HR Newsletter No: 163 – Are you properly prepared for a Subject Access Request?

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Author: Jackie Bolton

Subject Access Requests (or SARs) are increasingly being used as a powerful tool in a disgruntled employee’s armoury, especially if they decide to “shop around” to establish whether there is sufficient evidence to take their employer to Tribunal, or “persuade” the employer to let then go within an enhanced termination package now.

While the process for dealing with such a request is not necessarily something all Managers need to be aware of, understanding the information that can be revealed is something it is crucial everyone understands.

More and more communication is committed to email and other electronic forms. So, all of those “off-the-cuff” remarks, flights of fantasy, fits of rage and frustration written down in emails do not play well in a courtroom, especially when you are trying to persuade a Tribunal that you behaved professionally and fairly.

In one case recently, which our client won, we had to read carefully through over 350 separate documents, none of which revealed anything remotely culpable, but nevertheless, could have done had a different organisation been investigated in the same way.

The Tribunal Playbook goes something like this:

  • The Claimant submits their ET claim currently within 13 weeks of leaving the organisation; this timeframe can be longer in discrimination and redundancy cases.
  • They are put in touch with ACAS who tries to resolve the situation, but it is not compulsory on a Claimant to agree to Early Conciliation.
  • At the same time, their solicitor advises them to go on a “fishing expedition” with an SAR.
  • The employer is then duty-bound to reveal everything relevant that has been recorded electronically about that individual from:
    • their HR record;
    • emails on the organisation’s server relevant to them;
    • correspondence with suppliers and external consultants;
    • documents held from the organisation’s hard drive and cloud storage;

Not only does this cause an enormous amount of work, but the Claimant is hoping to find just one or two nuggets.

“We need to get rid of Joe Bloggs”; “Joe Bloggs has been underperforming for some time, can we make him redundant?”; “Is it about time Joe Bloggs retired?”; “I am sick and tired of Joe Bloggs attitude, we need to get rid of him as soon as possible”; “Is Joe Bloggs getting too old for the job?”;

We have received emails from clients with all of these comments, often within the email heading!!!

Such smoking guns can prove disastrous in the courtroom. How can you say his Director/Manager was genuinely impartial at his disciplinary hearing, when he sent such an email to a colleague several months before?

So, the question “Are you prepared for an SAR?” does not mean, do you know how to handle one? It means something very different. Is your organisation properly trained in the best way to express concerns in writing and communicate them to others?

Some Key Pointers

  • When expressing frustration in writing about employees, do not name them or identify them.
  • Better still, pick up the phone if you want to consider different scenarios regarding an employee. Unless you record every one of your phone calls, such telephone calls are not disclosable. The same goes for video conferences.
  • Be professional when recording information on the database. Conjecture and exploratory conversations with others should not be included.

The law on information is onerous on employers. While email is such an easy form of communication, the fact that it is traceable and recordable makes it a very dangerous medium internally to communicate. All Managers and Supervisors should be made aware of.

There is, however, one exception which is that handwritten notes, made in the context of someone’s employment, do not have to be declared as part of a SAR, and that also goes for the handwritten notes taken by someone tasked with writing up a formal record of a meeting.

So, a good rule of thumb is to imagine that the employee was sitting right next to you. How would they react if you said directly to them the same comments that you are considering writing in an email to others about them? Because after a SAR they might be reading it, and so could a Judge.

 

 

Clients are welcome to raise any concerns with our Consultant team, who would be pleased to advise you on any element of the issues arising from this newsletter.

We cannot blame employers for feeling bewildered from time to time, especially in the charity sector, when trying to decide the employment status of those who work for them. Especially if they are a mix of volunteer and worker.

And, if ever a case demonstrated the need to take professional advice, then Groom v Maritime and Coastguard Agency was one.

The Employment Appeal Tribunal (EAT) examined whether a volunteer within the Coastal Rescue Service could be classified as a “worker” for the purposes of employment rights.

