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

This month’s edition covers anticipated changes to employment law in 2024, explores whether “heat of the moment” resignations should be accepted as formal resignations, discusses the expansion of permitted activities under the latest Statement of Changes to the Immigration Rules and sets out the practical implications of the Workers (Predictable Terms and Conditions) Act 2023.

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.

Changes in Employment Law in 2024
EAT corrects Tribunal’s change of heart on “heat of the moment” resignations
Expanded permitted activities for visitors
The good ol’ 9-5: workers receive statutory right to request predictable working patterns

While we are only a few weeks into the New Year, we have unfortunately already had to advise a number of clients in relation to redundancy processes within their companies, and this sadly looks set to continue with a number of games businesses seemingly exposed to cost cutting pressures at the start of the year. Therefore, despite having featured this video before, we thought it would be helpful to provide another link to Seth and Ellie’s Wiggin+ piece discussing the risks and considerations relevant to restructuring and redundancy processes, in case this proves useful to some of you.

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.

2024 is going to be a big year for employment law. While we expect many legal shakeups in the year ahead, we’ve identified eight key changes that should be on employers’ radars in 2024:

• The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023: From 1 January 2024, record keeping requirements under the Working Time Regulations 1998 have been reduced and consultation requirements under the Transfer of Undertakings (Protection of Employment) Regulations 2006 simplified. For holiday years commencing on 1 April 2024 onwards, simplified holiday pay calculations and rolled-up holiday pay will be permitted for irregular hours and part-year workers. We cover the ins and outs of rolled up holiday pay in our recent blog.

• Employment Relations (Flexible Working) Act 2023: From 6 April 2024, employees will be entitled to make two flexible working requests within a 12-month period (once secondary legislation has been implemented). A response to both the initial request and any appeal must be heard within two months from the date the request was made. This will be a day-one right, meaning that employees will not need to have the previously required 26 weeks of continuous employment before they can make a flexible working request.

• Protection from Redundancy (Pregnancy and Family Leave) Act 2023: Currently employees on maternity leave, shared parental leave and adoption leave have the right to be offered first access to suitable alternative vacancies in a redundancy situation. From 6 April 2024, the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 extends this protection to a wider group, which includes those returning from maternity, adoption leave and shared parental leave, employees who have recently suffered a miscarriage, and pregnant employees during a protected period of pregnancy.

• Workers (Predictable Terms and Conditions) Act 2023: Although its implementation date is uncertain (but expected to be September 2024), eligible workers will be able to request more predictable working patterns if their current engagement lacks predictability. The concept of “unpredictable” is likely to be quite wide given that guidance suggests that a fixed-term contract of 12 months or less lacks predictability. We discuss the practical implications of this Act in more detail in our update below.

• Worker Protection (Amendment of Equality Act 2010) Act 2023: From (what is expected to be) October 2024, employers will have a proactive duty to take reasonable steps to prevent sexual harassment in the workplace. The Act will expand on the existing anti-harassment provisions currently contained within the Equality Act 2010.

• Neonatal Care (Leave and Pay) Act 2023: On top of maternity and paternity leave entitlements, eligible parents with babies in neonatal care will be entitled to up to an additional 12 weeks’ leave. Additionally, employees who meet minimum earnings and length of service criteria will be entitled to be paid at the same rate as statutory maternity / paternity pay. The new entitlements are expected to take effect in April 2025.

• Carer’s Leave Act 2023: From 6 April 2024, employees will be permitted to take one week of flexible unpaid leave to provide or arrange care for a dependant with a long-term care need. Although the Act became law on 24 May 2023, it lacked the regulations which set out how the entitlement would work. These regulations have now been drafted and set out the particulars behind the new right.

• National living and minimum wage rise: In the Autumn Statement, the Government announced increases to the national living and minimum wage which will apply from 1 April 2024. Notably, for those aged 21 and over, the national living and minimum wage will increase by 9.8% to £11.44.

We will be covering these updates in more detail across the year. However, if you want to stay ahead of the curve, we’d be happy to answer any questions or help update your policies to account for these upcoming changes.

Back to top

Omar v Epping Forest District Citizens Advice [2023] EAT 132

Facts: Mr Omar, an employee of Epping Forest District Citizens Advice (“EFDCA”), resigned from his employment in the “heat of the moment” during an altercation with his line manager. Following the meeting, Mr Omar refused to confirm his resignation in writing and instead sought to formally retract it. EFDCA did not accept this and treated his employment as terminating on one month’s notice. Mr Omar brought proceedings for unfair dismissal and wrongful dismissal and argued that his situation fell within the “special circumstances” exception i.e., a decision taken in the heat of the moment can oust the general rule that an employer is entitled to rely on unambiguous words of resignation.

