Navigating Post-Brexit employment regulations: a guide for employers
Two new important sets of regulations came into force on 1 January 2024. We take a look at the key aspects and their implications for employers.
Preservation of equality rights
After a turbulent passage through Parliament, the Retained EU Law (Revocation and Reform) Act 2023 (REULA) revoked some 600 pieces of retained EU law at the end of 2023.
We previously reported on the Equality Act 2010 (Amendment) Regulations 2023 (Equality Regulations), which protect certain EU-derived discrimination protection that would otherwise have disappeared under REULA. The practical effect of the Equality Regulations is to retain the status-quo so that equality law continues to have the same effect in 2024 as it had in 2023.
The Equality Regulations ensure that the following discrimination protections continue to apply in light of REULA:
- The 'single source' comparator test for equal pay claims. This means claimants will continue to be able to bring equal pay claims based on comparisons with other workers for whom the same body is responsible for setting or continuing their terms of employment
- The definition of disability will be amended in relation to employment and occupation. A person's ability to carry out normal day-to-day activities will be read as including their ability to participate fully and effectively in working life on an equal basis with other workers. This will ensure the interpretation of disability in a work context can continue to take into account a person's ability to carry out an infrequent or one-off work activity
- Work-related claims for direct discrimination on the grounds of breastfeeding will continue to be able to be brought
- The right to claim indirect discrimination on the basis of an association with a protected characteristic will be preserved
- Employers will continue to be potentially liable for conduct equivalent to direct discrimination if a discriminatory statement is made regarding recruitment, even where there is not an active recruitment process underway
Working Time Regulations amended
The second new set of regulations in force is the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 (Employment Rights Regulations). The Employment Rights Regulations amend the Working Time Regulations, including in respect of part-year and irregular hours worker's holiday entitlement. They introduce an accrual method to calculate holiday entitlement for part-year and irregular hours workers, at 12.07% of the hours worked in a pay period.
The Employment Rights Regulations also introduce legal definitions of "part-year" and "irregular hours" workers and will entitle employers to pay rolled-up holiday pay at the statutory rate of 12.07% for these workers.
These changes take effect for leave years starting on or after 1 April 2024. The Government has also put forward guidance relating to the Employment Rights Regulations which we discuss in a separate article.