Background

The dispute centred on a seemingly simple question – did Mr Groom, a Coastal Rescue Officer (CRO), have the right to be accompanied at a disciplinary hearing? This is a right typically reserved for “workers” – it was crucial as he had been denied the right, and was thus claiming unfair dismissal, which he could not generally do as a volunteer.

To establish his status as a worker, Mr Groom needed to show he was engaged under either a contract of employment or an agreement where he personally performed work or services for another party for which he was getting paid.

Mr Groom was described as a volunteer, and was asked to operate under a Volunteer Handbook. Despite the absence of a written contract of employment, he received remuneration for certain activities, with these earnings documented via payslips and a P60 form.

EAT’s Findings

The EAT’s decision emphasised several key points:

  • The EAT clarified that being a volunteer does not automatically mean that in certain circumstances they cannot be a worker as well. The relationships can overlap depending on the specifics of the engagement.
  • The fact that he had to claim his remuneration, as opposed to receiving it automatically, and that some CROs did not claim remuneration, was deemed irrelevant. The right to claim remuneration was the critical factor.
  • When Mr Groom performed activities for which he was paid, his work was controlled by the organisation, indicating an implied contract. Therefore, during these activities, Mr Groom was considered a “worker.” Therefore, the Respondent (the employer) was found to have breached his statutory right to be accompanied at a disciplinary meeting.

Limitations of the Decision

While a decision at appeal carries great weight in the law, this was a very limited decision. The EAT did not address several important questions:

  • Was he a worker during activities that did not attract remuneration?
  • Was there an over-arching worker contract that governed his engagement?
  • It did not establish that volunteers are always workers.

Implications and Action Points

This case underlines the complexities involved in determining employment status, and the necessity for careful consideration of each case’s specifics. Here are some practical steps for organisations to consider:

  • Review Volunteer Agreements: Ensure that all volunteer agreements clearly outline the nature of the relationship, and any conditions related to remuneration or expenses.
  • Document Remuneration Practices: Maintain clear records of any payments or remuneration provided to volunteers to avoid ambiguity about their status.
  • Training for HR and Managers: Equip HR professionals and Managers with the knowledge to distinguish between volunteers, workers and employees, particularly regarding rights and obligations.
  • Seek Professional Advice: When in doubt, seek proper expert advice to navigate the complexities of employment status, especially for roles that blur the lines between volunteer and worker.

Understanding the distinctions between various forms of engagement is crucial for maintaining compliance, and ensuring fair treatment within organisations. This case serves as a reminder of the importance of clarity and thoroughness in defining the different types of employment relationships that can happen and at times overlap.

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

From 1st January 2024, the Government introduced holiday pay and entitlement reforms. They set out the changes to the Working Time Regulations regarding holiday pay entitlements, calculations and leave carry over.

While many employers have already asked about entitlements and holiday pay, there is an important principle buried within the amendments which needs action from every employer every year.

First of all, the new rules lay out in what circumstances leave may or may not be carried over.

In a nutshell, these are the current rules:

  • Generally, where a contract allows it, up to 8 days can be carried over if the employer only provides the statutory minimum 5.6 weeks (including Public/Bank Holidays) leave per year.
  • If a sick employee has been unable to take holiday, up to 20 days can be carried over.
  • For those on “Family Friendly” Leave, i.e. maternity leave, shared parental leave, adoption leave, up to 28 days can be carried forward.

The new rules also provide some quite stringent conditions under which employees might be able to carry over almost all of their leave, particularly when the employer has prevented them from doing so.

A worker can automatically carry forward all leave if the employer has:

  • Refused to pay leave entitlement.
  • Not given the worker a reasonable opportunity to take their leave.
  • Not encouraged them to do so.
  • Not informed them untaken leave must be used before the end of the leave year to prevent it from being lost.

While most reasonable employers will recognise the first two points as being fair, and probably the third one as well, they might well fall foul of the last one.

The main issue is that employers need to be proactive in reminding their employees about their holiday entitlement, and the fact that they need to use it up, otherwise they may lose it. We believe it will no longer be sufficient that your handbook has a “use it or lose it” clause, but every organisation needs to communicate with their employees at least once, probably twice a year, to remind them to take holiday, as the consequences of not doing so is that the unused leave days will be lost.

