Top 10 HR considerations for 2024
15 December 2023
Article updated January 2024.
Following several years of delay and with little substantive progress on the Government’s manifesto commitments, 2023 saw a raft of new employment legislation. This was largely through the introduction of no less than seven Private Members’ Bills, which were all given Government support to proceed through Parliament and were granted Royal Assent during 2023.
With 2024 set to be a busy year, we look at what we consider to be the top ten things for HR to focus on (in no particular order).
1. Flexible and hybrid working
A strengthening of current flexible working rights is due to be implemented, following the passing of the Employment Relations (Flexible Working) Act 2023 in July 2023. Regulations taking effect on 6 April 2024 will extend the right to all employees from the first day of their employment. Employees will be permitted to submit up to two flexible working requests per year (rather than one, as now), and employers must respond to the request within two months (rather than three). A new Acas Code of Practice on handling requests for flexible working (currently available in draft form) will apply. Employers will need to review their current policies to make sure that they are compliant and that managers are confident with handling requests.
Hybrid working continues to present issues for employers, remaining popular with many employees who might be resistant to attempts to impose a minimum number of days in the workplace. Employers seeking a return to the office must ensure that they adopt a careful strategy, incorporating consultation with individual staff, before imposing compulsory office working.
2. Sickness absence
Recent ONS figures (May 2023) showed a record number of people in the UK not working due to long-term sickness. This is thought to be related to increased levels of mental ill health, particularly in younger people, delays in medical treatment due to NHS backlogs, and long-term effects of COVID infections. Latest CIPD statistics (Health and wellbeing at work 2023 report, September 2023) also show the highest rate of sickness absence (short and long term) for over a decade. Employers need to be confident in their processes for managing sickness absence and consider potential strategies for reducing levels of absence and mitigating the effect.
The Government has recently launched its ‘Back to Work’ plan for welfare reforms, supporting those with long-term health conditions, disabilities or long-term unemployment to look for and stay in work and introducing tougher sanctions for those who do not look for work. As part of the proposed reforms, the Government is planning to consult on changes to the current ‘fit note’ system.
Separately, the Work and Pensions Committee has issued a new ‘call for evidence’ for a new inquiry into the effectiveness of statutory sick pay (SSP) and whether reform would better support recovery and return to work.
3. Industrial action
The Strikes (Minimum Service Levels) Act 2023 was granted Royal Assent on 20 July 2023. It is intended to limit the impact of ongoing strike action on essential public services.
The Government has consulted over proposed ‘minimum service levels’ (MSLs) under the Act, in respect of border security, passenger rail and ambulance services. It published consultation responses in November 2023 and new regulations to implement the applicable MSLs, which came into force on 8 December 2023. A further consultation has since been launched on MSLs in education, closing on 30 January 2024.
In November 2023, the Department for Business and Trade issued new guidance for employers, trade unions and workers on issuing ‘work notices’ in relation to MSLs during strike action. Courts and tribunals may take into account this guidance where they consider it relevant. The guidance sets out the process for employers to follow once a trade union has given notice of a strike if it is a relevant service to which the new MSL regulations apply.
In addition to the introduction of minimum service levels in key public services, the Government has also issued a new consultation on removing the current ban on the use of agency staff to cover the work normally carried out by striking workers. This follows the successful judicial review application brought by 13 trade unions earlier this year, after which the ban was reinstated. It is likely that following the latest consultation, the Government will reintroduce the ability for employers to lawfully engage agency staff during periods of industrial action.
Employers in these sectors should make sure that they understand how these minimum service levels will apply to their sector and the circumstances when they can issue a ‘work notice’ during periods of industrial action.
4. Family friendly rights
A new right for carers to take (unpaid) leave, as a result of the Carer’s Leave Act 2023, will come into force on 6 April 2024. The draft Carer’s Leave Regulations 2024 have been laid before Parliament and set out the details of how the new right will operate. It is a ‘day one’ entitlement for carers to take up to one week’s unpaid leave per year, to provide or arrange care for a dependent with a ‘long-term care need’ (defined as: an illness or injury (physical or mental) that requires, or is likely to require, care for more than three months, a disability, or issues relating to old age).
An extension to existing redundancy protections to apply during pregnancy, and for those taking periods of family-related leave, is introduced under the Protection from Redundancy (Pregnancy and Family Leave) Act 2023. The right to be offered suitable alternative vacancies in a redundancy situation will apply during pregnancy, and for a period of 18 months after birth or placement for adoption for those taking maternity, adoption or shared parental leave. Draft regulations setting out the new right have been laid before Parliament and will take effect from 6 April 2024.
The Government has also announced some minor reforms to the existing right to take paternity leave. This will mean that the existing two weeks of paternity leave can be taken in two separate blocks of one week, rather than a single block of leave. It can also be taken at any time in the first year, rather than limited to the first eight weeks after birth or adoption as at present. It has been confirmed that these changes will take effect in relation to children due to be born or placed for adoption on or after 6 April 2024.
The Neonatal Care (Leave and Pay) Act 2023, which gained Royal Assent in May 2023, introduces additional paid leave for those whose baby requires neonatal care. This is unlikely to take effect until 2025 and is subject to the introduction of multiple statutory instruments.
