With the time pressures of working in Early Years and Play settings, it is often difficult for setting Managers, Owners & Committees to keep abreast of the continual changes to employment law. We have put together a summary of key employment changes to be prepared for and how they might affect the running of your setting.

Minimum Wage Increases and Age Band Changes – 1 April 2024

From 1^st April the National Minimum / Living Wage (NMW / NLW) increases became effective and the age bands changed as below:

• NLW for workers aged 21 and over                                       : £11.44 per hour
• NMW for workers aged 18 – 20                                              : £  8.60 per hour
• Young workers aged 16 – 17                                                  : £  6.40 per hour
• Apprentice rate (19 or over and in 2^nd year onwards)            : £  8.60 per hour
• Apprentice rate (aged under 19 or 19+ and in 1^st year)         : £  6.40 per hour

Remember to check your staff ages as the NLW age band has reduced to 21 and over (previously 23 and over) and the new rates became effective from the 1^st April, not the date of your payroll.  Don’t forget to budget for the additional pension and employers NI contributions (where applicable) and if a salary increase is applicable a new contract variation letter will need to be sent to each employee.

Statutory Holiday Pay & Holiday Accrual – 1 April 2024

The rules on holiday pay have changed meaning that for people working irregular hours, or who are part year workers, rolled up holiday pay (where holiday is paid in the same pay period that it is accrued) is permitted and a 12.07% accrual method for calculating holiday pay will apply.  It must be clear on the employee’s payslip each month what is ‘normal’ pay and what is holiday pay.

The rules changed from 1^st April 2024, but can only be applied to a new ‘leave year’.  If your leave year, like ours, starts in September, this won't apply until 1^st September 2024. 

Note: Rolled up holiday does not mean a pay rate that includes holiday entitlement.

Flexible Working – 6 April 2024

Previously any employee who had worked in an organisation for 26 weeks or longer was entitled to make one formal flexible working request during any 12-month period. The Employment Relations (Flexible Working) Act 2023 came into effect from 6^th April 2024 and this means the following:

Employees:

• have the right to request flexible working from day one of employment.
• can submit two flexible working requests in any 12-month period.
• no longer need to explain the effect the change will make to the employer and how this may be dealt with.

Employers:

• must respond within 2 months (previously 3 months).
• must consult with employees before a flexible working request can be refused, including exploring alternative options.

ACAS have produced a draft Code of Practice on handling requests for flexible working which can be found on the link here. 

This Code provides guidance to employers and employees on the statutory right to request flexible working as set out in the Employment Rights Act 1996 (as amended) and regulations made under it.

Having a clear policy and procedure for handling statutory requests for flexible working can be helpful in making everyone aware of what is expected even if you already operate an informal flexible working request system.

Carer’s Leave Act 2023 – 6 April 2024

This is a new act that allows employees with caring responsibilities to take one week’s unpaid leave per year to give or arrange care for a dependant who has:

• a physical or mental illness or injury that means they’re expected to need care for more than 3 months
• a disability (as defined in the Equality Act 2010)
• care needs because of old age

A dependant could be a spouse, civil partner, child, parent or person who lives in the same household as the employee and relies on them for care.

This is a day one right (i.e. it applies from the first day of employment) and the following applies:

• The leave is unpaid if taken.
• The leave can be taken as half days, full days or in blocks.
• Entitlement is one week in a rolling 12 month period.  (If an employee works 4 days per week, they can take 4 days of carer’s leave.)
• Notice of a minimum of 3 days must be given for a half or one full days’ leave. If the request is for more than one day, the notice period must be at least double the time requested e.g. 2 days requested, 4 days’ notice must be given.
• The request does not have to be in writing.
• Employees do not need to give evidence of their dependent’s care needs.
• Employers cannot refuse a request for carer’s leave but they can ask the employee to take it at a different time.  This can only be done if the employee’s absence would cause serious disruption to the setting.  If delayed the employer must:
• • agree another date within one month of the requested date for leave
  • put the reason for the delay and the new date in writing to the employee within 7 days of the original request, and before the requested start date of the leave.

