2023: A Year in Review – Employment Law Changes and Updates,

Continuing on from our discussion of the year’s changes, which you can find here, do enjoy this, our second part. 

Family-Friendly Measures

Protection from Redundancy (Pregnancy and Family Leave) Act 2023

Although employers must already allow their staff to return to the same or similar role following a period of maternity, and indeed offer alternatives to redundancy, 2023’s new changes provide extra protection for pregnant employees or those already on maternity leave against redundancy. 

The Changes 

This level of protection was once only afforded for the duration of maternity leave, but now it is expected to continue until the child reaches 18 months old. While this may mean more difficulty in managing costs for employers, it does also mean that employees will benefit from increased job security during a period which is difficult for many. 

While the Act itself came into force in July 2023, secondary legislation is required to bring the new provisions into practical operation. This additional legal framework is likely to be progressed in 2024. 

What Employers Can Do To Prepare

Preparation for the changes, both current and in future, is vital in ensuring businesses stay compliant. Consider the following steps: 

• Revise and Review HR Documentation – Assess and update current redundancy policies, employee handbooks and contracts to ensure that they align with the new protections. 
• Implement Fair Redundancy Procedures – Redundancy procedures must always be fair and non-discriminatory, especially concerning pregnant staff or those on family leave. 
• Monitor and Review Redundancy Decisions – Review your decisions and make sure that they comply with the new Act and do not unfairly target employees. 
• Keep Up-to-Date with Changes – Keep abreast of anticipated changes and adjust accordingly. 

Our article back in March goes through the legislation and its wider impact in further detail, which you can read here.

Neonatal Care (Leave and Pay) Act 2023

Back in May, the government bill for neonatal care received Royal Assent, but, as with the Protection from Redundancy Act, it will require secondary legislation to bring into force, likely in 2024. 

The Changes

The new provisions state that parents of newborns admitted to neonatal care will have a statutory entitlement to take up to 12 weeks of paid leave in addition to their other entitlements (including maternity and paternity leave). 

While these new laws are set to be a huge relief for parents undergoing an incredible difficult time, it does also mean that employers will have to consider this added time away from work for prospective new parents. 

What Employers Can Do To Prepare

As a knock-on effect of this new legislation, it is likely that changes to the existing rules around maternity, adoption and other family-friendly policies will need to be made to reflect this new right. For starters, consider the following:

• Understand the Act’s Provisions – Your first priority must be to get to grips with the new legislation and what it entails. 
• Revise Leave Policies – Update your existing leave policies to incorporate neonatal care leave; including clear guidelines on eligibility, application processes and leave duration. 
• Amend Employee Handbooks and Documentation – Ensure that all employee handbooks, contracts and HR documents reflect the new policies. 
• Set-Up a System for Leave Requests – Establish a clear, straightforward process for employees to request their family leave, and make sure that it’s easily accessible and confidential. 
• Communicate Changes and Offer Support – Inform all staff of the changes, and offer support to those affected, such as flexible working options. 
• Develop Return-to-Work Plans – Return-to-work plans for those coming back from their leave are a key aspect of re-introducing staff and getting them up to speed. This can include phase returns as well as the aforementioned flexible working arrangements. 

By taking the above steps, you can be sure that you’re fully prepared for both the current changes and those on the horizon the next year. 

Our article back in January discussed the changes here.

Carer’s Leave Act 2023

Another of the more family-oriented pieces of legislation to come into law in 2023 is the Carer’s Leave Act 2023, (again which will require secondary legislation to bring its provisions into affect). 

The Changes

The general principle behind the act is that it establishes a statutory entitlement which gives employees leave to care for those family members with a ‘long-term care need’ – defined by an illness or injury, either physical or mental, that requires care for upwards of three months or issues related to old age. 

What Employers Can Do To Prepare

Expecting to be in force in the Spring of 2024, the Act will require employers to take several steps.

