A range of decisions from across the spectrum of employment jurisdiction this month as we take a look at some of the most recent cases. A tribunal determined that a consultant contracted through a service company was a worker, making deductions for employer NICs unlawful. The EAT overturned a re-engagement order for an unfairly dismissed employee due to errors in assessing contributory conduct and the issue of the employer’s lost trust. The EAT also found that a tribunal failed to address key issues in a race discrimination claim where an employee alleged her job re-evaluation requests were mishandled due to her ethnicity. And the Court of Appeal upheld that a tribunal erred in determining the timing of a discrimination claim where it was based on delayed knowledge of key facts.
Workers: Consultant engaged by recruitment agency via service company was a worker
Remedies: EAT declared tribunal erred in ordering re-engagement of employee
List of Issues: Tribunal erred in failing to address race discrimination allegation not pleaded but included in list of issues
Discrimination: Tribunal erred in determining claimant’s date of knowledge of claims
Workers: Consultant engaged by recruitment agency via service company was a worker
In Appiah v Tripod Partners Ltd ET/2302929/202, an employment tribunal has found that a consultant who contracted with a recruitment agency through a service company was a worker of the agency under the Employment Rights Act 1996 (ERA 1996).
Ms Appiah was an independent social worker. Tripod Partners Ltd, a social care recruitment agency, placed her on an assignment to the Home Office. The Home Office assessed Ms Appiah using HMRC’s CEST tool. It decided she fell inside IR35 and should therefore be taxed as an employee.
Ms Appiah had previously contracted with Tripod through an umbrella company. However, following the Home Office assessment, Tripod gave her the additional options of an arrangement within PAYE or of contracting via a service company. Tripod explained that there were “small differences” in these options. It also confirmed that if she opted for a service company, it would deduct income tax and employee national insurance contributions (NICs) from her hourly pay. She decided to contract via a service company.
Once the contract had been finalised, Tripod made deductions from Ms Appiah’s pay for income tax, employee NICs and employer NICs. Ms Appiah accepted that Tripod was entitled to make deductions for income tax and employee NICs. However, she brought a claim alleging that the deductions for employer NICs were unlawful under the ERA 1996. Tripod argued that Ms Appiah was not a worker, so could not bring a claim for unlawful deductions.
The tribunal noted that the relevant contract was between two limited companies. However, this was not determinative. The efficacy of statutory protections would be eroded if everyone working through a service company was excluded from the rights afforded by ERA 1996.
It was evident that Ms Appiah was a worker. She sent timesheets to Tripod, not invoices. The contract said she was not a worker, but this did not reflect the reality. She worked full-time on her assignment, performing services personally. There was no difference in substance between the contractual arrangements she had been offered; they were simply different ways in which her payment could be channelled to her. She was not in business on her own account and neither the Home Office nor Tripod were her client. There was no route by which the contractual arrangement could genuinely be said to be between two businesses.
The tribunal went on to uphold Ms Appiah’s claim for unlawful deductions from wages in respect of Tripod’s deductions for employer NICs.
Remedies: EAT declared tribunal erred in ordering re-engagement of employee
In British Council v Sellers [2025] EAT 1, the EAT has held that a tribunal erred in ordering the re-engagement of an employee who had been unfairly dismissed following an allegation of sexual misconduct.
Before ordering re-engagement, a tribunal must consider the employee’s wishes, whether it is practicable for the employer to comply with a re-engagement order and, where the employee caused or contributed to their dismissal, whether ordering re-engagement would be just (section 116(3), Employment Rights Act 1996).
In this case, the tribunal found that, while the relevant decision-taker genuinely believed the employee had committed the alleged misconduct, their belief was unreasonably derived from a flawed investigation which the appeal process had failed to rectify. Following this decision, but before the remedy hearing, the employer instructed an independent investigator to undertake a fresh investigation. The investigator concluded that the accuser had been truthful. The employer upheld its gross misconduct finding.
At the remedy hearing, the employer did not argue that the employee had caused or contributed to his dismissal. Instead, it argued that its genuine and rational concerns about his conduct made it impracticable to re-employ him. The tribunal considered itself bound to address the issue of contributory conduct and found that, on the balance of probabilities, the alleged sexual assault did not occur. It held that it was irrational for the employer to have concerns about the employee’s conduct based on the independent investigation which it considered to be flawed in several respects. The tribunal ordered re-engagement. The employer appealed.
The EAT held that the tribunal erred in determining whether the employee had committed the alleged misconduct. Section 116(3) does not mandate the tribunal to make a finding on contributory conduct. Only where the tribunal has made such a finding (at the liability stage or because it was raised on remedy) would it need to consider whether it would be just to order re-engagement.
The tribunal had also erred by losing sight of the fact that practicability had to be determined from the employer’s perspective. It had considered the reasonableness of the independent investigation when it should have considered whether re-engaging the employee was likely to be practicable in circumstances in which the employer had accepted the investigation’s finding that he had committed a sexual assault and considered that he could no longer be trusted. The re-engagement order was set aside.
List of Issues: Tribunal erred in failing to address race discrimination allegation not pleaded but included in list of issues
In Bogdan v The Cabinet Office: Government Digital Services [2024] EAT 177, the EAT has allowed an appeal where an employment tribunal either failed to address, or failed to give adequate reasons for rejecting, a direct race discrimination claim in which the claimant, Ms Bogdan, alleged that her requests to re-evaluate her job grade were not adequately addressed by her employer, and this was less favourable treatment because she is a Romany Gypsy.
Ms Bogdan was a litigant in person when she issued her claim. In the claim form, there was no hint of any suggestion that she had made several job re-evaluation requests or been subjected to race discrimination by having such requests ignored, mishandled or refused. However, an employment judge subsequently conducted case management, which resulted in a list of issues. This stated that the allegation of direct race discrimination included that, from the beginning of her employment, she had made several job re-evaluation requests to her line manager. The thrust of her case, as set out in the list of issues, was that her employer had failed to deal with those requests, which had left her job wrongly graded.
An employment tribunal dismissed all of Ms Bogdan’s claims. She appealed on the basis that the tribunal failed to adequately deal with her direct race discrimination claim, as there was material evidence to which no reference was made and about which no adequate reasons appeared in the judgment.
The EAT allowed part of the appeal relating to the issues contained in the list of issues concerning her repeated job re-evaluation requests. It concluded that the list of issues effectively operated as substantial amendments to the originally pleaded claims in a way that neither Ms Bogdan’s employer nor the employment tribunal had fully appreciated. Despite the fact that her case, as presented at the tribunal, was not her pleaded case, the EAT concluded that the issues contained in the list of issues were squarely before the tribunal, yet it had fundamentally omitted to deal with them. It was therefore not apparent from its reasoning why she was not successful on those issues. This was a serious procedural irregularity, and the EAT remitted those issues to a new tribunal.
The case is a reminder of the importance of the parties and the tribunal being alive to the issues contained in the list of issues and ensuring that these are adequately dealt with in the reasons contained in the tribunal’s judgment.
Discrimination: Tribunal erred in determining claimant’s date of knowledge of claims
In HSBC Bank plc v Chavalier-Firescu [2024] EWCA Civ 155, the Court of Appeal has upheld the EAT’s decision that a tribunal erred in determining the date on which a claimant had sufficient knowledge to bring her discrimination claims.
