Employment Law Update

New duty on employers to prevent sexual harassment coming October 2024. The Worker Protection (Amendment of Equality Act 2010) Act 2023

The new duty applies to England, Wales and Scotland and requires employers take steps to prevent sexual harassment. An Employment Tribunal can provide a 25% uplift in compensation if an employer has not taken reasonable steps to prevent sexual harassment in the workplace.

If, as an employer, you can show you took 'all reasonable steps' to prevent harassment in the workplace, you WON'T be liable if one of your staff harasses someone else. (See section 109(4) Equality Act 2010.)

Showing a tribunal you took ‘all reasonable steps’ to prevent harassment usually requires:

1. Having and implementing an equal opportunities or equality, diversity and inclusion policy and an anti-harassment and bullying policy. See here for ECA guidance. You must follow a full and fair procedure for handling complaints, in line with the Acas Code of Practice on disciplinary and grievance procedures. This could be through a grievance procedure or a specific sexual harassment policy and procedure for handling complaints.

2. Regularly reviewing those policies.

3. Making all employees aware of the policies and their implications.

4. Providing adequate training to all staff on equal opportunities and discrimination. Tribunals look at the content and nature of any training provided. A brief training session that is more of a box-ticking exercise, and which does not address issues that are known to exist in the workplace and enable employees to apply what they have learned, will not be sufficient (even if it has taken place recently). Managers and supervisors should receive additional training in identifying and handling equal opportunities and harassment issues.

5. Considering and acting on initiatives proposed by employees if it would be reasonable to do so. Where proposed initiatives are acted on, keep evidence of this.

6. Taking steps to deal effectively with complaints, including taking appropriate disciplinary action.

The Act also introduces a new, positive obligation, which will require employers to put reasonable steps in place proactively to prevent sexual harassment of employees from arising in the first place in the course of their employment. Employers facing an allegation of sexual harassment will need to demonstrate the targeted measures they have implemented to comply with this positive duty to protect employees from sexual harassment. Unlike the ‘all reasonable steps’ defence, the new duty is limited to preventing sexual harassment only so does not apply to other types of discrimination or harassment.

Further guidance can be accessed through ACAS and EHRC guidance.

Employment Rates

Employment Rates Table - April 2024

The following table provides the latest rates of statutory payments, voluntary payments, upper and lower limits on employment tribunal awards, together with JIB agreed wages and allowances.

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Employment Law Legislation Update - April 2024

The Employment Right (Amendment, Revocation and Transitional Provision) Regulations 2023 came into force on 1 January 2024 legislating the changes detailed in 1,2,3 and 4.

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The Gov has set out guidance to changes clarifications of the Working Time Regulations (1,2 & 3) here. There is no change to the holiday pay calculations as detailed in ECA advice. There continues to be a different calculation for 4 weeks at ‘normal pay’ and 1.6 weeks at ‘basic pay’. The guidance clarifies that ‘normal pay’ should include commission payments, length of service, status payments, regular overtime, and bonuses.	1 January 2024

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The Gov has set out guidance to changes clarifications of the Working Time Regulations (1,2 & 3) here.

There is no change to the holiday pay calculations as detailed in ECA advice. There continues to be a different calculation for 4 weeks at ‘normal pay’ and 1.6 weeks at ‘basic pay’. The guidance clarifies that ‘normal pay’ should include commission payments, length of service, status payments, regular overtime, and bonuses.

1 January 2024

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This is only applicable to irregular hour and part-year workers and allows employers to include an additional amount with every payslip to cover a worker’s holiday pay, as opposed to paying holiday pay when a worker takes annual leave. The calculation of holiday pay by employers is 12.07% of a worker’s total pay as (5.6 weeks of statutory annual leave divided by 46.4 working weeks of the year). If you pay more holiday this will increase. pay should be calculated based on a worker’s total pay in a pay period. A pay period is the frequency at which workers get paid, i.e. weekly, fortnightly, monthly. The guidance provides the following definitions. Irregular hours worker “A worker is an irregular hours worker, in relation to a leave year, if the number of paid hours that they will work in each pay period during the term of their contract in that year is, under the terms of their contract, wholly or mostly variable.” Part-year worker “A worker is a part-year worker, in relation to a leave year, if, under the terms of their contract, they are required to work only part of that year and there are periods within that year (during the term of the contract) of at least a week which they are not required to work and for which they are not paid. This includes part-year workers who may have fixed hours.”	For leave years beginning on or after 1 April 2024

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This is only applicable to irregular hour and part-year workers and allows employers to include an additional amount with every payslip to cover a worker’s holiday pay, as opposed to paying holiday pay when a worker takes annual leave.

The calculation of holiday pay by employers is 12.07% of a worker’s total pay as (5.6 weeks of statutory annual leave divided by 46.4 working weeks of the year). If you pay more holiday this will increase.

pay should be calculated based on a worker’s total pay in a pay period. A pay period is the frequency at which workers get paid, i.e. weekly, fortnightly, monthly.

The guidance provides the following definitions.

Irregular hours worker
“A worker is an irregular hours worker, in relation to a leave year, if the number of paid hours that they will work in each pay period during the term of their contract in that year is, under the terms of their contract, wholly or mostly variable.”

