Redundancy protection for pregnancy and family leave
At present, during any redundancy process an employer must offer those on maternity leave, adoption leave or shared parental leave suitable alternative employment (if it exists) as a priority over other employees provisionally selected for redundancy.
The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 increases this protection so staff are protected during or after any period of maternity, adoption or shared parental leave. It is not yet clear how long this protection will last after a return to work (with the Government indicating it may for a period of up to 18 months after the child’s birth). Further Regulations are anticipated which will set out this further detail but they are not expected to come into force until at least April 2024.
The Carers Leave Act 2023 introduces a right for employees to take at least one week’s unpaid leave during any period of 12 months to either arrange or provide care for a dependant with a long-term care need.
Further Regulations are required to set out exactly how this entitlement will work but it is anticipated that the employee will be required to give notice twice the length of the leave in order to benefit from this provision and that the time can be taken as partial or full days.
Employees are also protected from dismissal or detriment due to taking this leave and may complain to an employment tribunal if their employer has unreasonably postponed a period of carer’s leave or if they prevent (or attempt to prevent) the employee from taking such leave.
The Neonatal Care (Leave and Pay) Act 2023 has been introduced which makes provision for up to 12 weeks statutory leave and pay for employees whose children are admitted to neonatal care for at least seven days, albeit the new rights will not come in to force until April 2025.
For those who qualify, this would become a day one right, so there would be no minimum service requirement to take advantage of this new proposal. Regulations are still required to confirm the eligibility criteria in detail but once introduced, employers will need to implement new policies and procedures to reflect this new right and likely make amendments to contracts of employment to reflect this new entitlement.
Currently, employees who have worked for 26 weeks can make a flexible working request (for any reason) once per year and employers must notify the employee of the outcome of that request within a three-month period.
It was mooted in the 2019 Queen’s speech that there would be changes to this arrangement to effectively make flexible working the default position. The Employment Relations (Flexible Working) Act 2023 proposes:
- introducing a new requirement for employers to consult with employees when they intend to reject a flexible working request;
- allowing two statutory requests a year;
- requiring employers to provide a decision within a period of two months; and
- removing the existing requirement for an employee to explain what effect, if any, the change requested would have on the employer and how that effect might be dealt with.
Whilst there is not yet an implementation date for these changes, employers should familiarise themselves with the proposed amendments and prepare to update or replace their policies. In some cases, the legislative amendments may also require updates to contracts of employment and may necessitate the introduction of additional training for staff.
Employers should also be aware of:
Retained EU Law (Revocation and Reform) Act 2023
Whilst the Retained EU Law (Revocation and Reform) Act 2023 has not introduced any immediate changes to existing employment law, it is likely to have wide-reaching consequences in the mid to long term.
The main thing to note is that retained EU employment laws do currently remain in place and so will still need to be interpreted in line with EU requirements. Lower courts will however have the right to refer legal points to the higher courts who may use their powers to overturn EU-based case law.
It is likely therefore that there will be change to some areas in the employment sphere – with the most likely being related to holiday entitlement / pay and to working hours. We therefore anticipate changed to the Working Time Regulations 1998, Agency Worker Regulations 2010, and the Transfer of Undertakings (Protection of Employment) Regulations 2006.
Allocation of tips
The Employment (Allocation of Tips) Act 2023 received Royal Assent in May. It is anticipated it will come into force in 2024, likely in May. It requires employers to ensure all tips and service charges are allocated fairly between its workers. ‘Fairly’ is not defined, but employers are required to have regard to a Code of Practice, which is being developed and will be put out for consultation in due course.
It also compels employers to have a written policy on how it deals with tips and to keep records of all tips and service charges received for three years.
Predictable working patterns
The Workers (Predictable Terms and Conditions) Act 2023has recently received Royal Assent, although it is not expected to come into force for at least another year. Once implemented it will allow workers and agency workers to ask for a more predictable working pattern, with penalties for employers who fail to follow the proposed process for responding to such a request or rejecting a request for an impermissible reason. It is expected that there will be a 26 week length of service requirement to make such a request but that will need to be set out in further Regulations.
This article is a part of our quarterly employment newsletter. If you wish to receive our quarterly employment law newsletter, get in touch