In July 2018, the claimant learned that her application to join HSBC Bank plc had been unsuccessful and that someone from her previous employer, Barclays, had given her a bad reference. She had ongoing sex discrimination proceedings against Barclays at that time, but only suspected that this was the reason for the bad reference. However, in August and September 2020, information disclosed following her data subject access request led the claimant to believe that she had been considered a very strong candidate by HSBC, but that a senior manager, on learning of her sex discrimination claim against Barclays, had provided negative feedback to her interviewer, leading to HSBC’s decision not to hire her.
The claimant presented claims against HSBC in November 2020 and May 2021. A tribunal struck out the claims, holding that they were presented out of time as the decision not to appoint her was made in July 2018, there was no continuing act, and it was not just and equitable to extend time.
The court held that the EAT had correctly found that the tribunal had erred in striking out the claims. It had failed to explain its reasoning that the claimant was fully aware of the elements of her claim in July 2018 or show that it had taken proper account of the fact that she had only learned information to support her claims in 2020.
Underhill LJ held that where, as in this case, a claimant seeks an extension of time on the basis that they were unaware of important facts material to the viability of their claim, it is necessary for the tribunal to consider the extent of their knowledge, or grounds for suspicion, at the relevant time to assess what justice and equity require. Following Barnes v Metropolitan Police Commissioner UKEAT/0474/05, it will also be relevant to consider whether they should have known or suspected and, if they did, whether it was nevertheless reasonable for them to delay issuing proceedings. The claims were remitted to a different tribunal to consider whether it would be just and equitable to extend time.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
Prior to its success in the general election that took place on 4 July 2024, the Labour Party proposed wide-ranging and fundamental reform of employment law. It promised that several of its reforms would be contained in an Employment Rights Bill (ERB), which was introduced on 10 October 2024.
Together with the draft ERB, on 10 October 2024, the government published a policy paper, Next Steps to Make Work Pay (Next Steps paper), which set out the steps the government intends to take following the publication of the ERB. It confirms that further detail on many of the policies contained in the ERB will be provided through partnership with business, workers and trade unions, regulations, and in some cases codes of practice, after the ERB has received Royal Assent, which is expected to be in 2025.
The ERB makes provision for wide-ranging changes to be made to employment law, including in relation to unfair dismissal, fire and rehire, collective redundancies, zero hours and low hours contracts, trade unions and industrial action, sexual harassment and third-party harassment, statutory sick pay (SSP), flexible working and family leave. In October 2024, the government published four consultations as part of its first phase of consulting relevant stakeholders. Further consultations are expected in 2025, which will deal with matters to be included in supporting regulations.
The existing right to two weeks’ parental bereavement leave following the death of a child under 18 or a stillbirth will be extended to be an entitlement to more general “bereavement leave”, which will apply to the loss of a wider group of persons (clause 14, ERB). Like the current provision for parental bereavement leave, bereavement leave will be a day-one right. Regulations will specify the relationships with a person who has died that will qualify an employee to take bereavement leave, and the government will consult on the details to be set out in secondary legislation.
The ERB strengthens redundancy rights and protections by removing the “at one establishment” test for collective redundancies, meaning that the threshold of 20 or more redundancies will be met when that number is impacted across the entire business, rather than at one site. This will increase the obligations on multi-site employers to collectively consult and will require them to keep rolling records of redundancies proposed across their multiple sites. In addition, the government is consulting about raising the current level of the protective award from 90 to 180 days’ pay, or to an uncapped amount and allowing employees to claim interim relief where they have a claim for a protective award or a claim for unfair dismissal in a fire and rehire scenario. During 2025, the government also plans to consult on increasing the minimum collective consultation period when an employer is proposing to dismiss 100 or more employees from 45 to 90 days.
The practice of fire and rehire has received widespread negative press coverage in recent years following a number of high-profile cases. These include the dismissal of almost 800 employees by P&O Ferries in 2022, to be replaced by lower-paid agency staff, and also a case where Tesco (unsuccessfully) sought to use the practice to overturn preferential pay rates it had agreed on a “permanent” basis with staff who agreed to relocate.
The ERB would restrict the ability of an employer to use dismissal and re-engagement (known as “fire and rehire”) as a lawful means of changing an employee’s contractual terms, save where there is genuinely no alternative, due to financial difficulties which threaten the employer’s ability to carry on business as a going concern. It does this by making any dismissal automatically unfair where the reason for dismissal is that the employee did not agree to the employer’s attempt to vary their terms and conditions, or because they intended to employ another person to carry out substantially the same role. On 21 October 2024, the government published a consultation on strengthening the remedies against abuse of the fire and rehire and collective consultation rules (see above). The consultation closed on 2 December 2024.
It is not clear what the government’s intentions are with regard to the Statutory Code of Practice on Dismissal and Re-engagement which was introduced under the previous Conservative government but only came into force on 18 July 2024. Despite its previous strong criticisms of the Code as being “inadequate”, it remains in force for now. It is possible that the government still intends to replace the Code with another one containing more stringent obligations on employers, as envisaged in the Plan to Make Work Pay, although any new Code of Practice would need to be consulted on before it could receive parliamentary approval.
Future regulations made under clause 26 of the ERB will require employers with 250 employees or more to develop and publish equality action plans showing what steps they are taking in relation to prescribed matters related to gender equality and to publish prescribed information relating to their plans.
Matters relating to gender equality will be those concerning the advancement of equality between male and female employees and will include addressing the gender pay gap and supporting employees going through the menopause. In November 2024, proposed amendments to the ERB were published which will be considered by the Public Bill Committee. An amendment proposed by the government would require employers to include an explanation in their equality action plans on how they are supporting employees with menstrual problems and menstrual disorders.
The government will consult the Equalities and Human Rights Commission (EHRC) on the content of the regulations before they are published.
The ERB contains provisions permitting the Secretary of State to delegate their labour market enforcement functions to a public authority and to appoint enforcement officers. The Next Steps paper confirms that this will be the new Fair Work Agency (FWA), which will bring together the existing enforcement functions of HMRC (in relation to the national minimum wage (NMW)), the Employment Agency Standards Inspectorate (EASI) and the Gangmasters and Labour Abuse Authority (GLAA). The introduction of a single enforcement body has long been on the cards and was one of the government’s key manifesto pledges. However, whether the FWA succeeds in improving enforcement is likely to depend on the level of financial resources it is allocated, which is not yet clear. It is not yet known when the FWA will be established, although it is likely to be a number of years before it is fully operational.
Paternity leave and unpaid parental leave will become a day-one right for eligible employees. The government also stated in the Next Steps paper that it intends to make it unlawful to dismiss employees who have been pregnant within six months of their return to work, except in specific circumstances. Regulations are awaited to define what these specific circumstances will be. The government also stated in the Plan to Make Work Pay that it would conduct a review of the current parental leave system during the first year of the Labour government, so this is expected by July 2025.
The existing day-one right to request flexible working under Part VIIIA of the ERA 1996 (sections 80F to 80I) (as amended) together with the Flexible Working Regulations 2014 (SI 2014/1398) (Flexible Working Regulations) (as amended) will remain, but the ERB will introduce a reasonableness test into the regime, providing that employers will only be able to rely on one of the statutory reasons to refuse a request for flexible working where it is “reasonable for the employer to refuse the application on that ground or those grounds”. In addition, employers will be required to state and explain what the ground for any refusal is and why the refusal is considered reasonable. The Next Steps paper confirmed that there will be a consultation to develop the detail of the approach to be taken on flexible working.