Judgment: The EAT held that the employment tribunal had erred in finding that Mr Omar had resigned and allowed his appeal. The EAT reinforced the orthodox position that an employee who has properly given notice of termination has no right to unilaterally withdraw it and rejected the notion that there is a “special circumstances” exception for heat of the moment decisions. The employment tribunal was incorrect to refer to this and should have instead applied an objective test to determine whether it would have appeared to a reasonable employer in all the circumstances that Mr Omar “really intended” to resign. To be effective, a resignation or dismissal must be “seriously meant” and/or “conscious and rational”, which requires a detailed factual analysis of the circumstances.

Take away: This case confirms that the law will not allow for a “change of heart” and resignations will only be deemed ineffective in circumstances where the resignation was not “really intended” by the employee. While this will almost always depend on the relevant facts, it is good practice for employers to be mindful of the validity of resignations made by employees who are visibly angry or upset at the time notice is given.

Back to top

The latest Statement of Changes to the Immigration Rules for visitors to the UK somewhat expands the permitted activities allowed in an intra-corporate context, and now specifically permits “remote work”, provided this isn’t the purpose of the visit. Additionally, the Permitted Paid Engagement route is now no longer a separate category of visitor permission requiring a specific grant on entry.

The expansion of permitted activities for visitors is good news (particularly in the context of lots of bad news on the immigration law front), however it’s increasingly difficult to square the quite complex syntax of the visitor rules with the way the visitor route operates in practice. Significant numbers of non-visa nationals now never see an immigration officer and are instead granted permission to enter by virtue of passing through an e-gate (and technically speaking the Immigration (Leave to Enter and Remain) Order 2000 (as heavily amended)).

Most visitors entering in this way are blissfully unaware, and likely will never become aware, that there is a complex set of rules which dictate what they can and cannot do. Even if a visitor did take time to read the rules, they are not the easiest to interpret (and, in some cases, could really be interpreted to fit the individual’s preference).

Take, for example, the new intra-corporate rule: you can now work directly with clients! However, this only applies if: “(a) the employee’s movement is in an intra-corporate setting and any client facing activity is incidental to their employment abroad; and (b) these activities are required for the delivery of a project or service by the UK branch of the Visitor’s employer overseas, and are not part of a project or service that is being delivered directly to the UK client by the Visitor’s employer overseas.”

Nice and clear then, and realistically if a business had an arrangement that through a certain lens was quite close to this, a business might decide to take the risk of getting it wrong. However, like everything immigration law related, there are often disproportionately onerous penalties for taking the wrong path.

Back to top

In September 2023, the Workers (Predictable Terms and Conditions) Act 2023 received Royal Assent, granting eligible workers the statutory right to request a more predictable working pattern if their current engagement lacks predictability.

A working pattern refers to the number of hours worked, the days and times of work, or the length of the contract. Rather unhelpfully, there is no light shed on what a ‘lack of predictability’ means but Acas’ draft code states, by way of example, that a fixed-term contract of 12 months or less lacks predictability.

To make a statutory request, a worker must have worked for the employer at least once in the month in the period before the 26 weeks leading up to the day of the request. It is expected that new regulations will require a worker to have at least 26 weeks of non-continuous service.

The process for making a request closely mirrors the flexible working regime in that requests must be made in writing, state the change being requested and the date on which the worker would like it to come into effect. A worker may make two statutory requests within any 12-month period although there may only be one live request at any one time. Requests must be accepted unless there is a genuine business reason not to, based on one or more of the prescribed grounds which are broadly drafted and include: the burden of additional costs, a detrimental effect on other aspects of the business, and insufficient work available for the periods the worker proposes to work. The process and requirements differ slightly for agency workers.

All requests must be dealt with in a reasonable manner and decided within one month, otherwise employers could be liable for financial penalties, which are to be set out in the new regulations and expected to be limited to 8 weeks’ pay.

Take away: Given that many Film and TV crew are engaged on fixed-term contracts and, in many cases, the producer can nominate the working days, working day pattern and require crew members to work 6th and/or 7th days on request, it is likely many engagements may be captured under the Act. If the 26-week minimum requirement is imposed, this will likely exclude daily crew, extras and weekly crew on smaller productions. However, it is possible that weekly crew working on longer shoots will be caught.

It is probably unlikely crew will request permanent contracts given the nature of the industry and, even if they do, producers will likely be able to rely on the grounds stated above. However, eligible crew may look to make a request for more predictable hours and days of work with respect to overtime and 6th and 7th days.

How each producer deals with the Act is likely to differ across the industry, with some productions spanning 26 weeks wanting to put policies in place to deal with requests, whilst others may prefer not to draw attention to something that may not become an issue and has restricted penalties.

Back to top