Welcome back Sophie!
We’re delighted to welcome Sophie Wahba back from maternity leave. Her contact details remain the same and she is looking forward to reconnecting with her clients, old and new.
The Equality Act 2010 (Amendment) Regulations 2023
The Equality Act (Amendment) Regulations 2023 seeks to modify the Equality Act 2010 and came into force on 1 January 2024. Practically, these Regulations protect against discrimination which would otherwise have ceased to apply following Brexit. In summary, the Regulations strengthen protection in relation to discrimination in the following ways:
- The legal definition of disability has been extended.
- Indirect discrimination by association has been extended to cover individuals who do not have the relevant protected characteristic, but who suffer similar disadvantages to those who do hold the protected characteristic if the disadvantage is due to an employer’s policy, provision, or criterion.
- A “single source” test for equal pay comparators has been adopted into UK law.
- Protection against direct discrimination has been extended.
- Less favourable treatment on the ground of breastfeeding will now be classed as direct sex discrimination.
- More favourable treatment on the grounds of maternity is permitted.
- Additional protection will be given to employees after they return from maternity leave in relation to certain types of unfavourable treatment.
Legislation due to come into force from 6 April 2024 onwards
Flexible working: day-one right
The Flexible Working (Amendment) Regulations 2023 remove the current 26-week qualifying period to make a flexible working request. In other words, employees will now have the right to make a flexible working request from the first day of their employment, rather than having to wait for 26 weeks. In addition to this day-one right, employees can make two flexible working requests in any 12-month period, and they no longer have to make a business case for their request.
Employers, in turn, must respond to an employee’s request within two months (rather than three) and must consult with an employee before rejecting a request. If you haven’t already amended your flexible working policy, now is the time to do it.
Protection against redundancy extended to include pregnant employees and those returning from family related leave.
Under current laws, employees who are on maternity leave, shared parental leave or adoption leave are already offered special protection against redundancy. The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 extends this protection to also cover pregnant employees and employees who have recently returned from maternity, adoption, or shared parental leave.
Pregnant employees will be protected from redundancy from the time they inform their employer of their pregnancy until 18 months after childbirth. Those on adoption leave and shared parental leave are also protected for 18 months from the date of their child’s placement or birth.
Employers are advised to review their redundancy and pregnancy & maternity policies in advance of the anticipated changes, and those considering or planning a restructure in 2024 will need to think through the implications of the new legislation and prepare for any practical issues that may arise.
Unpaid carer’s leave
From 6 April 2024, employees who are carers for dependants with (defined) long-term care needs will be entitled to take one week’s unpaid leave per year. This will be available to all employees from the first day of their employment. The leave can be taken as a block or as individual days within a 12-month period.
There are minimum notice periods to be adhered to and although employers cannot decline a request for leave, they can postpone it within certain parameters. Employers are strongly encouraged to update their absence and leave policies to reflect this change as a matter of priority.
Paternity leave
A draft version of the Paternity Leave (Amendment) Regulations 2024 has just been published and will come into force on 8 March. It will allow fathers and partners, where the expected week of childbirth or placement of adoption is after 6 April 2024, to take their leave in two non-consecutive blocks of a week each rather than two consecutive weeks (or one week only) as is the case now. This leave can also be taken at any point in the 52 weeks after birth, rather than the first eight weeks after adoption or birth, and the notice period for alerting employers of their intention to take leave has been reduced from 15 weeks before the child's due date to 4 weeks (other than domestic adoption which remains as within seven days of being matched with a child).
Protection from harassment
The Worker Protection (Amendment of Equality Act 2010) 2023 is due to come into force in October 2024. This will place a positive duty on employers to take reasonable steps to protect their employees against sexual harassment. The purpose of this is to make workplaces a safer environment for all workers.
If employers are found to have breached this new duty, Employment Tribunals will have the power to increase compensation by up to 25%.
Fire and rehire: Statutory Code
The government has confirmed that its response to last year’s consultation on its proposed Code of Practice, designed to regulate the ‘firing and re-hiring’ of staff, will be published, along with a formal version of the Code, in the Spring. The Code is designed to cover the steps employers need to take when consulting with employees over proposed changes to their employment contracts or as part of a redundancy exercise. Failure to follow the Code correctly could result in a 25% uplift to a tribunal award.
Lunch and Learn
If you haven’t yet made any new year resolutions, make a start by signing up for our ‘Lunch and Learn’ sessions. An informal, flexible way for a group of up to eight HR professionals to keep up to date with the latest developments in employment law and HR matters, our Lunch and Learn sessions enable participants to ask direct questions about the topics covered in the context of their own workplace. We can run these sessions either at our office or at your premises and there is a discount for YEAR members. For more information and how to book, click here.
Ignite Portal
For those of you who have signed up for the Ignite Portal, two new reports have been added: the Employee Document Report which gives you a full view of which documents have been uploaded under which employee’s name, and the Employee Feedback Report which gives senior managers a more detailed picture of any feedback left on an employee’s profile. Also, don’t forget to add your bespoke Bank Holiday lists for 2024. For more information, please contact Kash Dosanjh or Gemma Clark from our Employment team.
Employment guides
In response to regular requests from clients to help them resolve common HR issues caused by procedural errors that have proved time-consuming and costly, we have developed a set of step-by-step templated guides to help businesses follow best practice and in turn avoid unnecessary Employment Tribunal claims. To date, we have developed four guides:
- Pre-Employment Guide (including the Application and Interview Process, plus Pre-Employment Checks)
- Sickness Absence Guide
- Capability Guide
- Disciplinary Procedure Guide
Please contact a member of the team for more information and prices.
Case Update
Deliveroo riders are self-employed contractors
The latest legal challenge by the Independent Workers Union of Great Britain (IWGB) to try and establish its right to bargain collectively on behalf of a group of Deliveroo riders has failed. The Supreme Court has upheld the decision of the Central Arbitration Committee (CAC), which had ruled that Deliveroo riders were genuinely self-employed, rather than workers employed by Deliveroo, and thus not entitled to union representation. The Union had also sought a judicial review based on Article 11 of the ECHR relating to the freedom of assembly and association which was dismissed in the High Court, a decision subsequently upheld by the Court of Appeal.
The Supreme Court also confirmed that as Deliveroo riders did not fall within the International Labour Organisation’s definition of an employee i.e., they did not have an employment relationship with Deliveroo, they were not entitled to a right of freedom of association or to form, or join, a trade union. The Court found that the agreed working arrangements between Deliveroo and its riders reflected the reality on the ground. In addition to the absolute and uncontested right to substitute someone else to deliver their orders in their stead, riders were not obliged to accept a minimum number of orders, they could work as much or as little as they pleased, and they were free to work for competitors.
As has been noted in other cases concerning employer/worker relationships within both the gig and wider economy it is the reality of the arrangements on the ground that hold the key to determining a person’s employment status. In this case, both the contracts and the actual working conditions made it clear that the Deliveroo riders were self-employed and not workers.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
