Upcoming Employment Law Changes 2023/24

This is an update to our previous article on the 2023 employment law changes, updated to take account of a number of Private Members Bills that have now received Royal Assent, and other recent developments. It sets out the upcoming employment law changes that are due to be made over the next year, and beyond.

Whilst the much anticipated Employment Bill is now unlikely to materialise and form part of the upcoming employment law changes, some of the measures that had been expected to be included have already appeared in separate legislation. Others may also yet do so at some future point, and form part of the upcoming employment law changes.

Employment Law Changes: Rate Changes

The 2024 employment law changes will include the usual set of rate changes. Most will take effect in April 2024, and include the following:-

• The National Minimum Wage and National Living Wage: The new rates will be announced in the 2023 Autumn Statement (to be delivered on the 22nd November 2023), and will come into force on the 1st April 2024. However, unlike the National Living Wage, the Real Living Wage and London Living Wage normally increase in November each year. However, last year, the announcement and implementation of the rate changes for the Real Living Wage and London Living Wage was brought forward to the 22nd September 2022 due to the cost of living crisis. It is not currently known whether the announcement of the new rates will be brought forward again this year.
• Statutory Maternity Pay, Statutory Paternity Pay, Shared Parental Pay, Adoption Pay, Maternity Allowance, and Statutory Parental Bereavement Pay: It is anticipated that the new rates will be announced in around December 2023. They normally come into effect on the first Sunday in April, which in 2024 will be the 7th April 2024
• Statutory Sick Pay: The new rate is normally announced at the same time as the new rates for family friendly payments (hence, around December 2023), and will come into force on the 6th April 2024
• The statutory cap on a weeks pay for the purposes of calculating the basic award and statutory redundancy pay: The new rate is likely to be announced in March 2024, and will come into effect on the 6th April 2024.
• The Vento Bands: The Presidents of the Employment Tribunals in England & Wales and Scotland are due to conduct the annual re-evaluation of the Vento bands in March 2024, with the changes coming into force on the 6th April 2024

Strike Related Legislation

The Strikes (Minimum Service Levels) Act 2023 received Royal Assent on the 20th July 2023. It imposes a requirement to provide minimum service levels at the very least during a strike within the following sectors: health, transport, and education services, border security, the decommissioning of nuclear installations, and the management of radioactive waste and spent fuel.

Gender Pay Gap Reporting

At the same time as the 2024 employment law rate changes are taking effect, the usual gender pay gap reporting deadlines need to be met by those organisations with a headcount of 250 or more employees. Accordingly, the deadline for public sector employers to report their data will be the 30th March 2024, with a snapshot date of the 31st March 2023. And for private sector employers and voluntary organisations, the deadline will be the 4th April 2024, with a snapshot date of the 5th April 2023.

The Retained EU Law (Revocation and Reform) Act 2023

The Retained EU Law (Revocation and Reform) Act 2023 received Royal Assent on 29 June 2023. The retained EU laws listed in Schedule 1 of the Act as at the 31st December 2023 will cease to be law at the year end. Remaining EU legislation (to be known as "assimilated law" post 31st December 2023) will be retained, but can still be revoked, amended, or replaced. The Act also alters the guidelines for interpreting retained EU law by eliminating the principle of EU law supremacy and other EU law principles. Consequently, from the beginning of 2024, this will allow UK courts to deviate from retained EU case law to a greater extent. Additionally, the Act reduces the significance of retained direct EU legislation, making it simpler to modify and align with domestic legislation in its interpretation and application.

Other Potential Employment Law Changes

The following are additional employment law changes that may potentially be enacted. Some of these however may not be enacted in time to form part of the 2023 employment law changes, but instead of later changes beyond the 2023 employment law changes:-

