Monthly Highlights – UK Employment Law – March 2024

In this month’s instalment, our team discuss changes to employment laws coming into effect in April 2024. We also discuss recent findings by the Employment Appeal Tribunal that a respondent failed to make reasonable adjustments when it dismissed a disabled employee rather than placing the employee in an alternative role on a trial basis, and that unconnected acts of discrimination that are linked by their factual setting should not be treated as “conduct extending over a period.”

1. Changes to employment law in April 2024

A number of important employment law changes come into effect in April 2024 that employers need to be aware of. We have summarised the key changes below.

Flexible working

From 6 April 2024, the right to request flexible working will become a "day one" right, removing the current requirement for employees to have at least 26 weeks’ service to make a flexible working request. Further, employees will no longer have to explain what effect their requested change may have on the employer and how any such effect might be dealt with. They will be entitled to make two requests (instead of one) in any 12-month period and employers will have to respond to a request within two months (reduced from three months). Please see our July 2023 update for further information on changes to flexible working.

Carer’s leave

From 6 April 2024, employees will be entitled to unpaid leave to give or arrange care for a ‘dependant’ who has:

• A physical or mental illness or injury that requires more than three months care;
• A disability (as defined in the Equality Act 2010); or
• Care needs because of their advanced age.

The dependant does not have to be a family member. It can be anyone who relies on the employee for care. Employees can take up to one week of leave every 12 months. A ‘week’ means the length of time they usually work over seven days. For example, if someone usually works three days a week, they can take three days of carer’s leave.

Please see our December 2023 update for further information on Carer’s Leave.

Changes for atypical workers’ holiday

Employers who hire atypical workers, namely those with irregular hours or who only work part of the year, should be aware of changes to holiday rights (e.g., the introduction of rolled-up holiday pay) for such workers. These changes will only apply to holiday years starting on or after 1 April 2024. Please see our November 2023 update for further information on the key changes.

Redundancy protection

Currently, before making employees on maternity leave, shared parental leave or adoption leave redundant, employers must offer them suitable alternative employment where it exists in priority to anyone else who is provisionally selected for redundancy.

From 6 April 2024, this right will also apply during pregnancy and for 18 months after taking relevant leave. Please see our December 2023 update for further information on additional redundancy protections.

Paternity leave

Employees will have new rights where a baby's expected week of childbirth is on or after 6 April, or for children expected to be placed with an adopter on or after that date. Currently, employees may take one week in total or two consecutive weeks of paternity leave. From 6 April 2024, they will have the right to take paternity leave as two separate one-week blocks. The leave can then be taken at any time in the 52 weeks after birth or adoption (rather than having to take leave in the 56 days following birth). They will only need to give 28 days’ notice of their intention to take paternity leave (reduced from the previous position that required notice to be given 15 weeks before the expected week of birth). Please see our January 2024 update for further information on changes to paternity leave.

IR35

IR35 is an anti-avoidance tax rule which applies where an individual provides their services to an end user via an intermediary (such as a PSC or partnership). Under IR35, if the individual is in fact an employee (e.g., the individual would be an employee of the end user if hired directly by the end user), income tax and National Insurance Contributions should be deducted from the fees paid to the intermediary (excluding VAT).

Currently, HMRC has no duty to set off the income tax already paid by such an individual, or their intermediary company, when assessing the tax liability of the end user. As a result, the end user bears the full cost of the liability. However, from April 2024, new measures will require such set off, reducing the tax burden of the end user and meaning some of the liability is shared by the individual/their intermediary.

2. Changes to various employment related rates

Changes to statutory maternity, paternity, adoption, shared parental and parental bereavement pay

From 7 April 2024, the rate of family leave payments will change as follows:

• Statutory maternity pay and statutory adoption pay – those who qualify are entitled to receive statutory maternity pay/statutory adoption pay for 39 weeks as follows:
  • the first 6 weeks: 90% of their average weekly earnings before tax;
  • the remaining 33 weeks: £184.03 (up from £172.48) or 90% of their average weekly earnings before tax (whichever is lower).
• Statutory paternity pay, statutory shared parental pay and a statutory parental bereavement pay – £184.03 per week (up from £172.48 per week) or 90 percent of their average weekly earnings before tax (whichever is lower).

Statutory sick pay

From 6 April 2024, statutory sick pay will increase from £109.40 per week to £116.75 per week.