What does this mean in practice? So long as you have a set holiday year which is the same for every employee, then make sure you write to them around halfway through the year to remind them to book holiday, and then probably do the same with three months to go.

Obviously, some employers may have slightly different needs. We think of retailers, café’s, restaurants and hotels that are particularly busy over the Christmas period, and who have holiday years that run from 1st January to 31st December.  Knowing you have a particularly busy six weeks at the end of the year means you will probably have to write to them at least four months before the end of the year to make sure they take their holiday.

We remind employers of the following:

  • It is the employer’s responsibility to ensure their staff take their annual leave every year.
  • If they prevent their staff from doing so, then leave must be carried over.
  • Set up a system that reminds your employees at least twice a year of the need to take their holiday within the year or lose it.
  • If necessary, enforce holiday dates by making sure that employees are given twice the amount of notice as leave you wish them to take. For example, you can write telling them that they are to use up a week’s leave on dates you have set for them, providing you have given them at least two weeks’ notice of this intention.

 

 

Clients are welcome to raise any concerns with our Consultant team, who would be pleased to advise you on any element of the issues arising from this newsletter.

Holiday pay and entitlement is one of the most common topics we are asked to provide assistance with by our clients.  As many of you will already know, the Government introduced new guidance from 1st January 2024 on how to calculate holiday entitlement and holiday pay, which was supposed to provide clarity.

On reviewing this guidance, we actually found them to be rather confusing and “mudded” the waters in respect to what constitutes “normal” pay.  As such, we have decided to use terms such as “basic” pay (being the minimum flat rate that an employee is guaranteed to receive) and “normal” pay (being what we previously referred to as average pay) to show a clear distinction.  So, to help our clients, we have put together our own Employment Law Guide on Holiday Pay and Entitlement for Employers and attach a copy for your reference, which we hope you will find useful.

Employment Law Guide

Due to the complexity of this guidance, we also dedicated our last bi-monthly webinar to this particular subject only – something we do not normally do.   Below is a link to the recording, that includes copies of the slides, which we hope you will also find of interest.

Bi-Monthly Webinar Recording

We hope that the attached will assist you when it comes to calculating both holiday entitlement and pay.  However, if you have any queries or questions relating to this subject, please do not hesitate to drop us an email or give us a call as we would be pleased to help.

 
Clients are welcome to raise any concerns with our Consultant team, who would be pleased to advise you on any element of the issues arising from this update.

The President of the Employment Tribunals has issued the annual update to the Vento guidelines, setting out the bands of awards for injury to feelings, payable in cases of discrimination at work, adjusted for inflation.

The new bands are: –

  • lower band: £1,200 to £11,700 (less serious cases)
  • middle band: £11,700 to £35,200
  • upper band: £35,200 to £58,700 (the most serious cases)

Awards in the most exceptional cases may exceed £58,700. These updated figures apply in respect of claims presented on or after 6 April 2024.

The lower band applies to ‘less serious cases’ where the act of discrimination is a one-off or isolated occurrence. The middle band applies to serious cases that do not fall within the higher band. The higher band applies to the most serious cases, for example, where there has been a lengthy campaign of discrimination and/or harassment.

Employment Tribunals have great flexibility to fix the compensation at what is fair and just in each case. They will consider all the evidence, including the claimant’s evidence about the impact of the discrimination on them, before deciding an appropriate award.

While the tribunal will assess the award of damages for injury to feelings in an objective way, the perception and the individual reaction of the claimant will be an important factor for the court to consider. The more upsetting the conduct is to the individual, the more seriously the discrimination is likely to be viewed, and the higher the award for injury to feelings. Where a one-off act of discrimination is particularly humiliating or serious, and the victim suffers serious consequences as a result, an award in the higher bands could be justified. A tribunal would require quite detailed evidence about the seriousness, before it would be prepared to award a high figure.

Claimants sometimes have unrealistic ideas about how much money they will be awarded.  Cases that make the news are there precisely because they are so unusual. A tribunal will take a measured and methodical approach when they assess how much to award, but it is hardly a science. There is little in the way of hard evidence about what is normal, but we believe that most awards fall into the lower category.

