Welcome to this month’s edition of Worked Up 2024 – your one-stop shop for the latest updates in employment and immigration law.

In this month’s edition, we cover the latest Acas guidance on the upcoming changes to flexible working requests, explore some significant changes to the Immigration Rules (including increased salary thresholds for the Skilled Worker route), discuss the incoming amendments to statutory paternity leave and consider the Women and Equalities Committee’s eye-opening report on misogyny in the music industry.

If you would like to discuss any of the below updates, please do get in touch. Alternatively, if you would like to receive these updates directly to your inbox, please subscribe here.

Baby steps in the right direction as government amends statutory paternity leave

Sponsors should pay attention to Skilled Worker visa salary increases

New Acas flexible working guidance creates great flex-pectations for employers

Misogyny faces the music in latest Women and Equalities Committee report on gender issues in music industry

Seth Roe discusses how to ensure recruitment efforts don’t land companies in hot water when recruiting talent from similar or competing businesses.

If you want to stay ahead of the curve and keep updated on the key employment and immigration changes (including proposed legislation, consultations and case law) on the horizon over the next 24 months, check out our “What’s on the horizon” tracker.

The government has recently published draft regulations which will implement a number of changes to the statutory paternity regime in the UK. The new rules, which are aimed at supporting new fathers (or partners of mothers in same-sex relationships) by increasing flexibility on when leave can be taken, will introduce the following key amendments:

• Instead of being required to take the entire two week paternity leave entitlement at once, employees will be able to divide their leave into separate one week blocks.

• those eligible will now have the flexibility to take their statutory paternity leave anytime within 52 weeks from the birth of their child or from the date of the adoption placement. This offers a significant extension on the previous timeframe of eight weeks.

• Employees will only have to give their employer 28 days notice when they intend to take their paternity leave instead of the current 15 week notice period.

• Any specified leave dates can now be varied upon 28 days notice by the employee.

These changes will apply to children expected to be born on a week after 6 April 2024 or who are adopted from such date onwards. Statutory paternity pay will also increase slightly from 7 April 2024 to £183.03 per week (or 90% of the employee’s average weekly earnings, whichever is lower) in line with customary annual rises to statutory payments.

Whilst the UK still lags behind other European nations when it comes to paternity leave entitlements (particularly compared with Scandinavian countries) and many would argue that more needs to be done in this space, the new reforms do provide additional flexibility to new fathers / same sex partners. With the changes coming into force in a couple of months, it would be sensible for employers to consider updating their paternity policy to reflect these new entitlements.

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The big news in UK immigration law is the impending salary threshold rises for sponsored Skilled Workers. This unprecedented announcement took everyone by surprise at the end of 2023, and we now know that the changes will take effect from 4 April 2024.

On that date, the general salary threshold to sponsor a Skilled Worker will rise from £26,200 to £38,700.

What does this mean for clients in Wiggin’s key sectors, such as digital content and film & TV?

First of all, it might be helpful to clarify the approach to salary levels under the Skilled Worker route, since it can be confusing. Salary levels underpin the Skilled Worker system, and it’s very important that the right salary is paid.

There are various thresholds which apply, in particular the general threshold, but also a “going rate” which is based on the specific occupation someone will perform.

In many cases, the going rate for a particular occupation is already higher than the general threshold. For example, for a TV production assistant, the going rate is currently £29,200 per annum, and for a software developer, it is £34,000. In fact, both of these examples are also on the Shortage Occupation List and so benefit from a further discount, but let’s park that for now.

A Skilled Worker must be paid the higher of the applicable thresholds. There is also a requirement to pay at least £10.75 per hour, which might mean having to make some tricky calculations.

The going rate is increasing too. The going rates are based on ONS’s Annual Survey of Hours and Earnings, which sets out the average annual earnings within each specific occupation. Rates are currently set at the 25^th percentile and will increase to the 50^th percentile. For a software developer, this means that the going rate will be increased to £49,430.

So, the £38,700 isn’t the whole story. For some occupations, the going rates will increase beyond that threshold, and the higher threshold will apply.

The position is going to be exacerbated because, along with the salary changes, the Shortage Occupation List is also being abolished. Having an occupation on this list means a further 20% discount on the going rate, and a reduction in the general threshold.

The Shortage Occupation List is being replaced with an Immigration Salary List. The details of that list are currently being worked out by the Migration Advisory Committee, who are expected to report back soon. It is likely that if an occupation is afforded a discount, then it won’t be quite so generous, and there are expected to be far fewer occupations on the list.

Big changes then, though they are unfortunately likely to disproportionately affect younger people, who are starting their careers and often paid less, and women, who are also often paid less than their male equivalents. They will also disproportionately affect jobs where the going rate was close to, or less than, the general threshold. The Skilled Worker system underwent significant reform as a result of Brexit, with the minimum skill level for roles being significantly reduced. These changes are, in effect, a swing in the other direction, pricing many types of roles out of contention.