We know that a lot of employees in the early years and play sector do have caring responsibilities and that lots of settings are already flexible and where possible (taking account of ratios) accommodate staff needs. As such, you are probably already meeting the requirements of this new legislation.  You should ensure that your policies reflect this and are applied consistently and fairly.

Paternity Leave - April 2024

The Paternity Leave (Amendment) Regulations 2024 came into force in April.  The changes aim to make paternity leave more flexible for parents.

Parents now have the option to split their two weeks of statutory paternity pay into two separate week-long blocks.  These can be taken at any point in the 12 months after the birth (or placement in the case of adoption) and the parent only has to give 28 days notice of when they want to take the leave. 

Previously it was necessary to give 15 weeks notice in advance of the expected birth or adoption date of the dates when the parent intended to take the leave.  Now they must notify the employer of their eligibility 15 weeks before the expected birth or adoption date, but only need to give 28 days notice of the actual dates that they intend to take.

Redundancy Protection – 6 April 2024

The Protection from Redundancy Act (Pregnancy and Family Leave) came into force on 6^th April 2024. This means that employees who are pregnant or returning from maternity, adoption or shared parental leave will gain priority status for redeployment opportunities in a redundancy situation for a period of up to 18 months after the birth of the child (the actual amount depends on the type of leave taken). This is extending the right which previously only applied to those on maternity, shared parental leave or adoption leave.

Priority status means that these employees should have priority access to redeployment opportunities over other redundant employees. It doesn’t mean that they can’t be made redundant at all.

We recommend that you update your policy to reflect this extension of the redundancy protection but if you find yourself in this situation, we strongly recommend that you take professional advice.

IR35 – 6 April 2024

This is related to self-employed contractors and PAYE. It shouldn’t be an issue as you shouldn’t have anyone self-employed in a setting.  If you have, contact us for more information.

TUPE consultation – 1 July 2024

From 1 July 2024, settings with fewer than 50 employees undergoing TUPE transfers will be able to consult directly with employees if no representative is in place already.

Predictable Working Pattern – expected September 2024

This act relates to employees whose hours of work lack predictability such as agency workers, those on zero-hour contracts or contracts that specify core hours that can be varied according to an organisation’s needs.

The Act applies to any worker where there is a lack of predictability in relation to the work that the worker does for the employer or in regard to any part of the worker’s work pattern. This covers a range of things including the number of hours worked, the days of the week worked, the times worked on those days, and the length of the contract.

Whilst employers will have a requirement to respond within a month to such requests, it does not mean that employees will have their working pattern automatically changed. It is only a right to request a change. Employees can only make a request twice in a 12-month period and only for certain circumstances. It is anticipated that there will also be a requirement for employees to have worked a minimum of 26 weeks for the employer, and 12 weeks continuously in that time. Employers should follow an appropriate procedure to ensure the statutory rights of the employee. A consultation on the accompanying statutory code ran until January and the responses are currently being reviewed. Until the final version of this is published you can find the draft code here. 

This is unlikely to affect many settings as even for bank staff who may be on zero-hour contracts, the timings and days will be relatively consistent.

Neonatal Care (Leave and Pay) Act - expected date TBC (possibly 2024, more likely April 2025)

Under this Act, employees who are parents of premature babies who are cared for in a health setting for more than one week before they reach 28 days of life will be entitled to 12 weeks of additional paid leave.

This legislation will apply to employees who have been employed for a minimum of 26 weeks prior to leave being requested with an average earning of least £123 a week.

Other employment legislation to look out for which may affect some Early Years or Play settings:

Immigration - expected Spring 2024

There have been a number of announcements aimed at restricting work migration from Spring 2024:

• Increasing the minimum salary requirements under skilled worker route
• Removing the salary discount for jobs on the shortage occupation list
• Increasing the financial threshold for family applications

Should any settings utilise these programmes they should revisit their policies and practices in these areas as it is foreseen that settings using these will incur increased costs.

Fire and rehire – expected Spring 2024

The final version of the Statutory Code of Practice on Fire and Rehire is expected Summer 2024.