Under the Neonatal Care (Leave and Pay) Bill, each parent will each be able to take up to 12 weeks’ paid leave to enable them to spend more time with their baby if it is receiving neonatal care in a hospital or other agreed care setting due to being born early or being sick. The right will apply to parents of babies who are admitted into hospital in the first four weeks of their life, and who have a continuous stay in hospital of seven full days or more. Each parent will be able to take a maximum of 12 weeks’ leave. This right would be permitted for those with 26 weeks’ service who earn above the minimum pay threshold, and they will be entitled to pay during this period of leave at the current statutory rate.

This entitlement is in addition to other leave entitlements, such as maternity and paternity leave.

The current position is that sexual harassment in the workplace is unlawful, and employers and individuals can be found liable in claims brought in the employment tribunal. However, employers can avoid being found vicariously liable for harassment committed by their workers if they can show that they have taken “all reasonable steps” to prevent such harassment from occurring. The Worker Protection (Amendment of Equality Act 2010) Act introduces a new legal obligation to take reasonable steps to prevent sexual harassment of their employees.

Tribunals will also have the power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached this new duty.

The Employment (Allocation of Tips) Bill will make it unlawful for businesses to hold back tips and service charges from workers. Employers will have to distribute tips in a fair and transparent way and keep records of how tips have been dealt with. Workers will have a new right to request more information about their tipping record and such requests must be responded to within 4 weeks. Businesses will also have to have a written policy on dealing with tips and workers will be able to bring employment tribunal claims if their employer has not dealt with tips correctly.

A new statutory code of practice will also be developed, to replace the existing voluntary code, to provide advice on how tips should be distributed.

The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 bring in new rules permitting employers to consult directly with staff affected by TUPE, rather than electing representatives. The new rules will apply to:

• Businesses with fewer than 50 employees; or
• Transfers affecting fewer than 10 employees (regardless of the size of the employer).

This new measure will allow businesses which satisfy these criteria to consult directly with affected employees and reduce the complexities surrounding the election of representatives. At present, only micro-employers with fewer than 10 employees can inform and consult affected employees directly in respect of a transfer of a business or service provision change.

The Government consulted on potential Carer’s Leave in 2020 and published their response to that consultation in September 2021. The response confirmed that the Government will introduce legislation that will provide a right to up to five working days of unpaid leave for employees with long-term caring responsibilities. This right would be from ‘day one’ of the employment.

Eligibility will depend on the employee’s relationship with the person for whom they provide care. The leave will be a “day one” right, meaning there is no minimum service requirement to take advantage of it. Carer’s leave can be taken flexibly either as full days or half days, up to a block of one week per year. The employee must give notice that is twice the length of the time being requested as leave, plus one day.

The aim is to increase the uptake of fathers taking paternity leave, by taking forward the following measures:

• fathers or partners may split their leave into two blocks of one week. Currently, only one block of one or two weeks’ leave can be taken.
• fathers or partners may take their leave and pay at any point during the first year following the birth or adoption of their child, instead of only within the first eight weeks.

The new measures will require an employee to give notice that they intend to take leave 15 weeks prior to the expected week of childbirth or placement for adoption, and then four weeks’ notice of dates prior to each period of leave.

Under existing law, employees on maternity leave have priority for suitable alternative employment in a redundancy situation. As it stands, it is only during maternity leave that women are prioritised in this way. Under the Protection from Redundancy (Pregnancy and Family Leave) Bill, the protected period would be extended to run from when a woman formally notifies her employer of her pregnancy up until 18 months after she commences maternity leave. Those adopting a child or taking shared parental leave will be similarly protected.

This is a long-anticipated reform, which was mentioned in the 2019 Queen’s Speech. More radical proposals (prohibiting dismissal during pregnancy and maternity leave as seen in some European countries) were set out in a different Private Members’ Bill but failed due to lack of government support. This latest Bill, however, looks likely to make the cut.

The protected period will be significantly extended with pregnant employees in a priority position for around two years.

The Employment Relations (Flexible Working) Act 2023 has completed its passage through Parliament and now awaits Royal Assent. There are several things it changes about the current flexible working regime and several (possible more notable) things that it does not. In terms of what it does change:

• Employees will be able to make two flexible working requests in any 12 month period.
• Requests have to be dealt-with by employers within 2 months of receipt of a request if no extension is agreed.
• Employers are not able to refuse a request until they have ‘consulted’ with the employee (although there is no legislative de minimis requirement of what that ‘consultation’ needs to include).
• Employees will no longer, in their application, have to explain what effect the employee thinks agreeing to the request would have and how any such effect might be dealt with.

The Flexible Working (Amendment) Regulations 2023 remove the requirement that an employee must have 26 weeks’ service in order to be able to make a request for flexible working. The change makes the right to request flexible working a Day One right. This new right will come into effect for flexible working requests made on or after 6 April 2024.