Statutory cap

From 6 April 2024, the statutory cap on a week’s pay for the purposes of calculating the basic award and statutory redundancy pay will increase from £643 to £700. Consequently, the unfair dismissal basic award cap will increase from £19,290 to a maximum of £21,000. The maximum amount that can be awarded for the unfair dismissal compensatory award will also increase from £105,707 to £115,115.

National Living / Minimum Wage

Currently, only those who are aged 23 and over are entitled to the National Living Wage (currently £10.42). However, from 1 April 2024, workers aged 21 and over will be entitled to the National Living Wage, and this will increase to £11.44. Employers should monitor the ages of their employees to maintain compliance.

The National Minimum Wage rates are also changing as follows:

Vento Bands

Injury to feelings awards are made at the discretion of the Employment Tribunal in successful discrimination cases and can be made in addition to any loss of earnings suffered by a claimant (which are uncapped for discrimination claims).  In respect of claims presented on or after 6 April 2024, the updated Vento bands will be:

• A lower band of £1,200 to £11,700 for less serious cases.
• A middle band of £11,700 to £35,200 for cases that do not merit an award in the upper band.
• An upper band of £35,200 to £58,700 for the most serious cases (with the most exceptional cases capable of exceeding £58,700).

3. Reasonable adjustments and trial periods

In Miller v Rentokil, the Employment Appeal Tribunal held that the respondent failed to make reasonable adjustments when it dismissed a disabled employee rather than placing the employee in an alternative role on a trial basis.

The facts:

• The claimant worked as a field-based pest controller. After being diagnosed with multiple sclerosis he could no longer work in this role, mainly due to the difficulties caused when working at heights and at pace.
• The claimant applied for an alternative role as an administrator but was unsuccessful due to low scores in written tests and an overall unsatisfactory interview. As a result, the claimant was dismissed.
• The claimant brought a claim in the Employment Tribunal alleging, amongst other things, that failing to place him in the administrator role on a trial basis amounted to a failure to make reasonable adjustments under the Equality Act 2010.
• The Employment Tribunal upheld his claim and held that the respondent had failed to make a reasonable adjustment by not offering him a trial period in the administrator role, and also upheld claims of discrimination arising from disability and unfair dismissal.
• On appeal, the Employment Appeal Tribunal agreed with the Employment Tribunal. It held that the claimant was placed at a substantial disadvantage because of his disability and moving him to an alternative role was potentially a reasonable adjustment which had a real prospect of avoiding that disadvantage.

Key takeaway:

This case serves as a reminder that where a disabled employee can no longer perform his or her role, redeployment is an option that employers must consider carefully, even if only on a trial basis. It is important for employers to discharge the burden of demonstrating why it may not be reasonable to make a particular reasonable adjustment for a disabled person to avoid a successful claim of disability discrimination.

4. Continuing acts and discrimination

In Allen v Worcestershire Health and Care NHS Trust, the Employment Appeal Tribunal held that unconnected acts of discrimination that are linked by their factual setting should not be treated as “conduct extending over a period.”

The facts:

• The respondent underwent a restructuring process and offered the claimant a role at a lower pay grade. The claimant did not accept this role.
• The respondent had a “no redundancy” policy and did not make the claimant’s role redundant.
• The claimant subsequently went on sick leave. When the claimant was referred to occupational health, her manager ticked a box on the referral form querying whether ill health retirement would be appropriate, and the claimant subsequently raised a grievance. The claimant was later dismissed for ill health.
• The claimant brought claims in the Employment Tribunal for unfair dismissal, age and disability discrimination. The Employment Tribunal found that ticking the box in the occupational referral form and a pre-determined grievance amounted to age discrimination, and that she was dismissed for a reason related to her disability.
• On appeal, the Employment Appeal Tribunal held that the pre-determination of the claimant’s grievance was not discriminatory as the sole connection between the age of the claimant and the grievance process was that the grievance included allegations of age discrimination. It further held that the only discrimination claim in time was the act of dismissal. It disagreed with the Employment Tribunal’s finding that the earlier discriminatory acts could be treated as “conduct extending over a period of time.” Instead, the Employment Appeal Tribunal held that, for there to be conduct extending over a period time, there must have been discriminatory conduct that was ongoing. Indeed, it is not enough that incidents are linked and that later events would not have occurred but for the earlier events. Instead, there must be something in the conduct that involves continuing discrimination.

Key takeaway:

This case serves as a useful reminder that for there to be “conduct extending over a period” it must be distinct from a succession of unconnected or isolated acts, for which the time limit will begin to run from the date when each act was committed.