Further changes to employment law 2024

Guidance to employment law 2024

Optometrist with patient looking at spectacles

Following our previous updates regarding changes to the law on holiday pay, the Government has produced some guidance on Holiday pay and entitlement reforms from 1 January 2024 in this regard.

Some of the other points arising from caselaw have been written into UK law as of 1 January 2024.

Direct discrimination related to pregnancy, maternity and breastfeeding

Section 13(6) (b) of the Equality Act 2010 was amended as of 1 January 2024 to ensure that the position explained in caselaw remains ie that any unfavourable treatment of a woman related to "pregnancy or maternity" constitutes direct discrimination on grounds of sex.

Discrimination at work on grounds of breastfeeding is unlawful as a result of EU case law, and the Regulations amend the Equality Act 2010 to specifically provide the same protection ie it is unlawful under the protected characteristic of sex.

Section 18 of the Equality Act 2010 prohibits pregnancy and maternity discrimination in the workplace during the "protected period", being the duration of pregnancy and any statutory maternity leave period (or the period of two weeks after the end of pregnancy if there is no entitlement to statutory maternity leave).

Protection under the old legislation did not extend to unfavourable treatment occurring after the protected period because of the pregnancy and protected period. The legislation has been amended to reflect caselaw developments which provide that treatment received after the protected period because of pregnancy or pregnancy-related illness during the protected period will also constitute pregnancy and maternity discrimination.

Indirect associative discrimination

A new section 19A of the Equality Act enables a person without a protected characteristic to bring an indirect discrimination claim if they suffer a disadvantage alongside persons with a protected characteristic. This codifies law which was explored in caselaw and is a welcome change for employees.

Discriminatory statements about recruitment

A new section 60A provides that a general discriminatory statement made in connection with a relevant recruitment decision may constitute unlawful discrimination, even if there is no active recruitment exercise and no identifiable victim.

Definition of disability

A new paragraph (5A) is inserted into Schedule 1 providing that, in relation to the definition of disability, a person's ability to carry out normal day-to-day activities includes their ability to participate fully and effectively in working life on an equal basis.

Future changes are expected on 6 April 2024

Changes to the flexible working regime in England, Scotland and Wales

  1. Employees will have the right to make two flexible working requests every twelve months instead of one
  2. Employers will be required to consult with their employees before they reject a flexible working request
  3. The deadline for an employer to decide if they will approve or reject a flexible working request will be shortened from three months to two months (unless an extension is agreed)
  4. For requests made on or after 6 April 2024, employees will no longer need to have 26 weeks’ service ie the right to make the request will be a Day 1 right (ie a right arising from the first day of employment)

For more information see managing flexible working.

Changes to paternity leave and pay

The Paternity Leave (Amendment) Regulations 2024 make the following changes:

  • Employees will be able to take their two-week paternity leave entitlement as two separate one-week blocks (rather than having to take just one week in total or two consecutive weeks)
  • Employees will be able to take paternity leave at any time in the 52 weeks after birth (rather than having to take leave in the 56 days following birth).
  • Employees will only need to give 28 days’ notice of their intention to take paternity leave (reduced from the previous position that required notice to be given 15 weeks before the Expected Week of Childbirth (EWC)).

The Regulations are stated to apply in all cases where the EWC is on, or after, 6 April 2024.

Redundancy protection after maternity, adoption, shared parental leave

The draft Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 have been laid before Parliament which, if made, will extend redundancy protection during pregnancy and for the period of 18 months after the birth or placement of a child for those taking maternity, adoption or (more than six consecutive weeks of) shared parental leave.

Where the protected period covers pregnancy, the new rules would apply where the employee notifies their employer of their pregnancy on or after 6 April 2024. Where it relates to a period after relevant leave, the new rules would apply to maternity and adoption leave ending on or after 6 April 2024 and to a period of six consecutive weeks' shared parental leave starting on or after 6 April 2024.

New statutory right to unpaid carer’s leave

A new statutory right to unpaid carer's leave for employees in England, Wales and Scotland will come into force from 6 April 2024.

The regulations provide that an employee who has a dependant with a long-term care need (defined in section 80J (2) of the Employment Rights Act 1996) may take one week's unpaid leave to provide or arrange care in each rolling 12-month period.

The leave may be taken in either individual days or half days, up to a block of one week. The required notice period is either twice as many days as the period of leave required, or three days, whichever is the greater.

The notice does not need to be in writing and an employer cannot require evidence in relation to the request before granting the leave. An employer may waive the notice requirement.

An employer cannot decline a request altogether but may postpone carer's leave where all of the following apply:

  • The employer reasonably considers that the operation of the business would be unduly disrupted if it allowed the leave during the requested period
  • The employer allows the employee to take a period of carer's leave of the same duration, within a month of the period initially requested
  • The employer gives the employee a written notice within seven days of the initial request, setting out the reason for the postponement and the agreed dates on which the leave can be taken.

During the period of carer's leave, an employee is entitled to the benefit of all their terms and conditions, apart from the right to pay, and will remain subject to all of their usual obligations.

As with other types of statutory leave, an employee will be protected from detriment and dismissal attributable to the fact that they took or sought to take carer's leave.