Recent developments and forthcoming legislative changes in employment law

29 September 20236 Minute Read

Luiza Paludo GomesPolicy Advisor - HR | BRC

Forthcoming changes – to be confirmed:

Paternity Leave and Pay

Following the 2019 Consultation on reforming parental leave and pay, government has proposed a number of amendments to the operation of the paternity leave scheme, giving employed fathers more flexibility.
This includes taking the current entitlement of up to two weeks of leave in two separate one-week blocks, the ability to take their leave at any time in the first year and changing the notice requirements.
The changes will be introduced ‘in due course’ through secondary legislation

EU-derived protections on equal pay retained

Under the Equality Act 2010, men and women are entitled to receive equal pay for equal work, however, a claimant and comparator must be employed by the same/associated employers.
Article 157 of the Treaty on the Functioning of the European Union (TFEU), or the ‘single-source’ test gives claimants the right to equal pay, even if they work for a different employer or at a different workplace, so long as they work for the same ‘source’.
The TFEU was due to be removed under REUL. Government has now confirmed it will retain equal pay protection legislation through secondary legislation before the end of the year.

Received Third Reading in the Lords on 12 September 2023; the Bill now returns to the Commons for Consideration of Amendments on 20 October 2023.
The Worker Protection Bill imposes a proactive duty on employers to take reasonable steps to prevent the harassment of their employees.
The House of Lords has removed the provision which would have made employers liable for the harassment of employees by third parties in the course of employment.
The new duty for employers to take reasonable steps to prevent sexual harassment in the course of employment.

Second Reading in the Commons scheduled for 24 November 2023 (though the House is not due to sit that day).
Under current law, an employee who experiences the loss of a pregnancy at or before 24 weeks has no legal entitlement to any statutory type of leave (paid or unpaid).
The Bill would provide for employees who have experienced a loss before 24 weeks of pregnancy, three days of statutory paid leave (including molar and ectopic pregnancies).
General view is that the Bill is unlikely to be taken forward.

Second Reading in the Commons scheduled for 24 November 2023 (though the House is not due to sit that day).
There is currently no statutory legal right to time off for fertility treatment.
The Bill would introduce the statutory right for an employee to take paid time off work to attend fertility treatment appointments and for connected purposes.
General view is that the Bill is unlikely to be taken forward.

Recent developments:

Pensions (Extension of Automatic Enrolment) Act 2023

Received Royal Assent on 18 September 2023.
Reduce the lower age limit for auto-enrolment (the stated intention is to reduce it to age 18)
Remove the Lower Earnings Limit for qualifying earnings (the stated intention is for contributions to apply from the first £1 of earnings)

Received Royal Assent on 18 September 2023.
The Bill will give employees on atypical contracts, including those on zero-hour contracts, a new statutory right to request a predictable working pattern.
A worker who lacks certainty in terms of hours they work, times they work, or a fixed term contract for less than 12 months, will be able to make a formal application to change their working pattern.
An employer will be required to notify the employee of their decision within one month of the request.
Acas is working on a new Code of Practice to provide clear guidance on making and handling requests.

Received Royal Assent on 24 July 2023.
Under current law, those on maternity leave, shared parental leave or adoption leave have the right to be offered a suitable alternative vacancy if available, before being made redundant.
The Act extends protection to pregnant employees and those returning from maternity leave and shared parental leave.
It provides limited information on the details of the protection; however it is expected to cover employees from when they tell their employer they are pregnant until six months after returning from maternity or adoption leave. Secondary legislation setting out precisely how the entitlement will work will be laid ‘in due course’.
The regulations are not expected to come into force before April 2024.

Received Royal Assent on 20 July 2023.
In response to the rapid change in working habits brought about by the Covid-19 pandemic, the Act will give employees a greater degree of flexibility over when and where they work.
The main change proposed is for the right to request flexible working to become a day-one right, removing the current 26-week qualifying period.
It is expected to come into effect in early 2024.

Received Royal Assent on 29 June 2023.
The EU Retained Law Act originally contained a very broad sunset provision which provided for all retained EU law to be revoked by the end of 2023, unless expressly transferred into UK law.
The Government has now reversed its position and only those laws specifically identified by the Government will be revoked.
At the same time, it proposed a (fairly minor) package of employment law reforms relating to the Working Time Regulations, TUPE, holiday pay and non-compete clauses.

Received Royal Assent on 24 May 2023.
The Act allows eligible employees whose new-born baby is admitted to neonatal care to take up to 12 weeks of paid leave, in addition to their maternity or paternity leave.
The right to neonatal care leave is a day-one right requiring no set length of service. The right to receive statutory neonatal care pay requires 26 weeks of service and average earnings of £123 a week minimum.
It is expected it will come into force around April 2025.

Received Royal Assent 24 May 2023.
Will create a new statutory day-one unpaid leave entitlement for employees who are caring for a dependent with a long-term care need of up to one week per year.
This is likely to be implemented in April 2024.