Some Key 6 April 2024 Employment Law Reminders

As we head into spring after what has seemed to be the longest winter ever and hopefully start to see some sunshine instead of rain, a brief reminder of some of the changes coming into force on the 6 April 2024. Definitely time to have a quick policy check and update…..

Flexible Working

Setting aside the challenges that many employers continue to have with individuals looking for ever increased flexibility, flexibility is very definitely here to stay and can be a very positive thing. When the Employment Relations (Flexible Working) Act comes into force (6 April 2024) the right to request flexible working will be a day one right. Prior to that date it is / was (depending on when you read this) only available to employees with at least 26 weeks continuous employment. A draft of the ACAS Code of Practice on Requests for Flexible Working was initially published on 11 January 2024, giving employers time to plan and update policies – so if you haven’t quickly got to that point on the to do list, probably one to move to the top now……

With an increasing number of requests seeming to be inevitable, employers do need to be aware that there are a number of changes to the statutory flexible working request procedure. Although the code does acknowledge that flexible working will not be suitable for every role or every organisation, employers are being encouraged to have an open mind and consider building in flexibility as the starting point rather than something to be resisted because managing traditionally, face to face, is perceived as easier. The forward to the Code emphasises this and encourages employers to be open minded, have early conversations, explore alternatives where a request cannot be granted in the original format and give reasoning when requests are rejected so that employees can understand why their request has been declined – and inevitably submit a further application that is perhaps more likely to be granted.

Key points:

The legislation makes the right to request flexible working a day 1 right.
The code splits obligations between “must” (required) and “should” (good practice) – and is worth a read.
Consider updates to your existing policy framework and perhaps try to anticipate roles where flexibility may be suitable, and indeed those where perhaps it will not be (assuming there are applicable ERA statutory reasons).
Employers have 2 months from the date of receipt to deal with the request (in full – including appeal) unless extended by agreement. That time is going to fly, so whilst each request will need to be considered on its merits giving thought to roles where flexibility may and may not be suitable now may give you a jump start.
Whilst the ERA does not include a statutory right to appeal it is clear from the Code that appeals are regarded as good practice and should be considered.
Employees may make 2 requests in any 12 month period but only one can be “live” at any one time.
Employers must consult the employee before reaching a decision, unless that decision a simple “yes”.
Employers must be reasonable and can still only reject for one of the business reasons set out in the ERA 1996.
If the request cannot be granted the employer should consider (in consultation with the employee) alternatives.
Obviously employees must not be subject to dismissal or detriment because of the request.

Essentially it is more important than ever to have a clear policy and make sure managers know what to do should they receive a flexible working request.

Holiday Pay

On 1 January, Employment Rights (Amendment, Revocation and Transitional Provisions) Regulations 2023 came into force (snappy title that it is) and whilst it did not bring in all of the previously touted changes, there are some key amendments worthy of note. Particularly the introduction of new definitions of irregular hours worker and part-year worker, with new methods of calculating holiday pay for those individuals for holiday years starting on or after 1 April 2024. The changes mean that for irregular hour / part year workers holiday will be calculated in hours, which will be a relief to so many employers. Holiday will accrue on the last day of each pay period at the rate of 12.07% of the actual hours worked.

Moving forward employers will have 2 options:

Paying holiday when it is actually taken (as employers do for permanent fixed hour workers) – if this method is used the employer will need to calculate the average amount of weekly pay over the reference period (52 weeks before the calculation date) and pay accordingly.
Pay rolled up holiday – by way of an uplift of 12.07%. Essentially multiplying the hours worked by the hourly rate to find the applicable rate of pay during the pay period, dividing that by 100 and then multiplying that answer by 12.07.

There is a helpful calculation guide at Holiday pay and entitlement reforms from 1 January 2024 – GOV.UK (www.gov.uk)

It is also worth a reminder that a week’s pay for holiday pay purposes includes the following principles which have evolved through law in recent years:

Overtime pay regularly paid to the worker in the 52 week reference period prior to the calculation date.
Long service payments, or payments relating to professional or personal status.
Commission payments which are intrinsically linked to the tasks the worker is contractually required to perform.

If your leave year is calculated on a calendar basis year the changes won’t bite until 1 April 2025 and although one can only imagine how much confusion that is going to cause, it does give time for policies to be updated, contracts checked and appropriate consultation undertaken to vary contractual terms.

Introduction of Carer’s Leave

The long-awaited Carer’s Leave Act 2023 will come into force on 6 April this year. The new regulation aims to provide much needed legislative support and protection for carers at work. Amongst other entitlements, eligible employees will have the right to take up to one week of unpaid leave in a 12-month period to care for a dependant in the UK. This leave can be taken in consecutive days or spread out over the year.

To qualify for carer’s leave under the Act, an employee must:

have a dependant with a long-term care need;
require time off work to provide or arrange such care; and
not exceed any existing statutory entitlement to carer’s leave.

A ‘dependant’ is pragmatically defined under Section 80J of the Employment Rights Act 1996 as an immediate family member of an employee (i.e. a spouse, partner, child, or parent), a person living in their household or someone who reasonably relies on them to provide or arrange care. The definition of ‘long-term care need’ is also fairly wide in scope and includes: physical or mental illness requiring care for more than 3 months, a disability classified by the Equality Act 2010, or illnesses connected with old age.

Employees will be required to give specific advanced notice of their intended leave, the amount of which will depend on their regular working patterns. In so far as possible, employers are obliged to accommodate such requests or work with the employee to make alternative arrangements.

What steps should you be taking as an employer?

The Carer’s Leave Act will take immediate effect on 6 April and apply to any action or inaction by a UK employer.

Employers may wish to take certain preparatory steps ahead of the upcoming changes by:

Training management on the new form of leave, particularly focussing on how to navigate conversations regarding requests for leave;
Reviewing existing policy documents, such as employee handbooks, to ensure compliance; and
Making sure existing HR systems can purposefully record and track unpaid carer’s leave.