Welcome to your quarterly employment law bulletin from Roots HR.
This quarter we update you on…
Get HR fit for 2024
2024 is bringing with it a number of changes in employment law. To get ready for the changes, you can register for Roots HR’s free webinar on 17th January 2024 here.
Changes to holiday pay and entitlements for part-year and irregular hours workers –
changes to law may mean a return to previous practices for some employers. For holiday years commencing on or after 1st April 2024 part-year and irregular hours workers will be entitled to 5.6 weeks annual leave per year, calculated according to actual hours worked, using the 12.07% accrual method. Employer’s may choose to pay accrued holiday in every pay period at the ‘normal’* rate of pay, calculated as 12.07% of the actual hours worked.
* This could include regular payments, such as overtime, regular bonuses and commission.
12.07% is the proportion of statutory annual leave in relation to the working weeks of each year, for example, 5.6 weeks of statutory annual leave divided by 46.4 working weeks of the year.
If employers want to move to this approach they should check the contract of employment for affected employees, as this change to holiday entitlement and pay may require a variation to the contract.
Holiday carry-over –
The 5.6 weeks of annual leave entitlement for a full-time employee is made up of 4 weeks of “statutory” leave and 1.6 weeks of “additional” leave. Regarding carry-over of annual leave, with effect from 1st January 2023 the following carry-over of the 4 weeks statutory leave is permitted in law:
- if it is unable to be taken due to sickness, as long as it is used within 18 months.
- if it is unable to be taken due to the employee taking statutory leave (e.g. maternity, adoption and shared parental leave) it is carried over to the following holiday year.
- if the right to paid leave is not recognised, then it carries over until one year has elapsed where holiday is taken and paid correctly.
- if the employer doesn’t give reasonable opportunity to take leave or encourage it, then it carries over until one year has elapsed where holiday is taken and paid correctly.
- if the employer doesn’t warn employees of the risks of losing their holiday entitlement at the end of the holiday year, then it carries over until one year has elapsed of it being taken and paid correctly.
The additional 1.6 weeks per year will carry-over in more limited circumstances: where an employee is absent due to sickness (provided it is taken within 18 months) and where an employee is absent on statutory leave. There is also the possibility of agreeing carry-over of this portion of leave by way of a relevant agreement made with the employee.
Changes to flexible working for any requests made on or after 6th April 2024 –
The right to request flexible working becomes a day one right (currently an employee must have at least 26 weeks service). When requesting flexible working employees will no longer have to explain what impact they think request will have on employer and how any such effect should be dealt with.
Employers will have 2 months to deal with a request (3 months currently) and, if an employer is considering refusing a request, they will have to consult with the employee first.
Employees will also be able to make 2 requests for flexible working within a 12-month period, this is currently limited to only 1 request within a 12 months.
The introduction of Carer’s Leave –
From 6th April 2024 carers will be able to request up to 1 week’s unpaid leave in a 12-month period. The right applies to employees who have a dependant with a long-term care need and those who want to be absent from work to provide or arrange care for that dependant. Time can be taken in consecutive, or non-consecutive, half-days or full days.
Extension to protection against redundancy for pregnant employees and new parents –
Current protections are extended as follows:
- For maternity – the protected period will cover pregnancy, alongside 18 months from the first day of the estimated week of childbirth. The protected period can be changed to cover 18 months from the exact date of birth, if the employee gives the employer notice of this date prior to the end of maternity leave.
- For adoption – the protected period will cover 18 months from placement for adoption.
- For shared parental leave – the protected period will cover 18 months from birth, provided that the parent has taken a period of at least 6 consecutive weeks of shared parental leave. This protection will not apply if the employee is otherwise protected under maternity or adoption above.
The extension to the protected period to cover pregnancy applies where the employer is informed of the pregnancy on, or after, 6 April 2024.
The extension of the protected period, to cover a period of time after leave has been taken, will apply to any maternity and adoption leave ending on, or after, 6 April 2024. This will also apply to any shared parental leave starting on, or after, 6 April 2024.
In addition to the above there are some changes to be implemented to the consultation requirements in TUPE transfers within small organisations (which will impact on any TUPE transfers happening on or after 1 July 2024). Employers will also have greater obligations to take reasonable steps to prevent the sexual harassment of their employees from October 2024 and there are changes expected in 2024 to allow additional time off for new parents where the child requires neonatal care and to entitlements to workplace pensions.
Stay tuned to our future bulletins for updates!
The importance of early consultation with the workforce in redundancy situations
A recent Employment Appeal Tribunal (EAT) decision reminds employers that it is important to share redundancy proposals with the workforce at an early stage. Failure to do so could make any resulting dismissals unfair.
In Joseph de Bank Haycocks v ADP RPO UK Limited, the workforce were not consulted about redundancy proposals before pooling and scoring took place. The criteria for selection and the Claimant’s own scores were not provided to him before his dismissal. This information was, however, provided on appeal. The EAT held that the failure to consult at a formative stage meant that the dismissal was unfair, saying that ‘whilst the appeal could correct any missing aspect of the individual consultation process (e.g. the provision of the claimant’s …scores), it could not repair [the] gap of consultation in the formative stage’.
The EAT set out the following guiding principles for fair redundancy consultation:
- the employer will normally warn and consult either the employees affected or their representative.
- a fair consultation occurs when proposals are at a formative stage and where the employee is given adequate information and adequate time to respond, along with consideration being given to that response.