The ERB will amend section 40A of the EqA 2010 to require employers to take “all reasonable steps” to prevent sexual harassment, reflecting the wording originally contained in the Worker Protection Bill. Currently, employers are required to take reasonable steps to prevent sexual harassment of their employees during the course of their employment under the Worker Protection (Amendment of Equality Act 2010) Act 2023, which came into force on 26 October 2024. Employers will also be under a duty to take “all reasonable steps” to prevent third-party sexual harassment, and to prevent third-party harassment in relation to the other relevant protected characteristics.
In addition, the ERB will amend the whistleblowing provisions of the ERA 1996 to make it clear that reporting sexual harassment will amount to a qualifying disclosure.
The ERB provides employees with the right to SSP from the first sick day rather than from the fourth day and removes the requirement for the employee’s earnings to be not less than the lower earnings limit to be eligible for SSP.
On 21 October 2024, the government published a consultation on SSP. The consultation, which closed on 4 December 2024, sought views on what the percentage of average weekly earnings should be for the purposes of calculating the rate of SSP for some low-earning employees.
The ERB will repeal the Strikes (Minimum Service Levels) Act 2023. While nearly all of the restrictions placed on industrial action and picketing by the Trade Union Act 2016 will be removed, the time-limited mandate for industrial action following a ballot will remain. The ERB will introduce the right to a statement of trade union rights and the right for trade unions to access workplaces, it will simplify the rules on trade union recognition, introduce protection against detriment for taking industrial action and increase protection against dismissal for taking industrial action. These are summarised below.
The Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992) will be amended to require employers to give workers a written statement advising that they have the right to join a trade union at the same time as providing the worker’s section 1 statement and at other prescribed times.
Unrecognised unions will be provided with the opportunity to recruit and organise within a workplace with the aim of gaining recognition. Trade unions and employers will be able to enter “access agreements” providing union officials with access to the employer’s workplace for the purposes of meeting, representing, recruiting or organising workers, or facilitating collective bargaining (but expressly not to organise industrial action). The union may apply to the Central Arbitration Committee (CAC) to determine workplace access if the employer fails to respond to its request for an access agreement. Either party may make an application where negotiations are unsuccessful.
The statutory scheme for trade union recognition set out in Schedule A1 to TULRCA 1992 will be amended to:
Enable the 10% membership threshold for the CAC to accept a trade union recognition application (and at other stages of the recognition scheme) to be reduced to between 2% and 10%.
Remove the requirement at the application stage (and at other stages of the recognition scheme) for a union to demonstrate that there is likely to be majority support for trade union recognition.
Remove the 40% support threshold from recognition ballots.
Protection against detriment for taking industrial action
TULRCA 1992 will be amended to provide workers with the right not to be subjected to detriment of a prescribed description by any act (or any deliberate failure to act) by their employer, if the act (or failure) takes place for the sole or main purpose of preventing or deterring the worker from taking protected industrial action, or penalising the worker for doing so.
TULRCA 1992 will be amended to provided that for the full duration of an official, lawful strike and after that strike has concluded, an employee will be automatically unfairly dismissed where the reason (or, if more than one, the principal reason) for the dismissal is that the employee took such protected industrial action.
The government’s consultation, Making Work Pay: creating a modern framework for industrial relations, which closed on 2 December 2024, sought views on strengthening provisions to prevent unfair practices during trade union recognition, simplifying industrial action ballots, reducing notice of industrial action, extending the permitted duration of industrial action, updating the law on repudiation of industrial action and on prior call, and on enforcement of the trade union right to access workplaces.
In a set of amendments to the ERB published in November 2024, the government confirmed that it would extend the time limits for bringing all tribunal claims from three to six months. It is not yet clear when this measure will take effect.
Under the ERB, the right to bring a claim for unfair dismissal will become a day-one right for employees, subject to a new modified “light-touch” dismissal procedure applicable in most cases during an initial period of employment, which will be set by regulations but must be between three and nine months. It removes the two-year qualifying period for ordinary unfair dismissal protection by repealing section 108 of the Employment Rights Act 1996 (ERA 1996). Much of the detail will be contained in regulations and is as yet unknown, but this will represent a hugely significant change in the unfair dismissal landscape. To allow for full consultation and a substantial period for employers to prepare and adapt, the unfair dismissal reforms will take effect no sooner than autumn 2026.
In November 2024, proposed amendments to the ERB were published which are being considered by the Public Bill Committee. A government amendment will allow the Secretary of State to specify a cap on the compensatory award for employees unfairly dismissed during the initial period of employment provided for in the ERB.
Employee representative bodies and trade unions have long condemned the use of zero hours contracts as a means of abusing vulnerable, low-income workers, and providing no job security, rights or guaranteed income. There is very limited protection for workers on such contracts. The ERB will introduce a duty on employers to offer a guaranteed hours contract that reflects the hours qualifying workers regularly work over a reference period (to be specified in regulations, but the government suggested in the Next Steps paper that in its view it should be 12 weeks). The ERB also places a duty on employers to provide reasonable notice of shifts, with workers being entitled to compensation if their shift is cancelled, moved or curtailed at short notice.
On 21 October 2024, the government published a consultation on the application of the zero hours contracts provisions to agency workers. The consultation, which closed on 2 December 2024, explored who should be responsible for offering guaranteed hours to eligible workers: the agency or the hirer. The government notes that a difficulty of making agencies responsible is that they have little or no control, since the demand for hours is largely dictated by hirer. Hirers would, therefore, be in a better position to forecast and manage the flow of work. However, requiring hirers to offer guaranteed hours might effectively make them the agency worker’s employer.
In November 2024, proposed amendments to the ERB were published which are being considered by the Public Bill Committee. Substantial government amendments were put forward in relation to zero hours and “low hours” contracts, including new requirements for employers to take reasonable steps to ensure that workers are given specified information in relation to their rights to guaranteed hours during an “initial information period” and to give workers a notice where they consider an exception to the duty to make a guaranteed hours offer applies, or where a guaranteed hours offer that has been made is treated as having been withdrawn.
A draft Equality (Race and Disability) Bill (Race and Disability Bill) was announced in the King’s Speech 2024, to be led by the Government Equalities Office (GEO). It will be published in draft form for consultation and deliver Labour’s manifesto commitment to “enshrine the full right to equal pay in law” for ethnic minorities and disabled people. There is expected to be significant consultation on the draft Race and Disability Bill and so it is anticipated that it will progress more slowly than the ERB.
The Race and Disability Bill will tackle two main issues:
Enshrine in law the full right to equal pay for ethnic minorities and disabled people. This will make it easier for them to bring unequal pay claims, given the existing barriers when bringing pay discrimination claims on the grounds of ethnicity or disability.
Introduce mandatory ethnicity and disability pay reporting for employers with 250 or more employees. This will help to close the ethnicity and disability pay gaps, enabling employers to constructively consider why they exist and how to tackle them.
The Next steps paper also states that the government will create a new regulatory enforcement unit for equal pay.
