Top legal issues for HR leaders in 2024

Menopause, holiday pay and non-compete clauses are among the areas people teams will need to consider in the coming year, says Domonique McRae

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Proposed limits to length of non-compete clauses 

The government is proposing to introduce legislation to cap the length of non-compete clauses in employment contracts to three months. Whether this will apply to existing or new non-compete clauses is unknown. 

In anticipation of the legislation being passed, employers should:

  • ensure confidentiality clauses are comprehensive to safeguard the business against ex-employees disclosing confidential information to competitors; 
  • consider introducing or lengthening existing garden leave provisions to restrict an employee's presence in the marketplace; and 
  • consider amending contracts to give the employer discretion to alter working arrangements after giving or receiving notice to limit the kind of work that can be undertaken and/or restrict contact with key clients or employees.

Before any contractual amendments are made, consideration should be given to the obligation to consult with affected staff members. 

Discrimination 

Menopause 

HR professionals need to be aware of menopausal symptoms and the potential impact this may have on individuals and their performance in the workplace. While menopause is not a protected characteristic in law, recent case law shows that individuals are seeking to rely on existing protected characteristics such as sex, age and disability to bring a discrimination claim where they feel they have been treated less favourably or put at a disadvantage as a result or their menopause symptoms. 

In each case it is worth considering whether to: (i) seek medical advice from occupational health or the employee's GP where menopausal symptoms have been displayed or disclosed; and (ii) investigate any underlying reasons for behaviour or poor performance so as to reduce the risk of a discrimination claim. 

Fertility treatments 

There are a growing number of discrimination claims from employees who are undergoing fertility treatments and who have not felt supported and experienced unfair treatment as a result. 

Employees who are undergoing IVF have pregnancy rights once an embryo transfer has taken place, and continue to have the same rights throughout their pregnancy and maternity as with non-IVF pregnancies. Furthermore, an individual is also protected against pregnancy discrimination for two weeks after finding out that the embryo transfer was unsuccessful. 

Positive change is needed in the workplace to improve inclusiveness and workplace culture and to support those undergoing fertility treatment; for example, by updating contracts or workplace policies to allow time off (paid or unpaid) for fertility treatment. In the long run, this is likely to aid staff retention and avoid unusual or unexpected dips in an employee's performance. 

Holiday pay 

The government has now responded to its consultation paper on holiday pay and other issues. Key points to note include: 

  • The reintroduction of 'rolled up' holiday pay from 1 January 2024, enabling employers to pay atypical workers an enhancement to their normal pay to account for their holiday entitlements. Holiday will accrue at 12.07 per cent of hours worked and be paid at a rate of 12.07 per cent in a pay reference period. 
  • The government will clarify what must be included in normal remuneration for holiday pay purposes. 
  • Some EU case law will be restated, particularly those relating to the entitlement to carry over annual leave when a worker is unable to take it because they have been on maternity or other related leave, including sick leave. 

HR teams within businesses that engage atypical workers or those whose pay varies are encouraged to keep abreast of these changes as they are likely to create wholesale alterations to the existing landscape. 

Domonique McRae is an employment lawyer at Payne Hicks Beach