Business 54 www.aftermarketonline.net JULY/AUGUST 2024 Keeping up with workplace law Employment legislation is in a constant state of flux as it seeks to reflect the demands of the modern workplace. In this article, written for Aftermarket before the UK general election was called, Sophie Wahba, of law firm Wright Hassall, looks at recent and expected legislative developments As of January 1 this year, the Equality Act (Amendment) Regulations 2023 came into force, protecting against discrimination that would otherwise have ceased to apply following Brexit. The regulations strengthen protection in relation to discrimination in a number of ways. In particular, the legal definition of disability was extended. Similarly, indirect discrimination by association was extended and now ‘covers individuals who do not have the relevant protected characteristic, but who suffer similar disadvantages to those who do hold the protected characteristic if the disadvantage is due to an employer’s policy, provision, or criterion’. The regulations also introduce a single source test for equal pay comparators into UK law, which means that workers do not have to have the same employer, or even an associated employer, to be able to make an equal pay comparison. Other elements of the regulations extend protection against direct discrimination, less favourable treatment on the ground of breastfeeding is now classed as direct sex discrimination and more favourable treatment on the grounds of maternity is permitted. Allied to this, additional protection is given to employees after they return from maternity leave in relation to certain types of unfavourable treatment. Holiday pay and entitlement Changes to the Working Time Regulations were also introduced on January 1 simplifying holiday entitlement and holiday pay calculations for irregular hours workers and partyear workers. The changes also apply to relevant workers from their first holiday year starting on or after April 1, 2024. ‘Fire and rehire’ ‘Fire and rehire’, otherwise known as ‘dismissal and re-engagement’ (which refers to when an employer fires an employee and offers them a new contract on new, often less favourable terms) has been a politically charged subject for a while. In response to last year’s consultation on the subject, the government published a new code of practice in February, making clear that it firmly opposes this practice being used as a negotiating tactic. The new code clarified how employers should behave when seeking to change employees’ terms and conditions and aims to ensure that employees are properly consulted and treated fairly. Employers will now need to explore alternatives to dismissal and reengagement and have meaningful discussions with employees or trade unions to reach an agreed outcome. The code also makes it clear that employers must not use threats of dismissal to pressurise employees into accepting new terms, and they should also not raise the prospect of dismissal unreasonably early or threaten dismissal where it is not envisaged. Failure to follow the code correctly could result in a 25% uplift to a tribunal award. Flexible working Another key topic of the moment is the subject of flexible working. It’s taken some time, but employers should be aware that the Flexible Working (Amendment) Regulations 2023 removed the old 26-week qualifying period to make a flexible working request. Since April 6, employees have the right to make a flexible working request from the first day of their employment, rather than having to wait for 26 weeks. And in addition to this day-one right, employees will be able to make two flexible working requests in any 12-month period and they no longer need to make a business case for their request. It is important to note that employers must respond to an employee’s request within two months (rather than the former three) and must consult with an employee before rejecting a request. Employers that haven’t already amended their flexible working policy should think about doing so now. To back its stance, the government cited Chartered Institute of Personnel and Development research that shows 6% of employees changed jobs in 2022 —specifically due to a lack of flexible options — while 12% left their profession altogether due to a lack of flexibility within the sector. It says that these numbers represent almost two and four million workers respectively. Redundancy protection Employees who were on maternity leave, shared parental leave or adoption leave, have for some time been offered special protection against redundancy. However, the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 extended protection from April 6 to cover pregnant employees and employees who have recently returned from maternity,
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