The Neonatal Care (Leave and Pay) Act 2023 received Royal Assent in May 2023 and was expected to come into force in April 2025 under the previous Conservative government. The government has confirmed this will come into effect on 6 April 2025. HMRC has published a policy paper on the tax treatment of statutory Neonatal Care Pay (see HMRC: Income Tax: tax treatment of Statutory Neonatal Care Pay). The Act will introduce statutory neonatal leave and pay for up to 12 weeks for parents of babies requiring neonatal care, which must be taken within 68 weeks of birth.
The Plan to Make Work Pay stated that a new “right to switch off” would be introduced, providing workers with the right to disconnect from work outside of working hours and not be contacted by their employer. This would follow similar models to those that are already in place in Ireland and Belgium, giving workers and employers the opportunity to have constructive conversations and work together on bespoke workplace policies or contractual terms that benefit both parties.
There is nothing on this new right in the ERB, and in the Next steps paper, the government confirmed that it would take forward the right to switch off through a statutory Code of Practice. It is expected that a consultation on the new code of practice will be issued in 2025.
Gender identity is a highly charged issue with polarised views about, on the one hand, a transgender person’s right to have their identity recognised, and on the other hand, so-called “gender critical beliefs” that a person’s sex is an immutable biological fact and that someone’s gender is different from their sex.
Recent case law has recognised gender critical beliefs as being capable of protection under the Equality Act 2010 (EqA 2010) as a philosophical belief (Bailey v Stonewall and others ET/2202172/2020). This provides scope for conflict with other protected characteristics under the EqA 2010, including the protected characteristic of gender reassignment (Fischer v London United Busways Ltd ET/2300846/2021), and poses a challenge for employers who are responsible for preventing discrimination and harassment in the workplace. In For Women Scotland Ltd v Scottish Ministers, the Inner House of the Court of Session confirmed that the definition of “woman” in section 212(1) of the Equality Act 2010 includes trans women with a gender recognition certificate. The case has been appealed and was heard by the Supreme Court on 26 and 27 November 2024.
In May 2024, the Minister for Women and Equalities issued a “call for input” seeking examples of policies or guidance issued by public bodies, or those that advise public and private organisations, which might wrongly suggest that people without a gender recognition certificate (GRC) have a legal right to access single-sex spaces and services according to their self-identified gender. The call for input on incorrect guidance on single-sex spaces closed on 26 June 2024.
Modern workplaces are increasingly receptive to and reliant on tools powered by artificial intelligence (AI) such as machine learning, GenAI and automated decision-making to perform certain human resources and employee management functions. In addition, the development of GenAI applications, which can be used to perform a variety of work-related tasks, means that AI is more accessible to the workforce than in the past.
In terms of reform in this area, the government’s Next Steps paper, promised that a consultation would be issued on how to implement measures on surveillance technologies and negotiations with trade unions and staff representatives.
Prior to this, the King’s speech, which was delivered in July 2024, announced that the government:
“… will seek to establish the appropriate legislation to place requirements on those working to develop the most powerful artificial intelligence models”.
Labour’s manifesto (Labour: Change), published in June 2024, promised that Labour would create a new Regulatory Innovation Office, bringing together existing functions across government, to help regulators update regulation and to co-ordinate issues that span different sectors, as it considers that regulators are currently ill-equipped to deal with the dramatic development of new technologies. It also promised to ensure the safe development and use of AI models by introducing binding regulation on the companies developing the most powerful AI models.
Labour’s Plan to Make Work Pay, noted that new technologies such as AI have the potential for positive change, including boosting wages, improving productivity and empowering workers. However, given the risks posed, Labour’s approach will be to protect good jobs and ensure good future jobs. It plans to put in place appropriate rights and protections to keep pace with technological change, while safeguarding against discrimination. At a minimum, Labour stated that it will ensure that proposals by employers to introduce surveillance technologies will be subject to consultation and negotiation, with a view to reaching agreement with trade unions or elected staff representatives. This would not override the provisions of any collective agreement relating to surveillance.
Labour’s New Deal green paper, which was first published in September 2021, had previously stated that proposals by an employer to introduce surveillance technologies would be subject to consultation and agreement by trade unions or elected staff representatives, although it was subsequently reported that this new “right” could be implemented by way of best practice advice or secondary legislation, in a perceived watering down of the original pledge.
The EU is taking a more interventionist approach than the UK. A new Regulation, the EU AI Act, was formally adopted by the Council of the EU on 21 May 2024. The EU AI Act applies to public and private actors inside and outside the EU if the AI system affects individuals in the EU, and categorises AI systems into risk levels.
The Platform Workers Directive entered into force on 1 December 2024. Member states will have two years to incorporate the provisions of the Directive into their national legislation. The Directive provides new rights aimed at promoting transparency, fairness and accountability in algorithmic management used in platform work.
Due to the increasing use of AI in the workplace, there is a greater need to assess and manage the associated risks. In March and November 2024, new guidance was published by the government and the ICO specifically aimed at AI use in the HR and recruitment sectors. There are several actions that an employer can take to mitigate the risks, such as undertaking risk assessments and carrying out due diligence with suppliers of AI systems.
From 31 December 2024, the sponsor licence guidance was updated to prohibit Skilled Worker sponsors from passing on the cost of the sponsor licence fee or associated administrative costs or the Certificate of Sponsorship (CoS) fee (for CoS assigned on or after 31 December 2024). Back to the top
Further Information
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
This month sees an emphasis on Equality through a landmark equal pay...
News & Views
Employment Law Case Update – December 2024
Anne-Marie Pavitt,
17th December 2024
Employment Law
In our last update of the year we bring you technical tribunal processes about not including additional claims at tribunal, how to interpret the Equality Act in relation to the definition of “related to” and how to properly assess value in an assessment of injury to feelings.
Tribunals: Employment tribunal entitled to refuse amendment where claimant had made informed decision not to include additional claims in ET1
Race Discrimination: Comments about employee’s accent could be “related to” race for harassment purposes, even if not motivated by race
Sexual Discrimination: Tribunal’s assessment of injury to feelings in pregnancy discrimination case was “totally flawed”
Tribunals: Employment tribunal entitled to refuse amendment where claimant had made informed decision not to include additional claims in ET1
In Vassallo v Mizuho International plc and another [2024] EAT 170, the EAT held that an employment tribunal had been entitled to refuse a claimant’s application to amend her claim to add a whistleblowing complaint and an indirect sex discrimination complaint. The claimant had been legally represented and there was evidence she had taken a conscious decision not to include those claims in the original ET1.
The EAT has held that an employment tribunal had been entitled to refuse a claimant’s application to amend her claim to add whistleblowing claims and an indirect sex discrimination claim, because the tribunal had been entitled to conclude that she had been legally advised and had made an informed choice not to put them in her ET1.
The claimant’s ET1, which had been drafted by solicitors and submitted in March 2023, contained complaints of breach of contract and disability discrimination. Her solicitors then came off the record. In August 2023, the claimant, having instructed new solicitors, applied to amend her claim to add complaints of detriment and automatic unfair dismissal arising from protected disclosures (the whistleblowing claims) and indirect sex discrimination. The tribunal refused the application to amend, and later declined to reconsider that refusal. It found that no good reasons had been given as to why the claims were not included in the ET1, or for the delay in applying to amend. It noted that the claimant had been legally represented, and it was clear from email correspondence in the hearing bundle that her former solicitors had prepared an earlier draft ET1 containing the whistleblowing claims, but the final ET1 had not included them. The tribunal concluded an informed decision had been taken not to include those claims. The balance of injustice was also in favour of the respondents.
