Employment law gets its annual April update - Fraser Vandal

Flexible Working

The Employment Relations (Flexible Working) Act 2023 will come into force on 6 April. Its purpose is to make the process of making a flexible working request less burdensome for employees by:

• Removing the need for employees to explain what impact their requested change will have on their employer;

• Allowing employees to make two statutory requests in any 12-month period (compared to the current position of one every 12 months);

• Requiring employers to only refuse a request if the employee has been consulted beforehand; and

• Reducing the default decision time from three months to two months.

Regulations will also be enacted under the Act on 6 April 2024 that will remove the 26-week service requirement for statutory flexible working requests, making them a “day one” right. It remains to be seen what impact this will have on the number of requests being made, as flexible work options will often already be discussed during recruitment processes in any event.

It is important to note employees have no standalone legal right to work flexibly: the right is simply to request flexible working. Employees can, however, challenge decisions to refuse a request if it is not appropriately considered by an employer and such matters could end up in an Employment Tribunal.

Enhanced Redundancy Protections

Currently, those on maternity leave benefit from enhanced protection against redundancy – including having “super priority” on available alternative roles. These enhanced protections will be extended and will apply from the date upon which the employer is notified of a pregnancy until 18 months after the child is born. Similar provisions will also apply to those taking adoption or shared parental leave.

Paternity Leave

Some changes to paternity leave have already been implemented in March 2024. Paternity leave no longer needs to be taken in a single block, allowing fathers to take their leave in two non-consecutive one-week blocks. Paternity leave can also now be taken at any point in the year following the birth/adoption of the child, compared to the previous position of having to be taken within eight weeks.

Holiday Pay

Significant changes are being made to holiday pay for staff who work irregular hours or on a part-year basis. For holiday years that start from 1 April 2024, “rolled-up” holiday pay will be permitted – where holiday pay is added as a top up to wages as and when it is accrued (usually, but not always, at the rate of 12.07 per cent of hours worked), instead of being paid when holiday is taken. This was previously unlawful under EU rules, but is now permitted post-Brexit. Although rolled-up holiday pay is now permitted, it will not be obligatory and holiday pay for these staff can still be calculated in the more traditional way.

Minimum Wage

The National Living Wage – the minimum wage for those aged 21 and older – will rise by 9.8 per cent to £11.44 per hour on 1 April 2024. The age-specific rates for those aged between 16-17 and 18-20 will rise by 21.2 per cent and 14.8 per cent respectively.

Fraser Vandal is an Associate, Gillespie Macandrew LLP