- in consultation, the purpose is to avoid dismissal or reduce the impact of redundancies.
- a redundancy process must be viewed as a whole, and an appeal may correct an earlier failing.
- it is a question of fact and degree as to whether consultation is adequate, and it is not automatically unfair that there is a lack of consultation in a particular respect.
- any particular aspect of consultation, such as the provision of scoring, is not essential to a fair process.
- the use of a scoring system does not make a process fair automatically.
- whether it is reasonable to show an employee the scores of others in a pool will be case-specific.
Employers seeking to carry-out a fair consultation process in a redundancy situation should take account of each of the points above and act appropriately from the very moment that redundancies are contemplated.
How should you deal with time off to donate blood?
Many employees choose to donate blood. Blood donation centres generally open beyond normal office hours so it is arguable that employees should not need to take any time off work in order to donate blood. However, what should you do if you are faced with a request from an employee for time off to donate blood?
Here are some pointers:
- does the business already have a policy in place to deal with time off to donate blood during working hours? If so, you should consult this and act accordingly.
- if there is no express policy in place, then is there a custom and practice that has been adopted in relation to time off for this reason? If so, then it is a good idea to follow any previous custom. Failing to do so, without good reason, could lead to allegations of unfairness and/or discrimination in appropriate cases. You should act consistently.
- if there is no express policy and no obvious custom or practice, then the legal position here is that time off to donate blood is not a legal right. It comes with no entitlement to claim the time off as sick leave – other than the time spent actually donating blood and a short rest period thereafter, the employee will not be prevented by sickness from working.
- although there is no legal right to time off to donate blood, you will want to make sure that your managers know how to handle any request. You could choose to adopt a supportive policy, allowing a short amount of paid leave during the working day in order to donate blood. Alternatively, you could make it clear that employees who want to give blood are expected to donate outside of their working hours, except for cases where there is an emergency request for donation.
- there are good reputational reasons that you may wish to promote and support time off for blood donation. It is an important civic duty and, if a supportive and encouraging approach is taken, this could increase employee morale.
New legislation means criminal convictions will be ‘spent’ sooner
New legislation has come into force which will mean that criminal convictions will become ‘spent’ after a shorter time, reducing the period that individuals need to declare them to their employers.
Section 193 of the Police, Crime, Sentencing and Courts Act 2022 came into force with effect from 28 October 2023 and makes the following key changes to the previous position on declaring custodial convictions:
|Type of conviction
|Previous length of time required to disclose following completion of sentence
|New length of time required to disclose following completion of sentence
|Custodial sentences of over 4 years
|7 years although certain offences are exempt and never spent including offences classified in the Sentencing Code as ‘serious violent, sexual and terrorism offences’
|Custodial sentence of between 2 ½ years and 4 years
|Custodial sentence of between 1 and 2 ½ years
|Custodial sentence of between 6 months and 1 year
|Custodial sentence of up to six months
The new time periods will be extended in the event of re-offending during the declaration period.
The time periods of required disclosure are altered (and slightly lower) for each category where the offender was under the age of 18 at the time of conviction.
Employers should review any application forms and interview questions to make sure that these changes are reflected. The changes will not impact on any roles where basic or enhanced DBS checks are required.
5 facts about fit notes
Fit notes are the written notification of fitness to work which must be provided by an employee when they are absent from work due to sickness. Here are 5 things you should know about fit notes:
- By law, a fit note must be presented to the employer for absences extending beyond seven consecutive days. Employers can choose to include a shorter period in their own policies and contracts. Seven days is the default.
- A fit note issued in the first six months of incapacity cannot exceed three months in duration. Aside from this, there is no limit on the length of time for which fit notes can be issued.
- The fit note doesn’t contain an unconditional “fit for work” option. Therefore, an eligible healthcare professional can no longer use it to sign an employee back to work with a clean bill of health. Instead, the employee may be declared ‘not fit for work’ or ‘may be fit for work’.
- Since 1 July 2022, a wider range of healthcare professionals have been able to sign fit notes. Doctors, registered nurses, occupational therapists, pharmacists, and physiotherapists can all sign them.
- Providing a fit note is not a strict requirement for eligibility for statutory sick pay. Employees are able to self-certify their absence for the first seven calendar days for SSP purposes. After that, employers have to have some evidence of incapacity to administer SSP but they are free to decide what form that takes. It does not have to be a fit note (although, in practice, it usually will be).
The politics which surround the work fridge and its contents are often the cause of significant workplace friction. Employees who have their lunch taken and eaten are often seriously aggrieved. Usually, such issues can be resolved by way of a polite note on the fridge door and a suggestion that food is named.
However, one employee in the US recently revealed on Reddit that he had taken more dramatic steps to identify who had been eating his sandwiches. Upset that his lunch kept being taken from the work fridge, he laced his sandwich with prescription-strength laxatives. He then reported to HR that his lunch (and his medication) had been stolen. The culprit was found by HR in a nearby toilet. HR took no action against the employee who had set-up the prank but dismissed the sandwich-stealer. Although this example is an extreme one, it is a reminder that theft of any sort within the workplace should be taken seriously! As one person commented on the Reddit article – “This is why employers shouldn’t disregard lunch thieves. It’s only a matter of time until they turn their thieving hands on the employers’ things or somehow cause damage to their employer.”