Part-year worker
“A worker is a part-year worker, in relation to a leave year, if, under the terms of their contract, they are required to work only part of that year and there are periods within that year (during the term of the contract) of at least a week which they are not required to work and for which they are not paid. This includes part-year workers who may have fixed hours.”

For leave years beginning on or after 1 April 2024

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Workers can carry over 8 days with the agreement of their employer, more if holiday entitlement exceeds statutory 28 days. If unable to take holiday due to: maternity or family leave you can carry over 28 days you could agree payment in lieu of any additional days. sickness you can carry over 20 days taken within 18 months of the end of the leave year it was accrued. You must inform the worker if untaken leave will be lost and provide an opportunity and encourage them to take their leave.	1 January 2024

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Workers can carry over 8 days with the agreement of their employer, more if holiday entitlement exceeds statutory 28 days. If unable to take holiday due to:

maternity or family leave you can carry over 28 days you could agree payment in lieu of any additional days.
sickness you can carry over 20 days taken within 18 months of the end of the leave year it was accrued.

You must inform the worker if untaken leave will be lost and provide an opportunity and encourage them to take their leave.

1 January 2024

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Employers who do not have employee representatives in place, will be able to consult directly with employees on TUPE transfers if: the employer employs fewer than 50 employees. there are fewer than 10 transferring employees.”. (regardless of employer size)	For transfers on or after 1 July 2024

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Employers who do not have employee representatives in place, will be able to consult directly with employees on TUPE transfers if:

the employer employs fewer than 50 employees.
there are fewer than 10 transferring employees.”. (regardless of employer size)

For transfers on or after 1 July 2024

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The Flexible Working (Amendment) Regulations 2023 provide: A ‘day-one’ right to request flexible working Two requests will be permitted in any 12-month period. The information required in the request will change. Employees will no longer need to consider the business impact. The outcome of the process, including any appeal, must be communicated within two months. Employers can treat requests as withdrawn in certain circumstances. Employers will need to consult with employees before rejecting a request. ECA Flexible Working template policy available here. Access ACAS Code of practice on flexible working requests 2024 here.	6 April 2024

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The Flexible Working (Amendment) Regulations 2023 provide:

A ‘day-one’ right to request flexible working
Two requests will be permitted in any 12-month period.
The information required in the request will change. Employees will no longer need to consider the business impact.
The outcome of the process, including any appeal, must be communicated within two months.
Employers can treat requests as withdrawn in certain circumstances.
Employers will need to consult with employees before rejecting a request.

ECA Flexible Working template policy available here.

Access ACAS Code of practice on flexible working requests 2024 here.

6 April 2024

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The Paternity Leave (Amendment) Regulations 2023 change the way in which paternity leave can be taken to give fathers/partners more flexibility. Namely, it will allow: Leave of two weeks to be taken as separate one-week blocks rather than consecutively. Leave to be taken at any point within the first year after the birth/adoption. Shorter notice of 28 days prior to each period of leave in birth cases. Variation of the dates by giving 28 days’ notice. The changes apply to children whose expected week of childbirth is after 6 April or expected date of placement for adoption is on or after 6 April. ECA Paternity Leave template policy available here.	6 April 2024

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The Paternity Leave (Amendment) Regulations 2023 change the way in which paternity leave can be taken to give fathers/partners more flexibility. Namely, it will allow:

Leave of two weeks to be taken as separate one-week blocks rather than consecutively.
Leave to be taken at any point within the first year after the birth/adoption.
Shorter notice of 28 days prior to each period of leave in birth cases.
Variation of the dates by giving 28 days’ notice.

The changes apply to children whose expected week of childbirth is after 6 April or expected date of placement for adoption is on or after 6 April.

ECA Paternity Leave template policy available here.

6 April 2024

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Carers Leave Act 2023 provides a new statutory right to one week’s unpaid carer’s leave. Employees will be able to take a week’s leave in any 12-month period to care for, or arrange care for, a dependant with a long-term care need. They do not need to be a family member. Employees must provide a minimum of 3 days’ notice but at least double the amount of leave requested. The employer can postpone the leave only if it would cause serious disruption to the business. ECA Carers Leave template policy available here.	6 April 2024

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Carers Leave Act 2023 provides a new statutory right to one week’s unpaid carer’s leave. Employees will be able to take a week’s leave in any 12-month period to care for, or arrange care for, a dependant with a long-term care need. They do not need to be a family member. Employees must provide a minimum of 3 days’ notice but at least double the amount of leave requested. The employer can postpone the leave only if it would cause serious disruption to the business.

ECA Carers Leave template policy available here.

