Upcoming changes to employment law

The next few years will see several significant changes to employment law, in particular around family friendly rights.

Key areas of employment law to be amended

Amendments are expected to be made in key employment law areas including neonatal leave, unpaid leave for employees with caring responsibilities and flexible working.

Changes to flexible working

Currently, there is a requirement for an employee to have a minimum of 26 weeks’ service before they can make a flexible working request. From 6 April 2024, this will become a ‘day one’ right.

Going forward, an employee won’t have to explain any impact of a flexible working on their employer. The emphasis is changed to a presumption that a request will be agreed rather an employee needing to justify the request.

Employees will be entitled to make two requests per year and an employer will have to respond to the request within two months. Currently, employees are only able to make one request and employers have three months to respond.

It should be noted that this is not a right to have flexible working so an employer can still turn down a request if they are unable to accommodate it on the following statutory grounds:

• The burden of additional costs
• An inability to reorganise work amongst existing staff
• An inability to recruit additional staff
• A detrimental impact on quality
• A detrimental impact on performance
• A detrimental effect on ability to meet customer demand
• Insufficient work available for the periods the employee proposes to work
• Planned structural changes to the employer’s business

An ACAS code for flexible working was published in January 2024.

Protection from redundancy during or after maternity, adoption or shared parental leave

Under the current regime, before an employee on maternity leave is made redundant, an employer has to offer that individual suitable alternative employment (assuming it exists) and prioritise that employee over others who have been shortlisted for redundancy.

The amendments, which will come into effect from 6 April 2024, will mean that the above right is applied from the time an employee notifies its employer of her pregnancy until for 18 months after the expected date of childbirth or date of birth. It is expected that the government will produce guidance in support of these amendments.

Employers will need to update their policies relating to these areas and ensure that managers are aware of the changes to reduce the risk of possible unfair dismissal and discrimination claims by employees.

Unpaid leave for employees with caring responsibilities

Employees with caring responsibilities for a dependent will, from 6 April 2024, be able to take one week’s leave each year to provide or arrange care for that dependant. This unpaid leave will be a day one right for employees.

A dependant will be defined as anyone who reasonably relies on the employee for their care. This definition will therefore not just be limited to a parent, child, civil partner or spouse.

Whilst an employer can postpone an employees request due to it disrupting business needs, the employee must be allowed to take the requested leave within a month of the start-date of the leave originally requested. Any rescheduling should be done in consultation with the employee.

Employers will need to ensure new policies are introduced to reflect these changes or, if policies are already in place, that they are updated.

Leave and pay for employees with responsibility for children receiving neonatal care

Where a newborn baby is hospitalised for seven days or more in the first 28 days of its life, parents will be able to take up to 12 weeks of neonatal pay and leave.

This amendment is expected to take effect from April 2025.

The allocation of tips

Employers will be under an obligation to pay 100% of tips to workers without deductions. This obligation will extend to agency workers.

The legislation will take effect from 1 July 2024. A statutory code of practice was published in December 2023 to support and clarify the legislation.

Reforming TUPE consultation requirements for smaller businesses

Currently, businesses with less than ten employees can consult directly with their employees about TUPE matters. In a larger business, however, employers are required to facilitate the election of employee representatives for the purposes of consultation.

From 1 July 2024, businesses where there are fewer than 50 employees or businesses of any size involving a transfer of less than ten employees will not be required to have employee representatives for a TUPE consultation. This means that businesses can consult directly with employees, streamlining the process. Our TUPE Update blog gives you more details on what those changes are.

Right to request a more predictable contract

The Workers (Predictable Terms and Conditions) Act is expected to come into effect in September 2024.

The legislation aims to give workers (including agency workers) the right to request more predictable employment contracts where there is unpredictability surrounding their working pattern or if an employee is on a fixed-term contract of less than a year.

Employees will be able to make two applications a year and employers will be expected to deal with any requests reasonably and notify the employee of any decision within a month.

ACAS are consulting on a new code of practice and non-statutory guidance is expected to accompany the code.

If you need any advice or support in relation to the above matters, or more generally regarding employment law, please contact a member of the Employment team who would be happy to assist.