear to have happened. It is possible that recent media interest following the Letby case will push this higher up the agenda and that we may well see the results in 2024.

If Labour were to take over following the general election, and if they go on to expand the employment protections, as detailed above, this would allow someone who is a worker, but not an employee, to bring an unfair dismissal claim. Both detriment and dismissal claims have their own tactical advantages and disadvantages but currently an employee cannot bring a detriment claim where the act complained of is a dismissal – they would need to bring an unfair dismissal claim. Putting workers in the same position as employees for the purposes of unfair dismissal law may have pros and cons for whistleblowers depending on how this were to be implemented.

Whilst there is no suggestion at the moment that our Government will seek to bring in similar provisions to the European Directive and require large employers to establish internal reporting channels, there is clearly growing pressure for changes to be made in this area. Whilst most large scale employers do have reporting channels in place, many consider it surprising that this is not already a legal requirement.

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If you would like advice or assistance in relation to any workforce issues, or indeed any of the topics mentioned in this newsletter, please get in touch with a member of our Employment Team.