• “Fire and rehire”. The Government published a draft statutory code which is now subject to consultation. The consultation closed on the 18th April 2023, and the Government's formal response is awaited
• Legislation in relation to what the Government describes as the “crack down on misuse of Non-Disclosure Agreements in the workplace“
• Employment Tribunal & EAT Composition: A consultation has been launched to determine whether the number of tribunal cases that are heard by a judge alone, as opposed to a panel which includes a judge and non-legal members, can be increased. The aim behind the potential reforms is to reduce the length of hearings. The consultation closed on the 27th April 2023
• Holiday Pay Relating To Part-Time Workers: The Supreme Court ruled in the case of Harpur Trust v Brazel (2022) on the 20th July 2022, that both full-time and part-time workers on permanent contracts have an entitlement to 5.6 weeks of holidays per annum, and that employers should not engage in pro-rating. That is, holiday pay for part-time workers must be calculated on the basis of workers average earnings over the full year (ignoring any weeks in which they did not work), and not on the basis of the actual hours worked during that year. Following the ruling, the Government launched a consultation on the 12th January 2023 stating that it was "keen.....to ensure that holiday pay and entitlement received by workers is proportionate to the time they spend working." The consultation closed on the 9th March 2023. The Government response is awaited.
• On the 12th May 2023, the Government launched a consultation entitled: ‘Retained EU Employment Law: Consultation on reforms to the Working Time Regulations, Holiday Pay, and the Transfer of Undertakings (Protection of Employment) Regulations’. The consultation closed on the 7th July 2023, and the Government response is awaited. Amongst the issues being addressed within this consultation, are proposals by the Government to simplify the calculation of holiday pay. The other issues being examined by the consultation are proposals to reform the record keeping and reporting requirements under the Working Time Regulations 1998, and changes to the consultation requirements relating to TUPE. Full details relating to the consultation are set out here.
• The “Edinburgh Reforms“
• In response to its 2020 consultation on non-compete clauses, the Government announced plans on the 10th May 2023 to limit post-termination non-compete clauses to 3 months in terms of duration. The announcement by the Department for Business and Trade states that the aim behind the proposal is to promote “competition and productivity in the workplace." The Government introduced a ban on exclusivity clauses in relation to low paid workers with effect from the 5th December 2022.
• Save As You Earn (SAYE) & Share Incentive Plan (SIP) Consultation: The Government launched the consultation “to consider opportunities to improve and simplify the scheme[s].”
• Umbrella Companies Consultation: The Government launched the consultation with the objective of ensuring that umbrella companies are better defined, provide those working for them with employment rights, and that they are compliant with tax rules.
• Ethnicity pay gap reporting. On the 17th April 2023, the Government issued guidance for employers, but organisations such as the TUC have called for ethnicity pay gap reporting to be made mandatory.
• The extension of the right of shared parental leave to grandparents
• The Data Protection and Digital Information Bill (replacement of the General Data Protection Regulation (GDPR)).
• Further legislation on modern slavery
• Legislation following on from the consultation on disability workforce reporting

As stated, some of the above may not be enacted in time to form part of the 2023 employment law changes, but instead of later changes beyond the 2023 employment law changes.

Shelved And Unlikely To Form Part Of The Upcoming Employment Law Changes

One measure that is highly unlikely to form part of the upcoming employment law changes is the idea of a new single enforcement body to oversee and enforce employment rights, which had been a key part of the proposed Employment Bill, but which appears to have now been effectively shelved by the Government.

Speaking before the House of Commons Business, Energy and Industrial Strategy Committee on the 13th December 2022, the then Secretary of State for Business, Energy and Industrial Strategy, Grant Shapps, stated: “We’ve spent two years plus of this parliament fighting Covid. It may well be with two years left to go that we’re still able to address some of that. But what we’re more interested in is making sure that the bodies that are already there are operating effectively.”

During his appearance before the Committee, Shapps also confirmed that the Employment Bill itself had now also been effectively shelved, as it was not “on the cards”. Accordingly, it is now all but certain that the Employment Bill itself will also not form part of the upcoming employment law changes and is defunct.

Private Members Bills

Some MP’s have brought forward Private Members Bills in an attempt to bring elements of the now likely defunct Employment Bill into force, with those that have received Government backing likely to form part of the upcoming employment law changes. The Private Members Bills include the following:-