Maximum, Median and Average Awards for Unfair Dismissal and Discrimination 2022/23

 

Maximum Award

 Median Award

Average Award
Unfair Dismissal

£184,200

 £6,201

£11,914
Race Discrimination

£452,474

 £11,400

£23,070
Sex Discrimination

£995,128

 £11,177

£37,607
Disability Discrimination

£1,767,869

 £15,634

£45,435
Religion & Belief Discrimination

£92,039

 £9,239

£19,332
Age Discrimination

£84,723

 £5,675

£14,210
Sexual Orientation Discrimination

£82,168

 £26,247

£31,623

These awards will include compensation for loss of employment which generally makes up a large proportion of the total amount, with injury to feelings being on top.

An award for injury to feelings is meant to reflect how upset the employer made the claimant feel, not to punish the employer for how badly they have behaved. Fair treatment is a moral and legal duty, and employers have a responsibility to investigate and respond to any issue they become aware of, as well as taking all reasonable measures to protect employees from harassment and discrimination.

Having strong and unambiguous equal opportunity and dignity at work policies are powerful tools for preventing discrimination and harassment in the workplace. In addition to developing the right policies for their workplace, employers also need to make sure that everyone understands the policy (evidence is shown by training records) and that it operates effectively in practice. Policies and practices that amount to indirect racial discrimination may be justified only when the policy or practice is a proportionate way of achieving a legitimate business aim.

Actions:

  • Educate all your workers about discrimination – this is done through meaningful training.
  • Encourage workers to respect each other’s differences.
  • Respond to any evidence or complaints of inappropriate behaviour.
  • Deal with any complaints of discrimination promptly and confidentially.

It is essential for employers to be proactive and prevent discrimination from occurring in the first place. Claims are difficult and expensive to defend, so best avoided.

The Equality and Human Rights Commission (EHRC) has confirmed that it will be updating its existing Code of Practice and technical guidance on ‘Sexual harassment and harassment at work’ to address the new mandatory duty that will apply to employers from October 2024, to take ‘reasonable steps’ to prevent sexual harassment in the workplace.

In summary, the expectation in law will be in the future that employers must assess the risk of harassment, take reasonable preventative action to reduce such risks, and deal effectively with workforce complaints of harassment.

BackupHR can deliver a full day in-person training course on Dignity at Work (Harassment and Bullying) which is suitable for Managers, Supervisors and/or Team Leaders with people management responsibilities, and/or a half day briefing session suitable for all types of employees. In providing this learning, clients will be able to demonstrate a range of reasonable steps have been taken to educate the workforce on its Equality and Dignity at Work policies, together with communicating out that discrimination, harassment and bulling is not acceptable behaviour at work.

If this is something you would be interested in running within your organisation, please contact Jackie Bolton on 01480 677981 or drop her an email to jackie@backuphr.com for more information.

 

 

 

You are welcome to raise any concerns with our Consultant team, who would be pleased to advise you on any element of the issues arising from this newsletter.

Statutory Figures

In addition to the previously published statutory pay increases for 2024 (refer to our Newsletter No 158), the annual increase in compensation limits has been publicised. The limits apply to dismissals, including redundancies, occurring on or after 6th April 2024.

  • £700.00 – the maximum amount of a week’s pay for calculating statutory redundancy pay and the basic award; (up from £643.00);
  • £21,000.00 – the maximum statutory redundancy payment or basic award, i.e. 30 weeks (up from £19,290);
  • £115,115.00 – the maximum compensatory award which can be made for unfair dismissal (up from £105,707.00) or one-year’s gross pay whichever is the lower;

These increases mean that the maximum total unfair dismissal award is now £136,115.00; although uplifts can add a further 25%.

Employees may be entitled to receive guarantee payments for up to five days of lay off in any three-month period.  The maximum amount of such a Statutory Guarantee Payment will increase to £38.00 (up from £35.00) for any one day.