6 April 2024

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Protection from Redundancy (Pregnancy and Family Leave) Act 2023. The law has, for a long time, granted extra protection from redundancy to those on maternity, adoption, or shared parental leave. They have the right of first refusal for any suitable alternative roles in a redundancy situation. From this month, this protection is being extended. Pregnant employees are now protected from the date the employee informs the employer of her pregnancy for the full period of pregnancy. Employees on maternity leave are protected for 18 months from the first day of the estimated week of childbirth (EWC). The 18-month period can be altered to start from the child’s actual date of birth where the employee informs the employer in writing of the actual date during their maternity leave period. Those on adoption leave are protected for the period of 18 months from the date of placement for adoption. Those on shared parental leave are protected for 18 months from birth/placement for adoption provided that the employee has taken a period of at least six continuous weeks of shared parental leave. This protection will not apply if the employee otherwise has protection under either the maternity or adoption provisions above. Protected during period of absence on shared parental leave only (as now) if fewer than 6 consecutive weeks of leave are taken. Where an employee suffers a miscarriage before 24 weeks of pregnancy, they will have protection during their pregnancy and for a two-week period following miscarriage. If they miscarry after 24 weeks of pregnancy this is classed as a still birth, they. They are entitled to maternity leave and will have the same protection as any other employee taking maternity leave. During the protected period, employees have the right to be offered suitable alternative employment, if one is available before being made redundant.	6 April 2024

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Protection from Redundancy (Pregnancy and Family Leave) Act 2023. The law has, for a long time, granted extra protection from redundancy to those on maternity, adoption, or shared parental leave. They have the right of first refusal for any suitable alternative roles in a redundancy situation. From this month, this protection is being extended.

Pregnant employees are now protected from the date the employee informs the employer of her pregnancy for the full period of pregnancy.
Employees on maternity leave are protected for 18 months from the first day of the estimated week of childbirth (EWC). The 18-month period can be altered to start from the child’s actual date of birth where the employee informs the employer in writing of the actual date during their maternity leave period.
Those on adoption leave are protected for the period of 18 months from the date of placement for adoption.
Those on shared parental leave are protected for 18 months from birth/placement for adoption provided that the employee has taken a period of at least six continuous weeks of shared parental leave. This protection will not apply if the employee otherwise has protection under either the maternity or adoption provisions above. Protected during period of absence on shared parental leave only (as now) if fewer than 6 consecutive weeks of leave are taken.

Where an employee suffers a miscarriage before 24 weeks of pregnancy, they will have protection during their pregnancy and for a two-week period following miscarriage. If they miscarry after 24 weeks of pregnancy this is classed as a still birth, they. They are entitled to maternity leave and will have the same protection as any other employee taking maternity leave.

During the protected period, employees have the right to be offered suitable alternative employment, if one is available before being made redundant.

6 April 2024

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As announced in the Spring Budget last month, employees’ national insurance contributions will fall from 10% to 8%. Income tax thresholds remain frozen across England, Wales and Northern Ireland, but the Scottish government has introduced a new “advanced” tax band for higher earners.	6 April 2024

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Rates of statutory pay increase to include: maternity pay, adoption pay, paternity pay, shared parental pay and parental bereavement pay all increase to £184.03 per week or 90% of the employees average weekly earnings, whichever is lower Statutory sick pay increases from £109.40 to £116.75 National Minium wage increases, the national living wage rises nearly 10% to £11.44. Detail on all statutory payments can be found here.	6 April 2024

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Rates of statutory pay increase to include:

maternity pay, adoption pay, paternity pay, shared parental pay and parental bereavement pay all increase to £184.03 per week or 90% of the employees average weekly earnings, whichever is lower
Statutory sick pay increases from £109.40 to £116.75
National Minium wage increases, the national living wage rises nearly 10% to £11.44.

Detail on all statutory payments can be found here.

6 April 2024

New duty on employers to prevent sexual harassment coming October 2024. The Worker Protection (Amendment of Equality Act 2010) Act 2023

Showing a tribunal you took ‘all reasonable steps’ to prevent harassment usually requires:

2. Regularly reviewing those policies.

3. Making all employees aware of the policies and their implications.

5. Considering and acting on initiatives proposed by employees if it would be reasonable to do so. Where proposed initiatives are acted on, keep evidence of this.

6. Taking steps to deal effectively with complaints, including taking appropriate disciplinary action.

Further guidance can be accessed through ACAS and EHRC guidance.

Labour's new deal for working people sets out labours vision and includes:

Banning zero-hours contracts and ending fire and rehire
Extending maternity and paternity leave and introducing the right to bereavement leave
Strengthen trade unions right of entry to workplaces to organise.
A ‘genuine’ living wage for adult workers.
Single Enforcement Body (SEB) to ensure workforce rights.
Day-one Employment Rights including for self-employed (unfair dismissal (currently 2-years), sick pay & parental leave).
Plans to address bogus self-employed.
Single status of worker even if self-employed.
6 months (from 3 months) to submit ET claim.
Sectoral Collective Bargaining

Conservatives have not released a manifesto yet although they have hinted at a possible further budget in Autumn before election with possible further tax cuts.

The Government advisory body, the Low Pay Commission (LPC), has published new advice to government on the future of the minimum wage beyond 2024, in it they suggest that apprenticeship wage for over 18’s should be raised to narrow the wage gaps between apprentices and other workers.

Gov Advice - LPC recommends moving towards a National Living Wage for over-18s
FE Week - Apprentice minimum wage should be linked to age, says Low Pay Commission