New year, new employment law.

Employers may be surprised at the number of employment law changes that are in store for 2024. As January sales clear out the shelves of shops on high streets up and down the country, employers may like to have a look at their own policies and practices to check that they are still in style. While no crystal ball has been employed in the drafting of this update, we hope to give some guidance to help employers remain up-to-date and to point out the trends that are on the horizon to ensure that policies and practices are not too “last year”.

Strengthening protection from workplace sexual harassment

The Worker Protection (Amendment of Equality Act 2010) Act, when in force, will impose a new positive duty on employers to protect employees from being subjected to sexual harassment.

As the law currently stands, if an employee is subjected to sexual harassment in the workplace the employer will escape liability if the employer can show that they have taken “all reasonable steps” to prevent the harassment taking place. This is about to change.

Instead of asking, “what did we do” once the harassment has come to light, employers should ask “what can we be doing” before harassment occurs. If an employer is found to have fallen short in answering the ‘what can we do’ question, the Act gives the Employment Tribunal the power to uplift sexual harassment compensation by up to 25%. The Act aims to offer employees greater protection from sexual harassment in the workplace by shifting an employer’s focus away from simply redressing issues when they arise, and towards what positive steps an employer can take to prevent it.

What does this mean in practice? The steps that an employer should take to meet their obligations have not been clarified but the following requirements may well be included:

  • Undertake a staff survey to assess the attitudes towards sexual harassment within a company;
  • Conduct a risk assessment; this can be useful to identify areas where there is an increased risk of sexual harassment, for example where there is a large power imbalance between individuals. The Fawcett Society, the Justice Project and the EHRC Equality and Human Rights Commission all concluded in various reports that sexual harassment was linked to power imbalances and was disproportionately carried out by men against women;
  • Monitor; employers should keep records of all allegations to ensure repeat offenders or trends in instances of sexual harassment can be identified, and identify if there is a culture of such behaviour in any particular team or area of the business so they can be addressed;
  • Undertake an investigation; it is vital that an employer ensures that all allegations are investigated. Records should be kept of all steps taken to investigate allegations including taking accurate notes of any meetings and conversations;
  • Cautious use of Non Disclosure Agreements (NDAs): employers should only use confidentiality clauses or NDAs proportionately. Attempts to silence employees who raise complaints, or potential witnesses, may prevent the extent of any problem areas coming to light;
  • Provide staff training on what constitutes sexual harassment, how they can report it and the support available with a business;
  • Obtain board approval for settlement agreements; an employer should ensure that all settlement agreements entered into by an organisation that relate to an instance of sexual harassment are signed off at board level to ensure that members of the board responsible for running the business are aware of each allegation;
  • Recognising that there is a problem; numerous reports which contributed to the drafting of the Act confirmed that incidents of sexual harassment went underreported. A survey conducted by the Trade Union Congress released statistics in May showing that 2 in 3 women between the ages of 25 and 34 have experienced sexual harassment in the workplace but only 30% of those subjected to it reported it to their employer, the primary reason being that they did not believe that they would be taken seriously. It is important for employers to acknowledge that employees subjected to harassment may not make a complaint (or may delay making a complaint) and that they have to take a proactive role in tackling any rumours or ‘open secrets’.

For further analysis on the change to the law in this area please see our Blog on Sexual Harassment following the allegations against Russell Brand here.

Extended protection for employees returning from parental leave

2024 will see the current protection afforded to pregnant employees and those who are returning from parental leave extended. The current position is that should a redundancy situation arise, enhanced protection is given to an individual who is in the “protected period of pregnancy” (this commences on the date that an individual becomes pregnant and expires at the end of their maternity leave) or who is on any other family-related leave (e.g. paternity leave). Currently, once outside the protected period, the employee will be treated as any other in the face of any proposed redundancies.

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 will change this position. Employees who have benefitted from family leave will have priority status and will have the right to be offered first refusal to any suitable alternative roles before being made redundant.

Further regulations are needed to establish exactly how this will take effect, however, it is likely that any failure by the employer to offer a returning employee an alternative vacancy will constitute an automatically unfair dismissal, mirroring the current law entitling employees who are within the existing protected period the priority status for redeployment opportunities.

Flexible Working/predictable working

The law around employees making a flexible working request is changing and additionally, workers will have a brand-new statutory right to request more predicable working hours.

The Employment Relations (Flexible Working) Act 2023 aims to grant UK workers more flexibility over where and when they work from 2024. When the Act comes into force, there will be:

  • New requirements for employers to consult with an employee before rejecting their flexible working request;
  • An increase in the number of times that the employee can make a request (from once every twelve months to twice);
  • Creating the right to make the request a ‘day one’ right;
  • Employers will now have less time to make a decision, this being reduced from three months to two; and
  • The removal of the existing requirements that the employee must explain what effect, if any, the change applied for would have on the employer.

Employees, workers and agency workers will also have the right to request predictable working patterns when the Workers (Predictable Terms and Conditions) Act 2023 takes effect in September 2024. The aim of the legislation is to give workers whose hours or pattern of work lacks “predictability”, more power and control. They will soon be able to request that their terms be changed to grant them increased “predictability,” a term not defined in the act.