The claimant appealed, arguing that the tribunal had made findings of fact not supported by evidence and/or based on erroneous assumptions. She also argued that she had been badly advised and did not know she had a potential whistleblowing claim.
The EAT refused the appeal. The tribunal had heard evidence and submissions from both parties and had been entitled to conclude that careful thought had been given to the drafting of the ET1. The tribunal did not have to adopt an inquisitorial role in relation to the claimant’s state of knowledge; it was up to the claimant what evidence to introduce and whether to waive privilege in her former solicitors’ advice. Furthermore, it did not matter whether it was the claimant or her former solicitors who made the decision not to include the additional claims in the ET1, since the claimant bore ultimate responsibility for her solicitors’ actions.
Race Discrimination:Comments about employee’s accent could be “related to” race for harassment purposes, even if not motivated by race
In Carozzi v University of Hertfordshire and another [2024] EAT 169, the EAT held that an employment tribunal was wrong to find that comments about an employee’s accent were not harassment under the Equality Act 2010 because they were not motivated by her race. Such comments could nevertheless be “related to” race.
Ms Carozzi, a Brazilian national of Jewish ethnic origin, was employed by the University of Hertfordshire. She resigned before completing her probationary period (which had twice been extended). She brought a number of employment tribunal claims, including for race-related harassment and victimisation. Her harassment claim centred on comments that had been made about her accent. Her victimisation claim alleged that the University’s HR representative, Ms Withers, had refused to share with her the notes of a meeting, because she might then use them against the University in a race discrimination claim.
The tribunal dismissed her claims. It found that the comments about Ms Carozzi’s accent had not been motivated by her race. Rather, they had been about her intelligibility or comprehensibility when communicating.
As for the victimisation claim, the tribunal found that Ms Withers had decided against providing the meeting notes knowing that they might give Ms Carozzi “ammunition” for an employment tribunal claim. However, Ms Withers would have done the same with any other employee who had indicated an intention to make an employment tribunal claim, such as constructive dismissal, that was not based on the EqA 2010. In any event, it did not consider that the treatment could be detrimental, based on Khan and Derbyshire. Ms Carozzi appealed to the EAT.
The EAT allowed the appeal and remitted the harassment and victimisation claims to a fresh tribunal. The EAT observed that there are a number of components in a complaint of harassment, one of which is that the harassment must be “related to” a protected characteristic such as race. In its view, the tribunal had erred in its approach to that component.
The tribunal had stated that a mental element is required in a claim of harassment as much as in a claim of direct discrimination. However, the EAT held that this was wrong. The tribunal had placed considerable emphasis on the Court of Appeal’s decision in Nailard. The issue in that case had been whether the employer’s failure to investigate a grievance alleging sex discrimination was itself related to sex, and therefore an act of harassment. Nailard had not been about harassment in the more typical circumstances in which a complaint is made about words spoken to, or behaviour towards, an individual, and whether that conduct is related to a protected characteristic.
The EAT held that there is no requirement in a harassment claim for a “mental element” equivalent to that in a claim of direct discrimination. Treatment may be “related to” a protected characteristic where it is “because of” the protected characteristic, but that is not the only way conduct can be related to a protected characteristic. There may be circumstances in which harassment occurs where the protected characteristic did not motivate the harasser. The EAT gave the further example of a person who unknowingly uses a word that is offensive to people who have a relevant protected characteristic because it is historically linked to oppression of people with that characteristic. The fact that the person using the word did not know that it had such a connotation would not prevent the word being related to the protected characteristic. The use of the word could therefore potentially amount to harassment, applying the factors in section 26(4) of the EqA 2010, notably the perception of the complainant and whether it is reasonable for the conduct to have the effect of violating their dignity.
The EAT went on to observe that an accent may be an important part of a person’s national or ethnic identity. Comments about a person’s accent could be related to the protected characteristic of race. Criticism of such an accent could violate dignity. Obviously, that did not mean that any mention of a person’s accent will amount to harassment. The tribunal would have to consider whether the comment about an accent in a particular case was unwanted and related to race, as well as considering the other elements of section 26.
The EAT held that the tribunal had asked itself the wrong question to establish the reason for the refusal to supply the meeting notes. It should not have asked whether a person who might have brought a different type of claim (that did not amount to a protected act under the EqA 2010) would have been treated differently. The correct question for the employment tribunal was whether the decision not to provide the meeting notes was to a material degree influenced by the fact that Ms Carozzi had made or might make a complaint of unlawful discrimination.
It noted that the EqA 2010 definition of victimisation no longer requires a comparison to be made with the treatment of others. Regarding detriment, the House of Lords in Khan had held that an employer may take reasonable steps to protect its position in discrimination proceedings without this being considered unlawful victimisation. This had led the tribunal in the instant case to conclude that there had been no detriment. However, the tribunal in this case had not considered whether the parties thought that there were likely to be employment tribunal proceedings. Specifically, it had not considered whether an employee who brings a grievance, that might resolve the issue without the need for tribunal proceedings, might reasonably consider themselves disadvantaged by not being provided with the notes of a meeting. Accordingly, the EAT allowed the appeal on this point.
This case confirms that the “related to” test in the definition of harassment is wider than the “because of” test (sometimes referred to in case law as the “reason why” test) that applies to direct discrimination. Conduct can be related to a protected characteristic either where it is motivated by the protected characteristic, or where, regardless of the conscious or unconscious motivations of the alleged harasser, there is objectively some relationship between the conduct or language used and a protected characteristic. Sexist jokes and racial epithets are obvious examples, but the unwitting use of, for example, homophobic, transphobic or ableist language may also, depending on the circumstances (particularly the reasonableness test), be capable of meeting the definition of harassment.
Sexual Discrimination: Tribunal’s assessment of injury to feelings in pregnancy discrimination case was “totally flawed”
In Shakil v Samsons Limited [2024] EAT 192, the Claimant had only been working for the Respondent for about six months when she called in sick with ‘morning sickness’. In response and without notice, the Respondent reduced the Claimant’s hours of work criticising her capability and conduct. It then placed her at risk of redundancy, ultimately dismissing her, one month before she was due to start maternity leave.
Unsurprisingly, the Claimant took a claim of pregnancy discrimination to the tribunal who agreed with her. It was clear to the tribunal that the Respondent’s actions were due to the Claimant’s pregnancy-related illness and that the redundancy had been invented to deal with the Claimant’s pregnancy. In making the award, however, the tribunal simply made an injury to feelings award of £5,000 without any reference to ‘Vento bands ’ or where the Claimant’s injury fell within those bands. The Claimant appealed the award.
The EAT found this assessment to be “totally flawed” and allowed the appeal on the basis that the tribunal had failed to apply the Vento guidelines at all. In particular, the tribunal did not:
identify the detailed evidence given by the Claimant in her witness statement about the injury to feeling she suffered as a result of the discrimination;
make any findings of fact about the injury to feelings suffered;
refer to Vento at all;
refer to any statutory provision or authority relevant to assessing injury to feeling;
identify the relevant bands for this claim in Presidential Guidance;
state which band the injury to feelings fell within;
explain why the award was set as it was within the band.
