UK employment law round-up: your questions answered

Our own Stephanie McCleery, Director, recently hosted an insightful webinar welcoming special guest Emma O’Connor, Legal Director and Head of HR Training from law firm Boyes Turner.

Emma talked us through potential employment law changes in the UK, how they may affect HR policies in your business and what you can do to stay ahead of the game. Watch the full replay here.

A huge thank you to Emma and to everyone who attended – it was one of our record webinar participations levels to date, which goes to show how crucial this topic is to the HR community.

There wasn’t enough time for Emma to go through all of your important questions during the Q&A session, so we sat down together again to make sure they’re answered for you.

You asked:

• How is protection during the redundancy process being extended and to whom?
• When can we expect changes to the flexible working regime?                 
• Are businesses looking at introducing four-day working weeks?
• What is neonatal leave and what are the possible implications for employers?
• How would employees prove they are entitled to take carer’s leave?
• Under the new rules relating to tips, how would this work in practice with PAYE rules?
• What do the new proposed legislative changes mean for employers and how can they prepare?

Here’s what Emma said:

How is protection during the redundancy process being extended and to whom?

Currently, there is an obligation on employers to offer employees who are on statutory maternity/adoption/shared parental leave who are at risk of redundancy, the opportunity to apply for suitable alternative roles above other employees in the “at risk” pool. Remember, this right is in addition to rules including redundancy procedural fairness/unfair dismissal/collective consultation, contractual rights and also protection under the Equality Act 2010. Currently, this protection ceases once the employee returns to work.

I discussed the proposal to extend the current statutory protection to employees who are pregnant and also for a period of (we think) six months from the date an employee returns from statutory maternity/adoption/shared parental leave. The proposals are contained in the Protection from Redundancy (Pregnancy and Family Leave) Act 2023. Although this legislation has been passed, we have to wait for further enabling legislation where we hope we will have more information and detail. It is expected this change will not come in until 2024. 

We had questions about miscarriage as well as whether both men and women would be able to benefit from the change. Yes, a woman who has recently suffered a miscarriage would benefit from the extended protection. Also, both parents would be able to benefit from the change in the law (e.g., a parent on adoption or shared parental leave). 

Whilst a change is to be welcomed, it is posing a lot of questions for HR teams especially around the possible length of time employees may be in this protected period for and what impact this could have on redundancy programmes. Also, how long does a person have to be on maternity/adoption/shared parental leave for to qualify for the extended protection? There is also a concern that women may feel they have to notify their employers earlier they are pregnant to be given protection.

When can we expect changes to the flexible working regime?                   

Under proposals, the right to request flexible working would change from being a request after 26 weeks of employment to a “day one” right, which means employees from their very first day with you (and even before), will be able to ask about flexible working options. There would also be some changes to the process. For example, employees could make two requests per year under the statutory regime, rather than one currently. However, the statutory grounds for refusing a request are not proposing to change.

The current Employee Relations (flexible working) Bill (the primary legislation) is still going through Parliament. It is expected that the primary Bill will work its way through Parliament this year, with a possible implementation date of 2024. We’ll of course keep people updated. Unless and until the law changes, the current statutory flexible working regime rules are still in force.

Are businesses looking at introducing four-day working weeks?

It is interesting that there was a flurry of news reports recently about businesses trialling a four-day working week. Many businesses have reported an increase in productivity, whereas for others there has been little if any, benefit and some have reverted back to a five-day working week.

Many will ask about holidays, and it will depend on the circumstances. However, as a general rule, if employees are reducing the days worked but keeping the hours the same, then the statutory holiday entitlement shouldn’t change – their week will still consist of the same hours worked (for example, 37.5 hours), just over fewer days. However, if employers are reducing the working week as well as the hours worked, then the statutory minimum entitlement will also change. Something to take advice on as there are implications here to think about. Certainly, a four-day working week does not suit all businesses and sectors. Watch this space!