• Updating Existing Policies – As with many of the other changes, policy will need to be reviewed, amended and updated to reflect the changes.
• Creating a ‘Self-Certification’ Form for Carers – Employees who are to be carers need to certify themselves as such, but there is no requirement for employees to ‘prove’ their situation. In fact, the Act even states that an employer cannot require their employees to supply evidence if they request the leave. As a result, it is purely down to the individual employee to declare themselves – employers should provide forms for staff members to do so. 
• Establish a Record-Keeping System – Keep track of the number of days taken to assist those staff considered carers. 
• Inform and Train Management – Managers need to be acutely aware of the changes, as they may trespass certain sensitivities and get themselves into hot water if they treat carer staff differently. 
• Spread the Workload – As with any form of leave, it may well be necessary to prepare in advance for others to take up the work that the carer staff may otherwise do. 
• ‘Reboard’ Returning Staff – Carer staff will also need effective re-introduction and assistance when coming back to full time work, which businesses need to be prepared for well in advance. 

These measures, among others, are a good way to ensure that those staff who take carer leave are not excluded, unfairly treated or otherwise discriminated against. 

Our article back in January discussed the changes here.

Key Updates to The Equality Act

Equality and Diversity: The Equality Act 2010 (Amendment) Regulations 2023

In another of the notable changes and updates that this year has had to offer, the commitment to fostering equality and diversity in the workplace has been reinforced and expanded considerably in 2023. Amendments to the Equality Act have expanded protections in relation to pregnancy, maternity and breastfeeding, indirect discrimination, access to employment and occupation, equal pay and the definition of disability. 

For employers, these changes mean an even greater focus on the sensibilities of their staff, especially with regards to the working conditions within the business. 

For all the details of the government’s changes, their official website lists them here.

Sexual Harassment in the Workplace: The Worker Protection Act 2023

The Worker Protection Bill also passed this year, with the aim of the legislation to combat workplace sexual harassment, and a shift of focus from redress to prevention. 

Under the new rules, employers have a mandatory duty to take all reasonable steps possible to ensure that sexual harassment does not occur. There’s also the issue of vicarious liability – that employers can be held partially responsible if they have not taken all reasonable steps necessary. 

For a deeper dive into the extent of the issue, why not take a look at our August newsletter article here.

Restrictive Covenants 

Alongside the holiday pay proposals, the UK government recently announced its intention to curtail non-competition provisions in employment contracts to a maximum of three months after employment. 

This proposed change is yet to be enacted due to the parliamentary timetable, and there is uncertainty whether this will occur in 2024. However, it is crucial for businesses to remain alert to this proposal as it might require them to take steps to lessen potential impact.

What is a Restrictive Covenant? 

To appreciate the potential effects of this proposal, it is worth revisiting the purpose of restrictive covenants. These contractual clauses limit an employee’s activities after their tenure, such as working with customers, enticing staff, or moving to competitors. Courts have traditionally scrutinised these covenants as they impede an individual’s right to earn a living. The enforceability of such clauses largely depends on whether they exceed what is necessary to safeguard the employer’s legitimate business interests.Historically, such covenants have been meticulously drafted to be as precise as possible, safeguarding genuine business interests and time-bound, generally not exceeding 12 months post-termination. 

What are the Proposed Changes?

The government’s latest proposal signifies its inaugural intervention in regulating post-employment restrictions, suggesting a maximum duration of three months for non-compete clauses. This approach is less radical than earlier considerations in 2020, which contemplated options such as compensating employees during the restriction period, as is the practice in France, or a complete prohibition of non-compete clauses.

Worth noting is that the proposal solely pertains to clauses that prohibit work with competitors or within the same industry. It does not impact clauses that prohibit solicitation of clients or employees. It is advisable for HR departments to proactively review current employment contracts with particular focus on non-competition provisions whilst ensuring other protective measures like enforceable notice periods, garden leave clauses, non-solicitation and non-dealing clauses are intact. 

Taking these steps is crucial as relying solely on non-competition clauses exposes businesses to risk given the stringent evaluation by courts.

Although the legislative change remains uncertain, businesses must stay prepared for potential consequences by ensuring their employment contracts and other protective measures are adequately structured to adapt to these proposed changes.

