The past five years have seen somewhat of a zombie government in employment law terms.

A combination of Brexit and COVID 19 has resulted in very little change, with many of the employment law promises of the 2019 Conservative Manifesto left untouched.

However, that is likely to change in 2024 as the Retained EU Law (Revocation and Reform) Act 2023 (“the Act”) comes into force on 1 January.

HR professionals will no doubt remember that there was some controversy as the Bill passed through Parliament.

Originally, it was going to revoke all EU-derived Regulations unless they were reinstated, which would’ve seen Working Time Regulations, TUPE Regulations, Part Time and Fixed Term Workers Regulations and Agency Workers Regulations all disappear.

Thankfully, someone saw sense and this was reversed – but that isn’t the end of the story. A great deal of uncertainty remains, as Louise Taft, consultant employment solicitor at Jurit LLP, explains.

Expect holiday pay uncertainty and litigation

Because the Act makes technical changes to the interpretation of all EU derived legislation, including the Equality Act, this is essentially an invitation to overturn the way courts and tribunals have interpreted EU derived employment rights.

So, HR professionals can expect litigation over whether or not holiday pay should include bonuses and commissions, and the extent to which holiday pay can be carried over when a worker is off sick.

Whilst that litigation finds its way through the Tribunal system, HR professionals will need to make some difficult calls on this, given the prospect of uncertainty from a legal perspective.

New legislation on Equal Pay – but to retain the status quo

The changes imposed by the Act would undermine the efforts of women to seek equal pay when their pay is set by the same “single source” as their male comparators.

This has been used most notably in recent cases where supermarket shopworkers have been compared with distribution workers.

In the Government’s defence, it has promised to replicate the EU Treaty article used in these cases in UK law – but are yet to act on it, so HR professionals will have to wait and see what happens here.

Smarter Regulation: Changes to Working Time Regulations, TUPE and Non-compete clauses

The Government has released a paper proposing changes to the Working Time Regulations. These include:

    • Removing the requirement to record daily working hours for the purposes of the Working Time Regulations (though this would still be necessary to ensure minimum wage compliance).
    • Creating a single statutory holiday entitlement of 5.6 weeks, to remove the distinctions between the EU derived 4 weeks’ holiday and additional 1.6 weeks from UK law.
    • Allowing “rolled up” holiday pay.
    • Making technical changes around the calculation of holiday pay and entitlement.

It also proposes changes to TUPE to allow individual rather than collective consultation in a wider number of small-scale transfers.

Finally, the consultation proposes a ban on non-compete clauses of more than three months.

To date, none of this has been implemented and, given that the non-compete ban would require primary legislation which would be addressed “when Parliamentary time allows,” it remains to be seen when HR professionals can expect this.

Changes to Flexible Working

The Employment Relations (Flexible Working) Act received Royal Assent over the summer but isn’t expected to come into force until 2024.

It makes technical changes to the existing framework allowing up to two requests per year which have to be considered by employers within two months and requires them to consult with employees before refusing a request.

However, the Act doesn’t make flexible working a “day one right”, as previously promised by Government, so, this could change in the near future.

For now, employees still need to have been with their employer for 26 weeks before they have the statutory right to request flexible working.

In the meantime, the Government has issued a Call for Evidence on “non-statutory” flexible working (requests outside the statutory scheme).

It’s unclear whether this would lead to further statutory change or perhaps guidance issued via the Advisory, Conciliation and Arbitration Service (ACAS). We shall have to wait and see.

12 Month Employment Law Radar

There are a host of other considerations that HR professionals will want to monitor over the coming year, including:  

    • Regulations extending the protection from redundancy to pregnant workers and those recently returned from parental leave
    • Regulations under the Strikes (Minimum Service Levels) Act detailing how this will work in the specified services
    • Removal of the bonus cap in financial services
    • The Workers (Predictable Terms and Conditions) Act which will give the right to request a more predictable working pattern
    • The Carers Leave Act which will give carers the right to one week’s unpaid leave per year
    • The Employment (Allocation of Tips) Act which will impose obligations on employers regarding tips, gratuities and service charges
    • We also expect amendments to the Equality Act over sexual harassment and duties to protect employees from harassment from third parties. This is a highly political Bill that has been subject to considerable amendment during its passage through Parliament, so watch this space in terms of what it will actually change.

Louise Taft is a consultant solicitor specialising in employment law at virtual law firm, Jurit LLP.

As Chair of the Brexit sub-committee for the Employment Lawyers Association, Louise is widely considered to be an expert on the Retained EU Law (Revocation and Reform) Act, and chaired a working party on the matter which responded to Government on the Bill.

 

 

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