What is neonatal leave and what are the possible implications for employers?

I would say that neonatal leave is posing a lot of questions for HR. At the moment, we only have primary legislation – so we know that neonatal leave is coming into force, we just don’t know when and what the actual details will be. The new legislation is yet to specify those who will benefit from neonatal leave. However, the intention during the consultation period was that both parents and others would be able to take neonatal leave.  We await eligibility rules; however. it is likely that the eligibility will be the same as it is for paternity or shared parental leave i.e., the baby’s parents, someone married to/civil partnership with the baby’s mother, or someone expected to have the responsibility of bringing up the child.

What we know so far is that parents whose newborn baby is admitted to neonatal care will be given a day one right to take up to 12 weeks neonatal leave. This statutory leave (and right to receive statutory pay, if eligible) is in addition to the right to receive statutory maternity or paternity leave and statutory pay.

The proposal is for protection to be given to parents of newborns aged 0-28 days old who are admitted to neonatal care and who are in hospital for at least seven days. I expect eligibility for statutory neonatal pay to be the same as we see for statutory maternity or paternity pay.

How would employees prove they are entitled to take carer’s leave?

Under the new Carer’s Leave Act 2023, employees with long term caring responsibilities would be eligible to take up to a week’s leave per year (unpaid) to fulfil their caring responsibilities. Regulations bringing the new leave into force have not yet been published and so there is limited information as to how the new legislation will work in practice. However, it is suspected the new right will come into force in 2024. 

Eligibility under the new Act would be to care for a spouse, civil partner, child, parent, someone living in the same household or for a person who reasonably relies on the employee for care. The requirement is that the person requiring the care must have a “long-term” care need. The leave will be available to employees only and will be available from the first day of employment.

Whilst there is some flexibility as to when leave can be taken – half days, full days or in blocks – there are no set rules as to how an employee can request the leave. It is likely there will be some form of self-certification with the employee completing an internal form and signing this to confirm eligibility. This is not the same as sickness self-certification and it is also unlikely employers will be able to ask for evidence, so employers are relying on trust. Also, it is important to note that employees taking carer’s leave will be protected from dismissal or any detriment because of taking carer’s leave.

Under the new rules relating to tips, how would this work in practice with PAYE rules?

Under the new Employment (Allocation of Tips) Act 2023, workers will have the right to be paid all employer-controlled tips, gratuities, and service charges in full, with no deductions for processing fees and for those tips etc., to be allocated fairly. Employers must have a policy regarding allocation.

Employers must also keep records as to allocation for a period of three years beginning when the tip etc was paid. We expect a new Code of Practice to be published which will assist employers with the fair allocation as well as drafting a policy.

Qualifying workers can also request records of qualifying tips etc which the employer is expected to disclose to them. Qualifying tips would also be paid through the payroll so be subject to usual deductions for PAYE. 

What do the new proposed legislative changes mean for employers and how can they prepare?

There are certainly a lot of changes, particularly around family friendly rights which will come into force over the next two to three years. However, many employers may look to those changes and think whether there is an opportunity now to look at their family benefits and maybe enhance them or actually bring in leave, such as carer’s leave, now. Think about your workforce demographics and where you perhaps see a need to flex your benefits. 

I also, think it is really important that managers are trained on how to manage employee-related issues effectively. Would a manager know, for example, what to do if someone made a flexible working request? What happens during a redundancy process? Leadership and legal training programmes around legal requirements or equality laws are really important and can give defences in employment tribunal claims. 

When we think about changes to flexible working rules in particular, is this a good time to have a reset and a rethink about how your workforce is “working”. Is remote working really giving your staff and teams, particularly your juniors and new recruits, what they need in their careers?

However, if you look at your competitors, if there is not a degree of flexibility, staff will vote with their feet. It’s all about balance and trust. Also, with the right to request flexible working possibly becoming a day-one right, what does this mean for recruitment and job planning? Issues to consider here.

Watch the webinar replay here.

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