The EAT remitted the matter of remedy to a fresh tribunal rather than impose an alternative injury to feelings award itself.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
This month sees an emphasis on Equality through a landmark equal pay...
News & Views
Employment Law General Update – December 2024
Employment,
17th December 2024
Employment Law
This month sees an emphasis on Equality through a landmark equal pay agreement, a follow up to the Sexism in the City inquiry and a further inquiry into how paternity and shared parental leave in the workplace can actually work. Meanwhile, the CIPD has carried out research which finds our systems are currently failing to help young people prepare for working life. And lastly, a warning change to compensation levels where the statutory Code of Practice on Dismissal and Re-engagement should be involved and some changes to the tribunal procedures.
Equality: Equal pay deal reached for thousands of women in Birmingham
Equality: HM Treasury, PRA and FCA respond to Treasury Committee questions about Sexism in the City inquiry recommendations
Parental Leave: Women and Equalities Committee launches inquiry into paternity and shared parental leave
Workforce: CIPD research finds half of employers believe young people are not ‘job ready’
Tribunals: Failure to follow code of practice on dismissal and re-engagement has compensation consequences effective from 20 January 2025
Tribunal Procedure: Changes to Employment Tribunal Procedure Rules from 6 January 2025
Equality: Equal pay deal reached for thousands of women in Birmingham
The BBC reported on 10 December that Birmingham City Council has reached a settlement with 6,000 staff members, mostly women, to end a long-standing dispute over pay inequality, with settlement payouts to be made after years of negotiations.
Birmingham City Council has reached a settlement with thousands of women in relation to their long-standing equal pay claims. The agreement, reached with the Unison and GMB unions, will see 6,000 staff members receive settlement payouts, bringing an end to the litigation that has run for many years. The issue of equal pay has been a major challenge for the council, with a bill of £760 million initially estimated to settle the claims. However, after several years of negotiations, a confidential agreement has been reached, which will be formally approved by the council’s cabinet on 17 December 2024.
The dispute centred around claims that staff in female-dominated roles, such as teaching assistants, have historically been underpaid compared to those in male-dominated positions. The GMB union has said that the settlement is a “significant step towards pay justice”. The settlement will also be a significant step forward for the council, which is reported to have paid out almost £1.1 billion in equal pay claims since 2012.
Equality: HM Treasury, PRA and FCA respond to Treasury Committee questions about Sexism in the City inquiry recommendations
The House of Commons Treasury Committee has published letters containing responses from HM Treasury, the PRA (Prudential Regulation Authority) and the FCA (Financial Conduct Authority) relating to progress made against the recommendations set out in its report following its “Sexism in the City” inquiry.
On 10 December 2024, the House of Commons Treasury Committee published the following letters relating to its “Sexism in the City” inquiry, which provide information on progress made against its recommendations:
FCA (dated 29 November 2024). The FCA has prioritised work on the link between non-financial misconduct (NFM) and its rulebook and intends to publish a final policy statement on NFM in early 2025. The FCA is working through the large volume of feedback that it received on proposals relating to data collection and target setting and intends to set out next steps jointly with the PRA in Q2 2025. It is exploring ways in which diversity and inclusion (D&I) reporting might be simplified and more joined up. In 2025, the FCA plans to strengthen its messaging to whistleblowers and better promote whistleblowing reporting channels. This will include providing clearer guidance for whistleblowers who are impacted by a non-disclosure agreement, but who wish to report to the FCA. The FCA also comments on how it uses whistleblowing data and the introduction of a new approach to final feedback to whistleblowers.
PRA (dated 2 December 2024). The PRA acknowledges that developments in government policy (such as proposals for gender equality action plans and the plan for broadened pay gap reporting) may have an impact on its reporting and target setting proposals. It also comments on the removal of the bonus cap, reiterating the PRA and FCA expectation that firms should take care to avoid adverse impacts on pay gaps. The PRA states it will seek to review the impact of the bonus cap policy and whether it has affected gender pay gaps when sufficient evidence is available.
HM Treasury (dated 9 December 2024). HM Treasury’s letter focuses on priorities for supporting the development of women in the financial services sector. It refers to the Women in Finance Charter, which will retain its focus on senior management.
The letters respond to requests for information sent by Dame Meg Hillier MP, Chair of the Treasury Committee.
Parental Leave: Women and Equalities Committee launches inquiry into paternity and shared parental leave
The House of Commons Women and Equalities Committee launched an inquiry to examine options for reform of paternity and shared parental leave, and is conducting a call for evidence which lasts until 31 January 2025.
The Women and Equalities Committee (WEC), a Commons Select Committee, launched the inquiry into paternity rights and shared parental leave (SPL) on 6 December. The WEC believes that unequal division of childcaring responsibilities is a key driver of wider gender inequality and the gender pay gap. It wishes to examine options for reform of SPL and paternity leave with the aim of identifying the most effective ways of incentivising more equal sharing of childcare and wider domestic responsibilities between mothers and their partners.
The UK Parliament reports that: “MPs on the cross-party committee, chaired by Labour MP Sarah Owen, are seeking views on the schemes, via WEC’s inquiry page and through a survey, to help inform their work ahead of the Government’s proposed review of the parental leave system. The call for evidence forms part of WEC’s umbrella inquiry into Equality at work.
The Government has set out measures in the Employment Rights Bill to enhance family-friendly rights at work but has stopped short of fundamental changes to maternity, paternity, and shared parental leave and pay.
Instead, it has acknowledged that ‘the current parental leave system does not support working parents’ and has committed to conduct a ‘full review’ as the first stage of longer-term reform. Unequal division of childcaring responsibilities is a key driver of wider gender inequality and the gender pay gap.”
The WEC is conducting a call for evidence which lasts until 31 January 2025. Submissions are specifically requested on any of the following matters:
The extent to which SPL has given parents choice and flexibility in how they share parenting responsibilities.
The longer-term equality impacts and labour market impacts of SPL, particularly for women.
Reasons for low take-up of SPL and possible solutions.
Addressing inequalities in SPL take-up (including inequalities related to ethnicity, income, education and occupational status).
Alternatives to the current “maternal transfer” model of SPL.
Lessons from other countries.
A government evaluation of SPL in 2023 revealed very low uptake. A more recent analysis by campaign group The Dad Shift has highlighted that SPL uptake is heavily skewed against lower earning families.
Workforce:CIPD research finds half of employers believe young people are not ‘job ready’
Reported by People Management on 4 December 2024, apparently half (52 per cent) of UK employers say young people entering the workforce are generally not ‘job ready’, citing significant gaps in workplace skills and social adaptability, according to a new study from the CIPD. The Changing face of the youth labour market report also revealed that just over a quarter of employers (28 per cent) that hired a young person aged 16-24 in the past year felt they were well prepared for the demands of the workplace. Among the most significant challenges identified by employers were behavioural issues, with 71 per cent stating young people often did not know how to behave in professional settings. Similarly, 64 per cent of employers said young workers “lack important social skills”, while a third (34 per cent) identified communication difficulties as a key barrier to success.
Employers also noted differences in managing young workers compared to previous generations, with more than half (56 per cent) saying young workers were harder to manage. This generational shift has heightened the need for policies and initiatives to better prepare young people for the realities of working life.