The government have introduced a number of reforms in this area, which will apply to holiday leave years starting on or after 1 April 2024.

The Government launched a consultation on holiday entitlement for part-year and irregular hours workers. This followed the Supreme Court’s decision in Harpur Trust v Brazel, which provided that holiday entitlement for permanent part-year workers should not be capped at 12.07% of their annualised hours or pro-rated so that it is proportionate to that of a full-time worker – even though this would entitle part-year workers to a higher holiday entitlement in comparison to part-time workers who work the same total number of hours across the year.

Rate of Accrual: Holiday entitlement for irregular hours / part-year workers can be calculated at the rate of 12.07% of hours worked in the relevant pay period. This will be a very significant change for those of you who engage workers of this nature.

Rolled Up Holiday Pay: will be permissible for part year and irregular hours workers only i.e. paid on top of a worker’s normal hourly rate at the time they perform the work rather than when they are on holiday.

Carry Over: legislation will mirror current EU case law which allows workers to carry forward their entitlement to four weeks’ leave to the next holiday year where they have been prevented from using it due to sick leave (to be used within 18 months of the end of the holiday year in which the entitlement accrued). In addition, if a worker cannot take their holiday entitlement due to family leave, they will be entitled to carry forward their whole 5.6 weeks’ entitlement to the next holiday year.

Covid Carry Over: emergency legislation permitting workers to carry forward leave for up to two holiday years, where they were unable to take this leave because of Covid, ended on 1 January 2024. However, staff will have until 31 March 2024 to use any leave they have carried over under these rules.

Recording Requirements: legislation clarifies that employers will not be required to keep records of each employee’s daily working hours in order to comply with the record keeping requirements of the Working Time Regulations.

Fines payable by employers who employ illegal workers will increase. The fine for a first breach will increase from £15,000 to £45,000 per illegal worker. For repeated breaches, the fine will increase from £20,000 up to £60,000.

The new rate of the Real Living Wage was announced, and is now in place. Employers committed to paying this voluntary amount however have six months to increase employee pay; this must be done by 1 May 2024.

The rates are:

• For workers in London: up from £11.95 to £13.15 per hour
• For workers outside of London (including Scotland/Wales/Northern Ireland): up from £10.90 to £12 per hour

6 April 2022 sees new regulations coming into force which extend the duty on employers to provide suitable personal protective equipment (PPE) to all workers, not just employees where there is a health and safety risk to the worker in the work they carry out for the employer. Employers will also be prohibited from charging workers for any PPE supplied.

In 2015, exclusivity clauses were made unenforceable against workers on zero-hour contracts.

The government is now proposing to extend the ban on exclusivity clauses for workers whose earnings are below £123 per week (£123 being the Lower Earnings Limit), estimated to be 1.5m workers throughout the UK. That represents about 13 hours’ work per week at minimum wage.

Section 1 Statement

The main change is that the right to a section 1 statement will become a ‘day one’ right. This means that all new employees will be entitled to receive a written section 1 statement on or before their first day of employment (only limited information can be provided after this point). The rules about what must be included in the Section 1 Statement also changed. This means there is less opportunity to refer out to another document such as an Employee Handbook. The aim of the changes around the Section 1 Statement are to increase transparency between workers and employers as well as improving the enforcement of employment rights.

Parental Bereavement Leave and Pay

The new law will support those whose child dies when under the age of 18. Under existing legislation employees only have a day-one right to take a ‘reasonable’ amount of unpaid time off to deal with an emergency involving a dependant, including making arrangements following a death. As a result what constitutes a ‘reasonable’ period varies between workplaces.

Reference Period for Calculating Average Pay

This increase is to ensure holiday pay more fairly reflects average pay for workers whose pay varies across the year e.g. casual and seasonal workers.

A few important things to note:

• If a worker has not been in employment for 52 weeks, use however many complete weeks of data they have.
• To prevent having to look back more than 2 years to obtain 52 weeks’ of pay data, a limitation/cap of 104 weeks was also introduced.
• The reference period must only include weeks for which the worker was actually paid. It shouldn’t include weeks where they didn’t work/didn’t get paid.
• ‘A week’ starts on a Saturday and ends on a Sunday (unless workers are normally paid differently to this e.g. Wednesday to Tuesday).

Remember, workers are entitled to a week’s pay for each week of statutory leave that they take.

National Insurance on Termination Payments

This means that payments made in lieu of a notice period will be treated as earnings and employers will no longer be able to utilise use the £30,000 income tax exemption for any such payments even if there is no PILON in an employee’s contract.