The good news, if there is any, is that the changes will not affect those who are already on a Skilled Worker visa. For workers who are about to apply for the visa, whilst the legal detail is yet to be published, normally UK immigration law changes will only take effect for applications made after a certain date. This means that even if time is getting really tight just before the changes, it might be possible to get an application in prior to the date and benefit from the rules as they stood, even if the decision comes afterwards.

The government has confirmed that they expect existing Skilled Workers’ pay to progress at the same rate as resident workers. Skilled Workers would, therefore, be subject to updated per occupation rates set at the 25th percentile using the latest pay data when they next apply to change employment, extend their stay, or settle.

There will be an exemption from the salary rises for those on the Health and Social Care Visa route. They will not be required to meet the £38,700 salary threshold applied to Skilled Workers more generally. Education workers and others on national pay-scales will also be exempt from this requirement.

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Acas has published an updated draft of the Statutory Code of Practice for flexible working (the “Draft Code”). The final version is likely to be published alongside the Employment Relations (Flexible Worker) Act 2023 (the “Act”), which should come into force in April 2024.

The aim of the Draft Code is to ensure that flexible working requests are handled reasonably and provide practical guidance to employers on how to handle flexible working requests. There are some clear themes for employers that emerge throughout Acas’ guidance, such as taking a collaborative approach to consultation, strengthening good practice principles in relation to flexible working and highlighting the importance of transparency and communication with employees.

Following a public consultation, Acas made a number of amendments and clarifications to its draft guidance, including:

• where the employee’s original request cannot be fully met, employers should carve out time with the employee to discuss any alternative flexible working options that may be available and suitable for both sides;

• if a flexible working request has been accepted, a formal meeting is no longer required;

• the list of categories of companions allowed to accompany an employee to a flexible working request meeting has also been extended to include an official employed by a trade union. While there is no statutory right to be accompanied at meetings, the Acas guidance states that allowing an employee to be accompanied remains good practice; and

• all organisations should ensure that, where possible, a manager not previously involved in considering a request and who has sufficient authority to make a decision handles any appeals.

While the legal right to make a flexible working request will shortly become a day one right and, under the new Act, employees will be entitled to make two flexible working requests, employers will still have considerable discretion to reject a flexible working request. Indeed, the Act retains the eight grounds of refusal and the Draft Code provides a clear guide on how employers can rely on the legitimate reasons to reject requests whilst ensuring fairness and compliance with the Act.

As the implementation of the Act is just around the corner, employers should be looking to update their flexible working policies to comply with the incoming changes to the Act and ensure that their current policy aligns with the spirit and guidelines of the Draft Code.

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In an industry full of successful, trailblazing women, it is disheartening (though perhaps, sadly, not unsurprising) to hear that women in the music industry continue to face misogyny and discrimination.

The Women and Equalities Committee’s recent report, ‘Misogyny in Music’, highlights the endemic gender issues in a sector that is ‘dominated by self-employment and gendered power imbalances’. The report found that women in the music industry not only encounter limitations in opportunity, but also sex discrimination, sexual harassment and unequal pay.

In its report, the Committee has called upon the government to take legislative action to protect these women, making numerous recommendations including:

• amending the Equality Act 2010 (“EqA 2010”) to: (i) provide freelancers with the same level of protection as employees in relation to discrimination, and (ii) provide clarity on which freelancers are currently protected under the EqA 2010;

• improving the protection for individuals facing intersectional inequality by bringing into force section 14 of the EqA 2010 (combined discrimination: dual characteristics);

• imposing a proactive duty on employers to protect their workforce from third-party sexual harassment;

• increasing the limitation periods for discrimination and harassment claims from 3 months to 6 months; and

• prohibiting the use of NDAs in cases involving sexual abuse, sexual harassment or misconduct, bullying or harassment, and discrimination relating to a protected characteristic.

Some of these recommendations are arguably already catered for in the law or within upcoming legislation, but the suggestions of an extension to the limitation period for such claims (which has been mooted many times previously) and restrictions on confidentiality provisions would clearly be the most significant changes for employers.  The report also makes recommendations for both the government and the industry to take forward, including but not limited to:

• increasing investment in diverse talent;

• requiring record labels to publish statistics on the diversity of their workforce;

• providing mandatory equality, diversity and inclusion training;

• implementing licensing requirements, which focus on tackling sexual harassment, for music venues, studios and the security staff who attend them; and

• improving childcare support and providing better flexible working arrangements.

The government has two months to respond to the Committee’s report.

Takeaway: These issues raised are obviously not isolated to the music industry, although it is sad that, yet again, another creative sector is facing such concerns, unfortunately, systemic. If the government decides to respond to the consultation and begins to implement any of the report’s recommendations, the impact would likely be felt by not only the music industry but also the creative sector as a whole. We will continue to monitor and keep you updated.

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