The report highlighted a dramatic decline in opportunities for young people to combine earning and learning, which has significantly impacted their readiness for work. Despite government efforts to promote apprenticeships, just 6 per cent of 16 to 24 year olds are currently participating in one – a figure that has not changed in 20 years. In 2024, only 20 per cent of 16 to 17 year olds were combining earning and learning, down from 42 per cent in 1997, while, for 18 to 24 year olds, the figure dropped to 34 per cent from 40 per cent over the same period. Furthermore, the number of 16 to 24 year olds who had never held a job, excluding seasonal or holiday work, has risen by nearly a third over the past two decades.
To address these issues, the CIPD is calling on the government to introduce an apprenticeship guarantee for all 16 to 24 year olds. This initiative, which is supported by nearly 90 per cent of employers according to previous CIPD research, aims to create more vocational routes into employment while helping young people build crucial workplace skills such as communication, teamwork and problem solving.
Tribunals: Failure to follow code of practice on dismissal and re-engagement has compensation consequences effective from 20 January 2025
The Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment of Schedule A2) Order 2024 (SI 1272/2024) has been made and is due to come into force on 20 January 2025. Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992) gives an employment tribunal power to increase or reduce any award it makes by up to 25% for any unreasonable failure to comply with the provisions of a relevant statutory code of practice in respect of any of the heads of claims listed in Schedule A2 to TULRCA 1992. The Order, which was published in draft in October 2024, amends Schedule A2 to add section 189 of TULRCA 1992 to take account of the statutory Code of Practice on Dismissal and Re-engagement (Code).
The effect of the order is that, if a successful claim is brought under section 189 of TULRCA 1992 for a protective award, an employment tribunal can increase or reduce any award by up to 25% if a party has unreasonably failed to comply with the Code or another applicable code of practice.
Tribunal Procedure: Changes to Employment Tribunal Procedure Rules from 6 January 2025
On 6 December 2024, the Employment Tribunal Procedure Rules 2024 (SI 2024/1155) (‘ETPR’) and the Employment Tribunals (Procedure Rules) (Consequential Amendments) Regulations 2024 (SI 2024/1156) (‘Amendment Regulations’) were laid before Parliament. The Amendment Regulations will remove the current ET Rules from Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237) (‘ET Regulations’) and bring the ETPR into force in their place on 6 January 2025.
The ETPR introduce two new rules to give the tribunal greater flexibility to delegate functions of a judicial nature to legal officers (rule 7), and expressly give the Presidents of the tribunals the power to prescribe claim and response forms by Practice Directions, instead of the Secretary of State (rule 9). Amendments have also been made to the following rules:
Rule 42 (replacing current rule 42): clarifying when the tribunal will consider written representations.
Rule 49 (replacing current rule 50): confirming that the tribunal may order the redaction of personal details, including addresses, from the claim and response forms and other documents.
Rule 58 (replacing current rule 60): clarifying that decisions made by legal officers without a hearing should identify the legal officer who made the decision.
Rules 59 and 60 (replacing current rules 61 and 62): replacing the requirement for the written records and written reasons of tribunal decisions to be signed by an employment judge with a requirement that they be approved by the presiding member.
Rule 98 (replacing current rule 99): allowing the Vice President, in addition to the President, in Scotland to be able to consent to the transfer of a case to Scotland.
The rules relating to fees in the current ET Rules have not been replicated in the ETPR. The national security rules of procedure and the equal value rules of procedure, currently contained within schedules 2 and 3 of the ET Regulations, are replicated as schedule 1 and 2 to the ETPR respectively.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
In our last update of the year we bring you technical tribunal processes...
News & Views
Employment Law Case Update – November 2024
Employment,
27th November 2024
Employment Law
This month’s newsletter highlights some critical aspects of employment law underscoring the evolving interpretations of workers’ rights, employer obligations and procedural safeguards. The EAT has clarified worker status, once again, providing guidance on how a black cab driver supplementing his income using a ride-hailing app was not a “worker” but operated independently, contrasting with the Uber precedent emphasizing factors like business autonomy and flexibility in accepting or rejecting fares. Another case showed the EAT upholding the inadmissibility of pre-termination settlement negotiations in unfair dismissal claims unless improper behaviour is evident, reaffirming the protective scope of “without prejudice” conversations. And lastly, an employer has been found liable for unfair dismissal and discrimination after firing an employee upon learning she was pregnant during her return from maternity leave, with the tribunal spotting inconsistencies in the employer’s rationale.
Worker Status: Driver using a black cab app was not a worker
Unfair Dismissal: Evidence of pre-termination negotiations inadmissable
Unfair Dismissal: Pregnant employee sacked when pregnant on return from maternity leave
Worker Status:Driver using a black cab app was not a worker
In Johnson v GT Gettaxi (UK) Ltd [2024] EAT 162, the EAT held that the Claimant was not a worker of the Respondent company. The Respondent operated a customer application which allowed members of the public to order black cabs, rather than hailing a black cab on the street. Licensed black cab drivers could sign up to the driver app, are free to ply for hire while signed up to the app and can register with other similar taxi apps at the same time as using the driver app.
The Claimant was a licensed black cab driver from April 2014. He signed up and used the Respondent’s app between April 2015 and 2017 and made 171 journeys, making up approximately 5% of his earnings. In 2020, when he re-applied to use the app, his application was refused. He believed that this was because he had made protected disclosures. This gave rise to a preliminary issue as to whether or not the Claimant was a worker under s.230 of the Employment Rights Act 1996.
The case had obvious echoes of Uber BV & Ors v Aslam & Ors [2018] EWCA Civ 2748, where the Supreme Court held that Uber drivers were workers. However, both the employment tribunal and the EAT found that the Claimant was not a worker of the Respondent and that the Respondent’s drivers, more generally, were not workers. They were in business on their own account as black taxi drivers. The use of the Respondent’s app was just a way to increase their business. The following points were relevant to this conclusion:
No penalties were imposed by the Respondent for rejections of rides offered. This indicated that the Claimant was in business on his own account.
The Claimant was free to follow the routes he considered best and there was no penalty for not following the GPS route (unlike in Uber v Aslam).
The Claimant was given limited details about passengers on accepting fares. There was nothing stopping the Claimant from making arrangements direct with passengers for other trips.
Drivers were able to increase their earnings by plying for hire in the traditional way as a black cab driver or by signing up to other apps. This was different to Uber, as Uber drivers could not ply for hire in the same way as a black taxi can.
Unfair Dismissal: Evidence of pre-termination negotiations inadmissable
In Gallagher v McKinnon Auto and Tyres Ltd [2024] EAT 174, the Employment Appeal Tribunal upheld the tribunal’s decision that pre-termination negotiations between the Claimant and the Respondent were inadmissible in his unfair dismissal claim.
Under s.111A of the Employment Rights Act 1996, pre-termination discussions, known as ‘protected conversations’, are inadmissible in ordinary unfair dismissal claims if conducted without ‘improper behaviour’, allowing confidential conversations about mutually agreed employment termination terms, even without a prior dispute. The provision is supported by an ACAS Code.