• The Neonatal Care (Leave and Pay) Act 2023: As we highlighted in a previous article, Stuart McDonald MP introduced a Private Members Bill on the issue of neonatal care leave and pay which attracted cross party support and Government backing. The Bill received Royal Assent on the 24th May 2023, and should come into force sometime in 2024 or 2025, once secondary legislation has been implemented. Hence, it will not form part of the 2023 employment law changes, but of later changes.
• The Carer's Leave Act 2023: As we also reported recently, Liberal Democrat MP, Wendy Chamberlain, brought forward a Private Members Bill to try to introduce a statutory right to 1 weeks unpaid carer’s leave. The Bill received Government backing. It received Royal Assent on the 24th May 2023, and should come into force sometime in 2024 or 2025, once secondary legislation has been implemented. Hence, it will not form part of the 2023 employment law changes, but of later changes.
• The Employment (Allocation of Tips) Act 2023 began as a Private Members Bill sponsored by Virginia Crosbie MP, with the objective of creating a new legal obligation on employers to allocate tips, gratuities and service charges to workers without deductions. It received Government backing. The Bill received Royal Assent on the 2nd May 2023, and should come into force sometime in 2024 or 2025, once secondary legislation has been implemented. Hence, it will not form part of the 2023 employment law changes, but of later changes.
• The Employment Relations (Flexible Working) Act 2023 began as a Private Members Bill which was sponsored by Yasmin Qureshi MP, with the objective of making the right to request flexible working a day one right (as opposed to the current position of 6 months). It received Government backing, and received Royal Assent on the 20th July 2023. It is likely to come into force sometime in 2024 or 2025. Hence, it will not form part of the 2023 employment law changes, but of later changes.
• The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 began as a Private Members Bill sponsored by Dan Jarvis MP. It received Government backing. Currently, those on maternity leave, adoption leave or shared parental leave get priority over other employees in a redundancy situation under Regulation 10 of the Maternity and Parental Leave Etc Regulations 1999 (MAPLE), in terms of suitable alternative employment. However, under the new Act, the protections afforded by MAPLE would be extended to run from the point at which the employer is notified of the pregnancy, until 18 months after the birth. Similar rules will apply to those who are taking shared parental leave or adopting a child. The Bill was was granted royal assent on the 24th May 2023, and should come into force sometime in 2024 or 2025, once secondary legislation has been implemented. Hence, it will not form part of the 2023 employment law changes, but of later changes.
• The Worker Protection (Amendment of Equality Act 2010) Bill is a Private Members Bill which has been sponsored by Wera Hobhouse MP, The bill has received Government backing and is awaiting its 3rd reading within the House of Lords. Hence, the bill is likely to become law in 2023, and should come into force sometime in 2024 or 2025. Hence, it will not form part of the 2023 employment law changes, but of later changes.
• The Workers (Predictable Terms and Conditions) Bill is a Private Members Bill which has been sponsored by Scott Benton MP. Under the bill, where workers hours vary in terms of the number of hours employees work and/or when they work, or they are in a fixed term contract of less than a year’s duration, then they would be permitted to apply for a more predictable working pattern after 26 weeks of continuous service. The Bill has now received Government backing and is now therefore highly likely to become law in 2023 (it is awaiting its 3rd reading in the House of Lords), and should come into force sometime in 2024 or 2025. Hence, it will not form part of the 2023 employment law changes, but of later changes.
• The Fertility Treatment (Employment Rights) Bill is a Private Members Bill which has been sponsored by Nickie Aiken MP. It aims to give employees the right to paid time off work to attend fertility treatment appointments. The partners of such employees would also have the right to unpaid time off work to accompany them to such appointments. The bill has not received Government backing, and has not yet had its second reading
• The Miscarriage Leave Bill is a Private Members Bill which has been sponsored by Angela Crawley MP. Its aims to provide employees with the right to 3 days of paid bereavement leave where they have had a miscarriage, molar pregnancy, or ectopic pregnancy prior to 24 weeks. The bill has not received Government backing, and has not yet had its second reading

Accordingly, in sum, many of the above mentioned bills have received Government backing and are now likely to become law (with many having already been granted Royal Assent), and form part of the upcoming employment law changes. Nevertheless, those bills that have not received Government backing are unlikely to become law, and are therefore not likely to form part of the upcoming employment law changes.

Further 2023 Employment Law Changes May Be Announced

Given the total shambles that the Conservative Party and the Government have degenerated into over the last year (still hovering around 15% - 20% behind the Labour Party in the opinion polls and heading towards a landslide defeat at the next general election), literally anything could happen in the months to come. Hence, further employment law changes may yet be announced, and any further proposed employment law changes will be detailed in future updates to this article.