The new rates take effect where the ‘appropriate date’ for the cause of action (such as the date of termination in an unfair dismissal claim) falls on or after 6th April 2024.

 

 

Clients are welcome to raise any concerns with our team of Consultants, who would be pleased to advise you on any element of the issues arising from this newsletter.  The information contained within this newsletter was correct at the time of publishing.

Paternity leave has been around for a long time, since 2002, but the Government will be shortly introducing new rules that will make it both easier to take and more flexible.

Up until now, the intention of an employee (they could be a father or a partner in this context) to take paternity leave had to be formally lodged with their employer on or before the 15th week before the Expected Week of Childbirth (EWC).  This is also known as the Qualifying Week (QW).  The employee had a stark choice, take a block of one week or two continuous weeks sometime during the first eight weeks after birth, or the adoption matching date.  And for some reason, the leave could not be split into two separate weeks.

These new rules reduce the notification required to 28 days (or 7 days for adoption), and allow this leave to be taken either as a two-week block, or two separate one-week blocks, any time in the first year after birth or adoption. The rules rather intriguingly view adoption as more unpredictable than the birth of a child. Parents of early or late babies may well disagree!

These regulations are expected to come into force on 8th March 2024, though they will only apply to babies whose EWC begins after 6th April 2024. And, for adoption purposes, whose expected date of placement for adoption, or when the adoption comes from abroad, when the expected date of entry into Great Britain for adoption, is on or after that date.

The rules are still quite rigid however, and the employee has to state not the exact date they wish to take leave, but how long after the birth or adoption they wish to take it. Any changes to this schedule should also be communicated at least 28 days in advance.

Any parent out there will tell you the arrival of the child is not necessarily something you can plan for in advance. Nor is the need for leave so precise that you can schedule it effectively before it happens.

Nevertheless, these rules will make it slightly easier for parents to prepare, while still giving employers some warning when employees are likely to be away. Please note that while holiday requests can be turned down, normally for good business reasons, paternity requests cannot, providing they have been notified in the appropriate way.

These are draft regulations, but employers need to be aware of the impending changes to paternity leave notification and, we are also waiting on other possible changes to paternity pay, which as yet have not been communicated out.

BackupHR Training

Getting the best from your team requires skill and dedication. Our Management Training Programme for 2024 covers a toolbox of strategies and essential practical skills, designed to equip those who are new to Management, or to offer further development or a refresher of existing skills for more experienced Managers.

Core Skills for Managing People: 24th April 2024 – Park Farm Country Hotel, Hethersett, Norwich and 17th October 2024 – Quy Mill Hotel & Spa, Quy, Cambridge

Handling Difficult Situations; 21st November 2024 – Park Farm Country Hotel, Hethersett, Norwich

Contact Jackie by e-mail: jackie@backuphr.com or 01480 677981 and visit www.backuphr.com for more information on how our training course can benefit you and how to book.

 

 

Our Consultant Team would be pleased to advise you on any element of the issues arising from this newsletter.

Introduction

Effective from 1st October 2023, several amendments to the Fire Safety Order (FSO) have been enacted. Initiated by s.156 of the Building Safety Act 2002, the changes target enhancing fire safety across buildings governed by the FSO. While these amendments might seem minimal, they necessitate that Responsible Persons under the FSO be proactive to ensure full compliance with the law.

Background

In the aftermath of the tragic Grenfell fire and consequential inquiries, the UK Government has been progressively revising fire safety regulations. The FSO amendments, specifically pertinent to England and Wales, are a part of this movement, realised via the Fire Safety Act 2021 and Building Safety Act 2022.

What Do These Changes Mean?

The newly enforced laws pertain to all non-domestic premises such as workplaces, communal areas in multi-occupied residential buildings, among others. It does not cover individual domestic premises.

Responsible Persons must now adhere to the following stipulations:

  • Maintain a comprehensive record of their fire risk assessment.
  • Document the identity of the person or organisation responsible for undertaking or reviewing the fire risk assessment.
  • Identify and record the relevant details pertaining to managing fire safety arrangements in the premises.
  • Update and maintain contact details, including a UK based address, and disclosing details and co-operating with other organisations’ Responsible Persons who are in the same shared premises.
  • Upon departure from a building, share essential fire safety details with incoming Responsible Persons.