The tax exemption for payments up to £30,000 made in connection with termination of employment (such as redundancy) will remain in place, but payments above that amount will be subject to both income tax and employer NICs.

Changes to Off-Payroll Working in the Private Sector

T-levels

A key part of the T-Level programme is a mandatory 45-day work placement. Currently most employers (71%) and training providers (74%) offer work placements of one to two weeks for 16 to 19 year olds. Only 8% of employers provide placements of the duration required for T-Levels.

Britian Leaves the EU (Brexit)

It also looks likely that EU nationals who are already resident in the UK will be allowed to stay. Future business-related migration, however, could be harder and may be brought into line with the process of bringing in employees from outside the EU. In the immediate aftermath of the Referendum, the government restated its commitment to science and research. This suggests that different immigration rules may be created to allow the continued free movement of scientists and academics from the EU.

If you employ EU nationals more generally, consider the potential impact of this on both your current and future employees. Put in place a robust workforce and contingency plan, particularly for key roles. If any grant funding agreements refer to individuals who have recently arrived from the EU as ‘key personnel’, seek to renegotiate.

Our advice is not to preempt any major changes to your employment contracts and handbooks until the post-Brexit employment landscape becomes clearer. It is probable that, following the publication of the Taylor Review later in 2017, there will be a more active debate on how to engage people in the workplace, so this will be the time to review your employment models and assess the likely impact of employment law changes.

In the very short term check your employment policies and procedures are fully up to date.

Payslips For Time-Paid Employees to State Number of Hours Being Paid

The Order requires payslips for time-paid workers to state the number of hours being paid, either as an aggregate number of hours or as a separate figure for different types of work (or rate of pay).

The Order will come into force on 6 April 2019.

This legislation follows the Government’s response to the Taylor Review, published on 7 February 2018, and is the first of a number of changes the Government has committed to making to clarify employment rights.

It is important that employers of time-paid workers ensure that their pay slips are correct and that from 6 April 2019 payslips for time-paid workers state the number of hours being paid (if they do not already).

Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018

The Real Living Wage

The Real Living Wage is a voluntary rate of pay payable to anyone aged 18 or over.

Injury to Feelings Compensation in Discrimination Claims

March 2018

The ‘bandings’ are revisited now in line with inflation, and the new bands will apply to any discrimination claims presented on or after 6 April 2018. The Vento bands shall be increased as follows:

The next review will be in March 2019.

Tax on Termination Payments

April 2018

The tax exemption for payments up to £30,000 made in connection with termination of employment (such as redundancy) will remain in place, but payments above that amount will be subject to both income tax and employer NICs.

Auto-Enrolment

April 2018

Gender Pay Gap Reporting

April 2018

Employers will be obliged to release information relating to employee pay and bonus pay, as well as information on the number of men and women in each quartile of the organisation’s pay distribution.

Gender pay gap regulations for private and voluntary sector employers are still in draft form but the deadline for the first report is expected to be 4 April 2018, based on pay and bonus data from 2016/17.

Reporting requirements for public-sector employers are expected to mirror private-sector timelines and requirements.

General Data Protection Regulations

25 May 2018

In January 2012, the European Commission announced its intention to reform the data protection rules on the basis that reform is necessary to strengthen online data protection rights and boost Europe’s digital economy by harmonising data protection rules across the European Union (EU). The Commission proposed that the existing Directive would be replaced by a Regulation, which means that it would be binding on every member state and would not need to be transposed into national law.

The Regulation harmonises data protection law across the EU and extends it to include all foreign companies processing the data of EU residents. The Regulation:

• provides for the creation of a single data protection authority instead of the supervisory authority of each member state, and the creation of data protection officers for all public authorities and companies processing high volumes of data;
• provides for the imposition of a fine of €20 million or 4% of global turnover, whichever is greater;
• requires the positive consent of individuals to have their data processed;
• provides for the notification of breaches to the data protection authority; and
• extends the special categories of information, such as trade union membership and religious belief or political opinion, to include information relating to health.

On 7 August 2017, the Government published a Statement of intent: A new Data Protection Bill – our planned reforms. It confirms that the Data Protection Bill will repeal the Data Protection Act 1998. The Bill will introduce a new data protection regime, including by making changes to the definition of “personal data” and the rules on consent, and bring data protection rules in the UK into line with the requirements of the GDPR. The Bill will utilise the derogations contained within the GDPR, including the derogations that permit the Government to legislate on the processing of criminal conviction and offence data and in the area of automated individual decision-making.

Real Living Wage Rates

5 November 2018

The Real Living Wage is a voluntary rate of pay payable to anyone aged 18 or over.

On 5 November 2018 the Real Living Wage rates will be increased from:

• UK £8.75 to £9.00; and
• London £10.20 to £10.55

State Pension Age Rises to 66 Years

December 2018