Transfer of Undertakings (Protection of Employment) (TUPE)

In May 2023, the UK government published a policy paper titled “Smarter Regulation to Grow the Economy,” which was shortly succeeded by a consultation paper. These documents put forward changes to the consultation requirements under the Transfer of Undertakings (Protection of Employment) Regulations 2006, specifically in relation to ‘relevant transfers’. While these proposed changes are still in the early stages, there’s a high likelihood of them becoming law in 2024.

The proposed amendments carry substantial implications for businesses of all sizes on how they engage with employees during a transfer. For organisations with less than 50 employees without an existing representative body, the new regulations would permit consultation directly with the affected employees, eliminating the need to elect employee representatives. 

On the other hand, larger businesses with 50 or more employees would still need to nominate representatives and consult with them – unless the transfer involves ‘parts’ of the enterprise affecting fewer than ten employees. In these instances, these larger entities could also consult directly with the impacted employees, mirroring the conditions of smaller enterprises.

National Living Wage and Minimum Wage Changes

In a move to address income inequality, National Living Wage and Minimum Wage rates have changed considerably in 2023, and are yet to change even more in 2024. This year’s Autumn Statement has increased hourly rates once again from 1^st April 2024.  This is the largest ever increase to the minimum wage in terms of cash.  Another significant change is the National Living Wage will now apply to all workers aged 21 and over (previously only applying to those aged 23 and over). 

	23 and over	21-22	18-20	Under 18	Apprentice
April 2023 (Current)	£10.42	£10.18	£7.49	£5.28	£5.28
April 2024	£11.44	£11.44	£8.60	£6.40	£6.40

The accommodation offset will also increase to £9.99 per day (an increase of 89p).

National Insurance Changes

The main changes for 2024 for National Insurance come in the form of Class 1 National Insurance contributions, which are being reduced with effect from 6^th January 2024 from 12% to 10% – a significant difference.  

These changes reflect the rising cost of living. Employers are obligated to adhere to these new rates, ensuring that workers receive a wage that meets the evolving economic demands.

Full details of the current structure can be found here, as well as on the government’s official website here.

Ongoing Brexit Implications

The post-Brexit era continues to shape employment law in the country. While many aspects of employment law remain unchanged, some adjustments have been made to accommodate the new relationship with the European Union. 

Starting from 1^st January 2024, the UK government is implementing several amendments to employment regulations. These changes are part of an initiative to streamline certain processes post-Brexit by eliminating what are considered outdated and cumbersome EU regulations. However, the government is also taking steps to maintain specific EU-based worker rights that could have been lost due to the Retained EU Law (Revocation and Reform) Act.

The Retained EU Law (Revocation and Reform) Act 2023 signifies a considerable shift in UK employment law post-Brexit. The Act, in force now, will begin impacting from 2024, ending the supremacy of EU law and giving the UK government the power to modify EU-based laws incorporated into UK law. The Act also allows for employment tribunal cases influenced by EU-based case law to be referred to higher courts. After 31 December 2023, UK courts will no longer be bound by the Court of Justice of the European Union’s decisions, allowing for unique interpretations of UK legislation.

For employers, the key thing to remember will be that the majority of current legislation will be phased out, expanded upon or amended gradually, rather than all at once. This should prove a major relief for many, as, if nothing else, the year has taught us that things can still change at an alarming rate. 

Conclusion

The past 12 months have seen a dynamic period for employment law, with significant changes and updates across various dimensions, and those changes are continuing at breakneck pace leading into to 2024. 

The legal landscape continues to evolve to address the challenges and opportunities of the contemporary workplace, and as employers and employees alike seek to navigate these changes, a commitment to understanding and implementing these developments is crucial in keeping your business afloat in the years to come. 

At HR:4UK, we’re on hand to help you sail through these troubled waters. If you are concerned about any of the current or impending legislation, and want advice, tips, strategies or policies, then get in touch today on 01455 444 222 or email [email protected].

In the meantime, be sure to have an excellent Christmas and a very happy New Year!