Introduction of Neonatal Care Leave

The Neonatal Care (Leave and Pay) Act 2023 forms part of a long-promised change in the law surrounding family leave. The Act will introduce a right for parents to take up to 12 weeks paid leave should their baby require neonatal care in addition to their other leave entitlements. The leave intends to support employees to enable them to spend more time with their baby at a hugely stressful time.

The leave will be taken at the end of any other parental leave entitlement and will not run parallel. For example, maternity leave, which starts any day from 11 weeks before the baby’s due date, will not be paused while Neonatal Care Leave is taken. The Neonatal Care leave will be taken once the maternity leave has ended giving parents more time with their baby.

Introduction of Carer’s Leave

The Carer’s Leave Act 2023 will introduce a right for employees to request carer’s leave should a dependant with long term care need require it. The Act defines “long term care need” as “an illness or injury (whether physical or mental) that requires, or is likely to require, care for more than three months, they have a disability for the purposes of the Equality Act 2010 or require care for a reason connected with old age.” An employee will be entitled to 1 weeks paid leave (determined by reference to the number of days normally worked in a 7 day period) during any 12-month period.

Should an employer deny an employee’s request for carer’s leave or attempt to prevent an employee from taking it, an employee may bring a claim in the employment tribunal. An employer can ask that an employee postpone carer leave if they reasonably consider that the operation of the business would be unduly disrupted if the leave was approved.

Limit of the length of non-compete restrictive covenants

This year, following Government consultation, a policy paper was released announcing that it was the Government’s intention to reform post-termination noncompete clauses by introducing a statutory limit of three months on their duration.

At the moment post termination restrictions will be deemed to be a restraint of trade unless an employer can show that they are no wider than reasonably necessary to protect a legitimate interest, meaning that the restriction can in some instances last for longer than 3 months.

The 3 month limit will apply only to non-compete clauses in employment contracts (as opposed to the other types of post termination restriction such as a non solicitation or non dealing with clients covenant), but interestingly will not affect wider workplace contracts such as equity agreements or shareholder agreements.

Employers should be taking steps now in new contracts to include drafting protections in any template contract and should consider the revision of existing contracts now, combined with pay rises, bonuses etc to ensure an effective change in contractual terms to protect it against this forthcoming change in the law which may render existing non compete covenants unenforceable.

What else is on the horizon?

Change in status of retained EU law – Certain provisions of the Retained EU Law (Revocation and Reform) Act 2023 (REULA) came into force from 1 January 2024 abolishing the supremacy of EU law and removing the general principles of EU law from UK law. REULA empowers the Supreme Court and Court of Appeal to depart from some EU-derived case law and legislation. This may mean that previously settled employment law may be challenged and will grant the government the power to make further legislative changes. Some employment rights, however, have been granted increased protection as the Equality Act 2010 (Amendment) Regulations 2023 (EqA Regulations) also came into force on 1 January 2024. The EqA Regulations aim to solidify existing discrimination protection for employees derived from case law which would otherwise be ‘at risk’ following REULA. The EqA Regulations also recognise the principle of a ‘single source’ test to identify an equal pay comparator, a principle derived from a number EU cases that means that when identifying a comparator for the purposes of establishing an equal pay claim, comparators can be from a single body that is responsible for an alleged pay inequality and capable of restoring equal pay, such as a parent or group company.

Fire and Hire draft statutory Code – the Government has released a new draft Statutory Code of Practice and have invited views. The code will provide employers with advice on the use of dismissal and re-engagement to bring about changes in the terms and conditions of employees. The draft code imposes an obligation on employers to take all reasonable steps to explore alternatives to dismissal. Once in force, an Employment Tribunal will be able to take the code into account when considering relevant cases and will have the power to apply a 25% uplift to an employee’s compensation if an employer is found to have not complied with the Statutory Code.

Review of whistleblowing protections – The Government has announced a review of the law that protects whistle blowers to assess whether the current protections for employees are adequate. One of the aims of the review is to support wider cultural change, in which the benefits of whistleblowing are recognised and leads to action among employers.

General election promises – It is highly likely that 2024 will see a general election and employment law is on the agenda. The Labour Party has pledged to support the Employment Rights Bill which will prohibit zero hours contracts, end the practice of “fire and rehire” and strengthen sick pay and family leave. The party has also promised to remove the cap on compensation awarded for unfair dismissal so that employees might be entitled to unlimited compensation.

Should you have any queries in relation to the changes and their potential effect on your business and/or employment rights, or indeed any other employment law related query, please contact Linky Trott or any other member of the Edwin Coe Employment Team.

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

Edwin Coe LLP is a Limited Liability Partnership, registered in England & Wales (No.OC326366). The Firm is authorised and regulated by the Solicitors Regulation Authority. A list of members of the LLP is available for inspection at our registered office address: 2 Stone Buildings, Lincoln’s Inn, London, WC2A 3TH. “Partner” denotes a member of the LLP or an employee or consultant with the equivalent standing.

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