Employers will need to review their existing family leave policies to take account of these new rights, now the implementation date for most of them is confirmed as being 6 April 2024.
5. Artificial Intelligence
Employers in almost every sector are having to get to grips with the implications of AI as a tool, whether it is being used by their staff in carrying out their duties (with or without employer approval) or being adopted to assist with certain HR functions. It is a very fast-moving area and at present, the legislation is not keeping pace.
Employers will need to ensure that they understand the benefits and the risks of using AI and make sure they have a robust policy in place, as well as training staff in the appropriate use of it.
6. Working time
Recent caselaw has once again changed the legal landscape on the calculation of holiday pay. The Supreme Court decision in Chief Constable of Northern Ireland v Agnew and others has potentially increased the period for which back payments can be claimed if holiday pay has been underpaid.
Employers need to be up to speed on their potential liability for underpaid holiday, particularly if they engage staff who have not been properly categorised as ‘workers’ and are entitled to receive holiday pay.
In addition, the Government has announced proposed amendments to the Working Time Regulations 1998 as part of its post-Brexit reform programme, taking effect from 1 January 2024. These amendments are designed to clarify the law relating to the calculation of holiday pay, and in particular the accrual of holiday entitlement for irregular hours and part-year workers (following the Supreme Court’s 2022 decision in Harpur Trust v Brazel). This will apply in respect of leave years starting on or after 6 April 2024 and it also introduces a statutory right to pay rolled-up holiday pay in respect of these workers. The Government has issued new guidance to explain the changes, with worked examples of holiday pay calculations. Employers should determine which staff might fall within the category of irregular hours or part-year workers and take steps to ensure that they are paying them the correct amount of holiday pay.
Alongside the significant changes to working time rules (see point six above), the Government has announced reforms to existing consultation requirements under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).
In relation to TUPE transfers taking place on or after 1 July 2024, small businesses (those with fewer than 50 employees) undertaking a transfer of any size, and businesses of any size undertaking a small transfer (involving fewer than ten employees) will no longer be required to hold elections to appoint employee representatives for collective consultation purposes prior to a TUPE transfer.
Employers will be permitted to consult their employees directly in relation to such transfers, provided there are no existing worker representatives (such as trade union representatives) in place.
8. Terms and conditions
Workers with unpredictable hours (including zero-hours and agency workers) will be getting a new right to request a predictable working pattern, as a result of the Workers (Predictable Terms and Conditions) Act 2023 which was granted Royal Assent on 18 September 2023. It is expected to take effect in autumn 2024.
This means that employers need to be prepared for dealing with such a request in accordance with the new rules, which are broadly in line with the existing right to request flexible working. A new statutory Code of Practice (under consultation to 17 January 2024) will support the new right.
Employers seeking to make changes to their employees’ terms and conditions and proposing to dismiss and re-engage on new terms (fire and rehire) will be subject to a new statutory Code of Practice – currently available in draft form. Under the code, employers will be expected to engage in meaningful consultation whilst taking all reasonable steps to explore alternatives to dismissal before reaching the decision to dismiss and re-engage on new terms. It is intended to apply irrespective of the employer’s reasons for the changes but not in a genuine redundancy situation. A date for the new code to take effect has not yet been confirmed, but it is expected in spring 2024.
In addition, the Government has confirmed that it will restrict the use of contractual post-termination non-competition clauses to a maximum of duration three months, from a date to be confirmed. Employers will need to review their existing contracts to take account of this new restriction prior to it taking effect.
9. Sexual harassment
The Worker Protection (Amendment of Equality Act 2010) Act 2023 was granted Royal Assent on 26 October 2023.
The new Act amends the existing Equality Act 2010 to incorporate a new duty for employers to take ‘reasonable steps’ to prevent the sexual harassment of their employees. If an employee succeeds in a claim of sexual harassment and the employer is found to have breached this duty, employment tribunals will have the power to increase compensation by 25%.
The Act does not, as originally anticipated, re-introduce protection against third party harassment. The House of Lords voted to remove these provisions from the original Bill.
The new provisions are expected to take effect in October 2024 and will be supported by a statutory code of practice and updated technical guidance to be issued for consultation by the Equality and Human Rights Commission. This will assist employers in understanding what is meant by taking ‘reasonable steps’ to prevent sexual harassment, which is likely to include having robust policies in place and training for staff.
10. Tips and gratuities
The Employment (Allocation of Tips) Act 2023 received Royal Assent on 2 May 2023. The Act makes it unlawful for businesses to withhold any qualifying tips, gratuities and service charges from staff. It provides that employers must introduce a fair policy for the allocation of tips between workers within a set timescale and keep written records to show how tips have been dealt with.
A new statutory Code of Practice, published for consultation until 22 February 2024, will provide more detailed guidance on how tips should be distributed amongst workers. Further regulations will be required to bring these provisions into force and there is no confirmed timeframe for them to take effect, but it is expected during 2024.
Employers in the hospitality and catering industries will need to be mindful of these changes and take steps to comply with the new rules.
All employers will need to ensure that they understand the impact of the changes outlined above on their own workforce and take the necessary steps to update their existing policies and procedures during the course of 2024.
For further information and advice on any of these issues, please contact a member of the Birketts Employment Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at December 2023.