Employment review of 2023

Ms Diaz wears a lot of soft cashmere as she struggles with the inevitable snow in a picturesque Cotswold village and falls for Jude Law. Ms Winslet wins us over with her English rose complexion and winsome ways in California as she nurses her broken heart, helped along by Jack Black. As we look back at our employment law and case developments over 2023, if I look through particularly Christmas-tinted glasses there are a lot of similarities with this schmaltzy Hollywood offering.

Let’s start with the obvious – holiday pay (clearly the inspiration for this update!)

We have had a year bookended by holiday accrual and pay announcements and provisions. In January 2023 the Government announced a consultation on the accrual of holiday pay – its response to the Harpur Trust case the preceding summer and the ‘outlawing’ of the 12.07% calculation of holiday under the Working Time Regulations 1998. The messy entanglements of Cameron and Jude in The Holiday are nothing compared to the messy relationship between employer and holiday pay accrual. However, all then went quiet until 8 November and we received news that regulations had been drafted (The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023) and the 12.07% accrual rate would be making a comeback for two new definitions of workers. Those who are irregular-hours and part-year. The return to this simpler and arguable fairer calculation is a welcome one, as is the inclusion of rolled-up holiday pay within the Working Time Regulations. However, the legislation is not as clear as it could be, referring to holiday accrual in hours but maximum accrual in days, and the definitions are a little ‘fuzzy’ around the edges. The regulations are in force from 1 January 2024, however, the holiday provisions do not take effect until holiday years which start after 1 April 2024.

For more information on this do read and listen to our updates from this year:

• The Government response is out and it looks like 12.07% is on the way back in
• Sick of reading about holiday entitlement? Now you can listen instead!
• Holiday pay case – the pensions implications
• 12.07% calculation… We just want you back for good

Immigration

Despite Ms Diaz and Ms Winslet galivanting across the Atlantic to live each other’s lives no immigration issues arose. There is nothing like illegal working, shortage occupation requirements and a recruitment crisis to take the sparkle out of a Hollywood hit! The topic has taken centre stage this year both politically and for employers in many sectors where migrant workers are the only solution to their recruitment issues. Immigration fee increases were announced in August and then several weeks ago the new home secretary announced new measures to slash net migration. The issue is a political hot potato so expect some ‘potato throwing’ as we move into election season.

• 4 October – immigration fees will rise
• New measures announced to slash net immigration – How it affects the health and social care sector
• Prevention of illegal working – new draft code and starting fine of £45,000 per worker

On Tuesday 16 January 2024, we are holding a webinar on international recruitment. Please click here to register.

Rights and respect

Hollywood loves a good culture clash; look how dowdy the Brits are! Look how flashy the Americans are! Repetitive themes in our movie of choice. Amusing it may be but rights and respect for different cultures/beliefs/genders have again been a strong theme in our news and updates this year with serious themes for the future. For those who attended our employment law update in October, we looked specifically at this in our morning session; what does it look like to create a culture where staff are confident their rights will be recognised and respected but also encouraged to do the same for others? Here is a recording of the session for those who couldn’t attend.

We have had useful judicial guidance on what it means to take all reasonable steps to prevent discrimination in the workplace. In the case which is the subject of our blog, the judge reminded employers that training should be up to date and policies available. We have a range of relevant training courses, general and bespoke, for large or small groups, to keep your staff up to date so do contact us for more details of these.

Managing employees with hidden disabilities, for example, neurodivergent employees is a part of this theme. In our autumn update as well as our online blogs and ebriefings we have looked at the challenges both for these employees and their employers as we recognise more willingly the contribution that neurodivergent employees can bring to the workplace.

In 2024, we will be holding a webinar on managing neurodivergent employees in the workplace. It will be a practical hour-long session on what employers can do to provide a working space where these employees can thrive and contribute their skills. Click here to register your interest.

New legislation

As Cameron Diaz struggled to her Cotswold cottage, the dumping of snow that followed her was both UK uncharacteristic and not entirely welcome! A little like the uncharacteristic ‘dumping’ of new legislation we have encountered in the last couple of months. Not since the Covid-19 onslaught of legislation have we had so many new laws to get our heads around. After several years of waiting for an employment bill, as promised back in 2018/2019 this year the Government chose not to introduce a bill themselves but either to support various private members’ bills or introduce piecemeal regulations on a variety of different issues (cue our holiday pay changes). Next year will be a busy one with changes such as:

• Carer’s leave, day one right to flexible working request, extended protection from redundancy for those on maternity/adoption and shared parental leave;
• Workers (predictable work and conditions) Act 2024
  • Workers on unpredictable contracts (including those on fixed-term contracts of less than a year) can request more predictable hours.
• Worker Protection (amendment of Equality Act 2010) Act 2023
  • This will introduce a duty on employers to take reasonable steps to prevent sexual harassment in the workplace although we do not have the promised details or guidance. It will also give employment tribunals the power to uplift sexual harassment compensation by up to 25% if an employer is found to have breached this new duty. The commencement date is October 2024.
• Neonatal Care (leave and pay) Act 2023
  • This Act will provide additional support to employees who have babies requiring specialist neonatal care post-birth. Eligible parents will be able to take up to 12 weeks of paid leave in addition to other leave entitlements such as maternity and paternity leave. The amount of pay is likely to be the same as the prescribed rate of statutory maternity. The new leave and pay entitlements are expected to come into force in April 2025, with the details of the arrangements expected to be set out in regulations well in advance of that date (i.e. before the expected general election).
• Professionalisation of housing managers
  • These expected regulations (no sign of them yet) are expected following the Social Housing (Regulation) Act 2023 receiving Royal Assent in July 2023. In February 2023, it was announced that as part of the drive to protect residents and raise standards in housing social housing provision managers employed in the sector must have (or be working towards) certain professional qualifications. These include senior housing executives and senior housing managers. The announcement has such important implications for the sector, not least the cost and availability of this training, so it is a little frustrating to have heard nothing further. For more details on this do listen to our podcast on the issue.

Looking ahead to 2024

The future in Hollywood movies is often a road less travelled, so we never get to see our intrepid life swappers years down the line. Not so much for us with our feet grounded in reality; looking ahead to 2024 there will be much to keep us occupied.

The new legislation we have covered in this update will start to take effect and with it the issues relating to definitions and entitlement. We will also see a general election before the year is out and the real potential for a change in Government. If this happens it could see a massive swing in the current direction of travel for employment legislation and policy. The current Government have been content to make some changes as we have seen but these are piecemeal when compared to the dramatic changes a future Labour Government are promising. We will know more once the election is announced, and manifestos produced. For now, we know from their Green Paper entitled ‘New Deal for Working People’ that followed is planned (not an exhaustive list);

• single status of worker to be created;
• day one entitlement to rights such as unfair dismissal, SSP and parental leave;
• outright ban on zero-hours contracts;
• outlaw fire and rehire practices;
• day right to flexible working – not just right to request and
• right to regular contracts for workers who work more than 12 hours a week.

It’s going to be a busy year so make sure that you subscribe to receive our insights – the latest news, legal ebriefings, events, webinars, podcasts and training in sectors that matter to you. You can also sign up to our blog covering a range of hot topics and of-the-moment employment issues.

In the meantime from all of the team here at Anthony Collins, we wish you a Happy Christmas and a Happy (and probably very busy) New Year!

For more information on any of the issues raised in this round-up, please contact our employment and pensions team.

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