Implications

The main essence of the recent changes is the enhancement of collaboration among Responsible Persons. This collaboration may encompass other businesses, landlords, or managing agents, often playing crucial roles in a building’s safety.

A new obligation requires all involved parties to understand and record their roles and responsibilities, ensuring they are in synchrony with the overarching safety measures of the entire building. The Government underlines the importance of this being a written record, accessible when required.

Moreover, whenever there is a change in the Responsible Person – be it due to cessation of a business, acquisition, or property sale – the incoming party must be presented with all pertinent fire safety details.

Conclusion

The underlying intent of these revisions is a comprehensive, whole-building approach to fire safety. Ensuring that every stakeholder, from a single tenant to a managing agency, is aligned and informed is a significant step towards more robust fire safety measures in the UK.

For our clients, we recommend a review of your current fire safety risk assessment and practices to guarantee meeting the new regulations.

 

The BackupHR team would be pleased to advise you on any element of the issues arising from this newsletter.

The Health and Safety Executive (HSE) of Great Britain’s annual statistics on work-related fatalities, ill health and workplace injuries for the period 2022/23 offer a comprehensive overview of the current state of workplace health and safety, revealing both the human and economic costs associated with work-related fatalities, illnesses and injuries.

There were 135 work-related fatalities and approximately 561,000 non-fatal workplace injuries reported in the same period. Around a quarter of the deaths were to workers aged 60 and over, which is similar to the profile of earlier years. The three main causes of fatal injury are falls from a height, struck by moving (including flying/falling) objects, or struck by moving vehicle, which between them continue to account for over half of annual fatal injuries. 68 members of the public were also killed in work-related accidents.  82% of fatal injuries occur in five industry sectors: – construction; agriculture; motor retail repair; accommodation; and food services. These same sectors, alongside forestry, also had statistically significant higher workplace non-fatal injury rates as well. If one looks at the numbers working in different employment sectors, then the highest prevalence of fatalities is in agriculture, forestry and fishing.

Here is a quick summary of other HSE statistics:

  • Prevalence of Work-Related Ill Health: The report states that approximately 1.8 million workers suffered from work-related ill health (both new and long-standing cases). This figure indicates a significant rise compared to pre-pandemic levels. 13,000 deaths per year are estimated to be linked with past exposure at work, primarily to chemicals or dust.
  • Stress, Depression, and Anxiety: Among these cases, around 875,000 incidents were related to work-related stress, depression, or anxiety, marking an increase from the pre-pandemic period. This includes 338,000 new cases for 2022/23.
  • Work-related musculoskeletal disorders: Prior to the pandemic, the rate of self-reported work-related musculoskeletal disorders showed a generally downward trend. The current rate is still similar to the 2018/19 pre-coronavirus level.  Industries with higher than average rates are not surprisingly in administration and support services activities, construction and human health/social work.
  • Gender and Age Disparities: Females reported significantly higher rates of work-related stress, depression, or anxiety compared to males, particularly in the age group of 25-34.
  • Lost Working Days: An estimated 35.2 million working days were lost due to work-related ill health or injury, with 17.1 million days specifically attributed to stress, depression, or anxiety.
  • Occupational Lung Disease: The report highlighted 12,000 lung disease deaths linked to past occupational exposures, including 2,268 deaths due to mesothelioma. Prior to the coronavirus pandemic, the rate of annual new cases of occupational asthma seen by chest physicians had been increasing.
  • Sector-Specific Impacts: Human health/social work, public administration/defence and education have had the highest rates of work-related ill health and non-fatal injuries. These are the exact same sectors that were most affected by work-related stress, depression, or anxiety.

The HSE conducted over 230 fatal and 5,500 non-fatal accident investigations, completed 216 criminal prosecutions with a 94% conviction rate, and carried out over 16,800 proactive inspections.

IOSH, and nearly every other Health and Safety expert, advocates for a prevention-first approach, emphasising the need for psychosocial risk management strategies and a people-focused work culture.

