The 2024 Employment Agenda

AI Dominance
AI will continue to dominate headlines during 2024.  In September 2023, the Trades Union Congress (‘TUC’) announced the launch of an “AI taskforce” to establish new legal protections for employees and employers and will publish a draft “AI and Employment Bill” by early 2024. The TUC has expressed concerns about AI being used to evaluate job candidates and warned that this could result in discrimination and exploitation in the workplace. The TUC has also said that some employers are adopting AI systems without a full understanding of their implications, including whether they are discriminatory, and it warned that the UK risks becoming an “international outlier” if it does not attempt to address these issues.

It is likely that the draft Bill will propose:

• A legal duty on employers to consult trade unions on the use of high-risk AI;
• A legal right for all workers to have a human review of decisions made by AI systems; and
• Amendments to existing legislation to guard against discriminatory algorithms.

We can also expect to see AI affecting the way in which employment litigation is handled. We have recently seen one of the first domestic judicial decisions to consider the risks of relying on AI in case preparation. It highlighted the “serious and important issue” of parties adducing non-genuine, AI-generated authorities. This reinforces the need for employers to take expert legal advice at an early stage rather than relying on AI to “find the answer”, as well as the need for employers to have robust policies in place covering the use of AI in the workplace.

Changes to Holiday Pay and TUPE
Employers will need to get to grips with significant reform in this area.  The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 came into force on 1 January 2024 and make various important changes to record keeping requirements under the Working Time Regulations, holiday pay and entitlement, calculating holiday entitlement for part-year and irregular hours workers and TUPE consultation requirements. See our previous article here for a run through of the key issues.

The Government has also published Guidance on calculating holiday entitlement and holiday pay, focusing particularly on the rights of part-year workers and those working irregular hours. Our update looks at this further.

Flexible Working Reform
From 6 April 2024, the Employment Relations (Flexible Working) Act 2023 will make changes to the right to request flexible working so that:

• Employees will no longer have to explain what effect their requested change may have on their 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; and
• Employers will have to make a decision in two months (reduced from three months), subject to agreeing a longer decision period.

The Flexible Working (Amendment) Regulations 2023 will introduce a “day one” right to request flexible working (in place of the current requirement for 26 weeks’ continuous employment to qualify for the right) in respect of flexible working requests made on or after 6 April 2024.

Importantly, the eight business reasons currently allowed for refusing a statutory flexible working request will remain unchanged.

The Acas Code of Practice on handling requests for flexible working has been updated in draft form and a final version is promised for later this year.

Employers should review and update their flexible working policies to reflect the changes.

Paternity Leave Changes
The draft Paternity Leave (Amendment) Regulations 2024, which are proposed to come into force in March 2024, have now been laid before Parliament. The Regulations will make changes to the way in which the statutory entitlement to paternity leave is exercised, including the requirements relating to notice and evidence, the period within which paternity leave must be taken, and the requirement that paternity leave be taken in one continuous period. They apply to babies whose expected week of birth begins after 6 April 2024, and to children whose expected date of placement for adoption is on or after 6 April 2024.

Extending redundancy protection for pregnant women and new parents
The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 will provide for the extension of the right to be offered suitable alternative vacancies in a redundancy situation so that it will apply during pregnancy and for a period after pregnancy or maternity, adoption or shared parental leave (expected to begin when the employee notifies her employer of the pregnancy and continue until 18 months after the child’s date of birth). The new protection will be introduced via the Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 and is expected to be in force on 6 April 2024.

Unpaid Carer’s Leave
The Carer’s Leave Act 2023 introduces a new entitlement of one week’s unpaid leave per year for employees who are providing or arranging care for a dependant with a long-term care need. The right will apply from “day one” of employment and include protection from dismissal or detriment as a result of having taken the leave. The Carer’s Leave Regulations 2024 are expected to bring the new entitlement into force on 6 April 2024.

Employers should review their staff policies to take account of this new right.

New duty to prevent sexual harassment
The Worker Protection (Amendment of Equality Act 2010) Act 2023 will introduce a duty on employers to take reasonable steps to prevent sexual harassment of their employees and give employment tribunals the power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached the new duty. We are expecting the Act to come into force in October 2024. We are also expecting a statutory code of practice on sexual harassment to be introduced which we hope will go some way to explaining what is meant by “reasonable steps”.

Importantly, in a change to the provisions of the original Bill, the Act will not reinstate employer liability for third party harassment.

Fire & Re-hire
Following the mass redundancies announced by P&O Ferries without consultation or notice back in March 2022, a final version of the Code of Practice on Dismissal and Re-engagement is expected to be published in Spring 2024. The Code is expected to set out a step-by-step process that an employer should follow to explore alternatives to dismissal and to engage in meaningful consultation with trade unions and employee representatives or directly with the affected employees to find an agreed solution. See our earlier article on this topic for further background.

Right to request a more predictable contract
The Workers (Predictable Terms and Conditions) Act 2023 aims to give workers and agency workers the right to request more predictable terms and conditions of work where there is a lack of predictability to their work pattern. It is likely to come into force in around September 2024 and will impact employers who rely on casual workers. Those employers who are affected should consider introducing or amending staff policies to deal with the new right.

National Minimum Wage
The Government has announced the new National Living Wage and National Minimum Wage rates which will come into force from April 2024. Further details can be found here.

General Election
Of course, we also have the next general election to look forward to.

The Labour Party is proposing to make significant reforms to employment law if it wins power. It has committed to introducing an Employment Rights Bill within the first 100 days of entering office and other proposals include:

• A ban on zero-hours contracts;
• A ban on employers using “fire and rehire” as a means of changing an employee’s contractual terms;
• A range of equality and anti-discrimination measures, including obligations for larger employers to report on their disability and ethnicity pay gaps;
• Extending statutory sick pay entitlement to all workers and providing it from the first day of sickness absence;
• Removing the two-year qualifying period for ordinary unfair dismissal protection;
• Extending the usual time limit to bring an employment tribunal claim from three months to six months; and
• Reforming the law regarding trade unions, aiming to remove some of the restrictions on union recognition and industrial action, as well as boosting collective bargaining.

Please get in touch if you need to speak to us about any of these issues.