Three headline HR actions to start 2024

The Government amended the holiday provisions in the Working Time Regulations with effect from 1 January 2024. The key changes are:

• a new framework for 'irregular hours' and 'part-year' workers, for holiday years starting on or after 1 April 2024, which allows employers to:
  • simplify the holiday pay calculation for these types of worker, by paying holiday pay at 12.07% of hours worked in a pay period;
  • pay 'rolled-up holiday pay' (that is, include holiday pay as an additional element in workers' basic pay, rather than paying it when holiday is actually taken); and
  • carry over part of a worker's holiday entitlement, with their agreement (for example in the employment contract) to the next holiday year.
• codifying what should be included in some holiday pay (such as commission, overtime etc).  
• removing the Covid-19 carry over rules – workers have until 31 March 2024 to use under these rules any holiday carried over due to the disruption caused by the pandemic.

In addition to ensuring that your holiday arrangements comply with these changes, employers with a material number of casual staff who are 'irregular hours' or 'part-year' workers may wish to consider taking into account the new flexibilities that are on offer. This is particularly likely to be of interest to employers in sectors such as recruitment and education. More detailed guidance on who falls under the umbrella of 'irregular hours' and 'part-year' workers can be found in the Government's new Holiday pay and entitlement reforms from 1 January 2024 Guidance, although these definitions are yet to be tested in the employment tribunal.

Note that the new flexibilities for irregular and part-year workers only apply to holiday years starting from April 2024; many employers use the calendar year as their holiday year, meaning that these flexibilities won't be available until 1 January 2025 unless employers actively take steps to move their next holiday year earlier.

Employers will want to update their Flexible Working Policy to take account of the following changes being made to the statutory right to request flexible working from 6 April 2024:

• it becomes a Day One right - there is no longer a six month qualifying period;
• employees may make two requests (rather than one) in a 12 month period (but employers don't need to accept a new request if the first one is still being processed);
• employees no longer need to set out the impact on the business or give suggestions for mitigating that impact as part of their request;
• the employer needs to consult with the employee before making any decision; and
• the request must be processed within two (rather than three) months of receiving it, unless the parties agree otherwise.

Employers will also want to consider introducing a new Carer's Leave policy. Employees who have a dependant with long term care needs may take one week of unpaid carer’s leave within a 12 month rolling period. The leave can be taken as half or full days, up to and including taking a block of a whole week of leave at once.

Employers have a new mandatory duty from October 2024 to take reasonable steps to prevent sexual harassment in the workplace. Breach of this duty can result in an uplift in compensation of up to 25%. The EHRC can also take direct enforcement action against the employer.

What are "reasonable steps" depends on each employer's size and nature, the resources available to it and the risk factors which need to be addressed within the organisation or the employer's business sector. However, in broad terms employers should consider:

• taking steps to foster a healthy workplace culture which doesn't tolerate discriminatory behaviour;
• reviewing, and keeping under review, their equality and anti-harassment policies and practices, to ensure that they are effective and well communicated to the workforce;
• provide targeted and up-to-date, effective training to the workforce; and
• dealing effectively with employee complaints.

In the past, these steps have been used by employers looking to establish the statutory defence against claims of discrimination. Now, a failure to take a proactive approach can itself be grounds for complaint.