In conclusion, the HSE’s 2022/23 statistics underscore a persistent issue of work-related ill-health, particularly stress, depression and anxiety, alongside the substantial economic burden it places on the economy. The data calls for continued and enhanced efforts in workplace health and safety management, with a particular focus on mental health and preventative measures.

 

The BackupHR team would be pleased to advise you on any element of the issues arising from this newsletter.

There are some important changes to statutory rates of pay that the Government have already announced, to take effect in 2024.

National Minimum/Living Wage Rate Increases & Accommodation Rate

The National Living Wage is to rise by 10% which is the biggest cash increase ever. This will also now apply to all workers aged 21 and over for the first time (previously applying only to those aged 23 and over). It will go from £10.42 to £11.44 per hour.

At the same time, the National Minimum Wage (NMW) rates will be increased as follows:

  • from £7.49 to £8.60 per hour for 18 to 20-year olds;
  • from £5.28 to £6.40 per hour for 16 & 17-year olds; and
  • from £5.28 to £6.40 per hour for apprentices;

Accommodation Rate

If you provide some form of staff housing as part of the contractual arrangements, then the daily accommodation offset will apply. This will change from the current rate of £9.10 per day to £9.99.

The effect of accommodation rates on the National Minimum Wage or National Living Wage depends on how much an employer actually charges for accommodation.  It’s calculated by ‘pay period’, the frequency interval that someone is being paid. If the accommodation is free, it still affects the minimum wage.   It does not matter if the cost of the accommodation is taken from the worker’s wages beforehand, or if the worker pays the cost after they get their wages.

Increased Statutory Rates

The rate for 2024/25 for Statutory Maternity (SMP), Paternity (SPP), Adoption (SAP), Parental Bereavement (SPBP) and Shared Parental (SShPP) Pay are set to increase from £172.48 to £184.03 per week.

Additionally, the rate of Statutory Sick Pay (SSP) is also set to increase from £109.40 to £116.75 per week.

The rates for Statutory Redundancy Pay, Statutory Guarantee Pay, and Tribunal Awards are not yet announced.  We will send an update as soon as the new rates are published. They are usually expected in March.

Implementation

Exact dates of implementation are still to be confirmed, and it is worth noting that they do not all usually increase on the same date. It is expected that SSP will increase on 6th April 2024, with SMP, SPP etc. increasing on 8th April 2024 at the start of the new tax year. The NLW and NMW rates go up from 1st April 2024.

January Changes to Existing Rights

A number of substantive provisions of the Retained EU Law (Revocation and Reform) Act 2023 (known as REULA) have now become law, changing the status of various aspects of retained EU law under the European Union (Withdrawal) Act 2018, or for short, EU(W)A.

S.4 EU(W)A, that directly preserved rights arising under EU Treaties and Directives, has now been repealed, although it is important to note that there are some transitional provisions which preserve its effect in relation to facts occurring before the end of 2023. This means that claims relying on directly effective rights preserved under S.4 EU(W)A can still be brought so long as they rely on events or actions taking place before the end of 2023. Such claims can still invoke the general principles of EU law and the supremacy of EU law to the same extent as was possible under the EU(W)A as originally enacted.

S.5 REULA, which renames ‘retained EU law’ as ‘assimilated law’, is also now fully in force. However, not all of REULA has yet to come into effect, such as s.6 REULA, which will give Courts greater discretion to depart from retained EU case law.

The Equality Act 2010 (Amendments) Regulations 2023 also came into force on 1st January 2024, which include extended protection from pregnancy and maternity discrimination, the right to claim indirect discrimination by association, the ‘single source’ test for establishing an equal pay comparison, and a definition of disability that considers a person’s ability to participate in working life on an equal basis with other workers.

The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 amend the Working Time Regulations 1998 to preserve the entitlement under EU law to be paid ‘normal remuneration’ during annual leave, also came into force on 1st January 2024. Normal remuneration, in a nutshell, means that if people receive on almost every pay interval additional earnings beyond basic pay, such as overtime, shift premium, commission or bonuses, then this will be deemed normal remuneration for the purposes of calculating holiday pay.  This is also known as average holiday pay, based on the previous 52 weeks earnings.  This is actually not really new, as English case law has established this for some time, but the Government has now formally enshrined it into Statute.

Future Legal Rights

A number of Bills giving new rights are on their way to becoming enforceable regulations. However, due to the nature of the legal parliamentary process, it is not possible to say with certainty when this will happen this year, or what the details of these new rights will be, as they may still be changed. Nevertheless, it is important to be aware of what might be coming.

Protection from Redundancy (Pregnancy and Family Leave) Act 2023

Currently, employees absent from work on maternity, adoption or shared parental leave have the right to be offered any suitable alternative employment before their colleagues during a redundancy process. This is what is known as a “protected period”. With new secondary law coming into place this year we now know that for leave that ends on or after 6th April 2024, this protected period will be extended.

Pregnancy and Maternity Leave

From the time the employee discloses the pregnancy, a protected period applies. This will end on the day statutory maternity leave starts, and a further protection period is applied for a period of 18 months after the expected week of childbirth (or 18 months after the exact date of childbirth, if the employee has notified their employer of the day childbirth occurred before the end of the statutory maternity period). Where the employee is not entitled to maternity leave, such as in the case of a miscarriage, the protection period ends two weeks after the pregnancy ended.

Shared Parental Leave

The protected period begins from when the child is born or placed with the employee for adoption, and will be extended to 18 months after. To be eligible for the extended protection period, the employee must have taken six or more consecutive weeks of shared parental leave. They also must not have taken maternity or adoption leave.

Where less than six consecutive weeks of leave is taken, the protected period will continue as is currently the case, i.e. during the leave only.

Adoption Leave

The protected period runs from when the child is placed for adoption with the employee and is extended to 18 months after that.

Employment Relations (Flexible Working) Act 2023

We are waiting on ACAS to finalise its updated Code of Practice on handling requests for flexible working. Additional ACAS guidance on flexible working is also expected to be updated.

Secondary legislation will be implemented to set out the first of five changes that need to be put down in regulation to implement the 2023 Act.

The first regulation confirms that for any requests made on or after 6th April 2024, the employee making the request does not need to have any service with the employer. Essentially, this means the right to request flexible working will become a day one right. Currently absent are the other four proposed changes to flexible working rules. When they come, which is likely to be from 6th April 2024, they will be:

  • reduction of current reasonable timeline to deal with requests from three months to two months;
  • removal of requirement for employee to set out the impact of their requested arrangements;
  • introduction of the requirement for employers to consult with an employee before refusing a request;
  • increase in the number of statutory requests permitted per 12 months from one to two. Interestingly, the right to appeal an unsuccessful flexible working request appears to have been removed.

Carer’s Leave Regulations 2024

This introduces a new right to one week’s unpaid time off in any 12-month period to provide or arrange care for a dependant with a long-term care need.

This Regulation is still subject to parliamentary approval, which is thought will be passed and if so, this will come into force on 6th April 2024.

These Regulations provide that from the first day of employment, employees with a dependant with a long-term care need that need to take time off to care, or arrange it, for that dependant are able to do so, subject to a maximum of one week per year.

Unlike other forms of family leave, which must be taken in blocks, such as paternity or parental leave (unless the child is disabled), carers can take this leave either consecutively or separately in half or full days. In order to take the leave, they are required give written notice, which under the Regulations will need to be either twice the length of the time being requested, or three days, whichever is the longest.

Similar to parental leave, employers will be able to postpone a request for carer’s leave if at the time it would unduly disrupt operations. If declining the request, the employer must give a written explanation as to why this postponement is necessary. Nevertheless, the employee will need to be allowed to take the leave within one month of the original start date of the leave, following consultation with the employee as to a more convenient date.

This is likely to be a busy year for employment law changes, and we will be updating client Handbooks once we have a clear understanding of what these changes will mean in practice.

 

Clients are welcome to raise any concerns with our Consultant Team, who would be pleased to advise you on any element of the issues arising from this newsletter.