The Claimant had worked as a branch manager for the Respondent and due to illness had been absent. When he returned to work, the Respondent decided his position was no longer needed and proposed a redundancy process. At a meeting stated to be ‘off-the-record’, the Claimant was offered a settlement agreement and given 48 hours to respond, with the indication that redundancy would follow if he declined. The Claimant refused and was subsequently dismissed for redundancy. He claimed unfair dismissal and attempted to use the settlement discussions in evidence. The tribunal ruled these discussions were protected pre-termination negotiations, and since there was no improper behaviour, they were inadmissible.
The Claimant appealed to the EAT, arguing that the tribunal’s decision in this regard was perverse. He argued there was improper behaviour as:
He was told the meeting was a ‘return to work’ meeting and was taken by surprise when it was used to propose severance terms – it was therefore set up under false pretences;
He was only given 48 hours to consider a redundancy offer of £10,000, contrary to ACAS guidance suggesting a minimum of 10 calendar days; and
He was told his role was redundant, therefore exerting undue pressure on him implying his dismissal was inevitable if the offer was not accepted.
The EAT upheld the decision of the ET. In dismissing the appeal, it held that 1 and 2 did not represent improper behaviour in the circumstances: the discussions were calm, and the Claimant was given an opportunity to consult with family and seek advice. While the meeting’s purpose was not transparent, this did not amount to impropriety sufficient to override the statutory inadmissibility of the negotiations. The EAT agreed that the 48-hour deadline for considering the verbal offer was not unreasonable under the circumstances. The Claimant could have accepted, countered, or rejected the offer. The Respondent’s statement that the role was redundant was found to relate to initiating a redundancy process rather than a definitive dismissal threat.
In respect of 3, the EAT held that it was important to distinguish redundancy situations from disciplinary situations. The ACAS Code does state that a form of undue pressure can be telling an employee that, if they do not accept the offer, they will be dismissed. However, this guidance specifically refers to a disciplinary situation. In this case, a redundancy situation had arisen. It was accepted that the Respondent had told the Claimant that his role was redundant. However, this did not mean that dismissal was inevitable as there were still the possibility of alternative employment.
The Claimant attended a meeting with the managing director, Jeremy Morgan, in February 2023 that began “positively”, with him “saying the business was doing well” and explaining they recently managed to secure a contract with the NHS. Mr Morgan went on to say he was looking forward to her coming back to work and they agreed what hours she would be working. However, towards the end of the meeting, the Claimant admitted she was pregnant again. When her maternity leave ended at the end of March, no one contacted her about her return to work and they failed to respond to an enquiry about her holiday allowance for later in the year. A little while later, following other contact between the two in April, Mr Morgan called to say that following financial difficulties, late payments and a new software system being installed, she was being made redundant.
The judge found there was significant inconsistency in Mr Morgan’s reasoning for making the Claimant redundant. During their February meeting, he had claimed the business was doing well and made no mention of financial difficulties. He also hadn’t made any mention of the new software that supposedly made the Claimant’s role obsolete, even during their April phone call. No evidence of either had been produced during the tribunal case and at no stage did he send the Claimant a written statement setting out the reasons for the dismissal. He therefore ruled that the Claimant was dismissed because she was pregnant.
The judge found that her dismissal was “unfair, discriminatory, and caused significant emotional distress.” He emphasised that being fired while pregnant and losing financial stability had a profound impact on her, particularly given her family responsibilities.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
In our last update of the year we bring you technical tribunal processes...
News & Views
Employment Law General Update – November 2024
Employment,
27th November 2024
Employment Law
This month’s updates emphasise transparency and fairness in employment practices. The ICO issued guidance for AI recruitment tools, while the Home Office piloted its new ‘Sponsor UK’ system. A House of Lords report urged stronger action on modern slavery, and new Employment Rights Bill factsheets from the DBT clarified worker protections. Government consultations are underway on agency worker rights, fire and rehire, industrial relations, and statutory sick pay, with upcoming deadlines in December 2024.
Data Protection: Making AI recruitment tools better at protecting jobseekers’ information rights
Immigration: ‘Sponsor UK’ system rollout commences with GAE private beta pilot, and other guidance updates
Modern Slavery: UK’s approach to modern slavery falls behind other nations’ progress
New legislation: The Department for Business and Trade publishes Employment Rights Bill factsheets
Government Consultations: New consultations launched on the application of zero-hours contract measures for agency workers, on collective redundancy and fire and rehire, on creating a modern framework for industrial relations and on how to strengthen statutory sick pay
Data Protection: Making AI recruitment tools better at protecting jobseekers’ information rights
The ICO has issued a set of recommendations to AI developers and providers of recruitment tools to ensure that jobseekers are not being unfairly excluded from roles or having their privacy compromised.
The ICO audited several providers and developers of AI tools for recruitment and made almost 300 recommendations. These included processing personal information fairly and keeping candidates informed about how the tool would use their information. Ian Hulme, Director of Assurance, said: “Our report signals our expectations for the use of AI in recruitment, and we’re calling on other developers and providers to also action our recommendations as a priority. That’s so they can innovate responsibly while building trust in their tools from both recruiters and jobseekers.” They have published their recommendations in a new audit report available on the ICO website.
Immigration: ‘Sponsor UK’ system rollout commences with GAE private beta pilot, and other guidance updates
Updates to various Worker and Temporary Worker sponsor guidance documents on 24 October 2024 confirm that the Home Office has commenced the roll-out of its new ‘Sponsor UK’ IT system, which will apply initially to invited participating sponsors on a private beta pilot in the Temporary Worker Government Authorised Exchange (GAE) route. Such sponsors are able to use the new system from 24 October 2024, and a new Annex GA1 to the ‘Sponsor a Government Authorised Exchange Worker’ guidance sets out in detail how the new system will work in its private beta form. Related amendments have been made to the general sponsor guidance documents to exclude these sponsors from various aspects (the rest of the general guidance will continue to apply to them), and to add certain additional duties. Details of the private beta pilot, and other guidance updates are set out below.
Modern Slavery: UK’s approach to modern slavery falls behind other nations’ progress
The ‘House of Lords’ Modern Slavery Act 2015 Committee has published a report ‘The Modern Slavery Act 2015: becoming world-leading again‘. This finds that recent changes to UK immigration laws have weakened victim support, while fragmented labour market regulations hinder effective responses to evolving modern slavery issues, particularly in the care sector. Additionally, while the Modern Slavery Act 2015 aimed to enhance supply chain transparency, global best practices now require companies to conduct due diligence and actively eliminate modern slavery in their operations. The report makes the following recommendations regarding these issues:
Migrants who have been trafficked as victims of modern slavery should lie at the heart of government policy and of any future legislation about illegal migration;
The Government should establish an arms-length Single Enforcement Body to ensure stronger compliance with relevant labour rights and standards;
As a minimum, the Single Enforcement Body should act as a single point of contact for labour exploitation across all sectors;
The Government should introduce legislation requiring companies meeting the threshold to undertake modern slavery due diligence in their supply chains and to take reasonable steps to address problems; and
It is recommended that the Government consult businesses on potential changes, looking closely at the issues raised in the Report and giving due consideration to small and medium sized companies’ ability to meet any new requirements.
New legislation: The Department for Business and Trade publishes Employment Rights Bill factsheets
The Department for Business and Trade has published factsheets which set out what each policy or framework within the Employment Rights Bill aims to do and explains how it will work. For more details, see the factsheets here.
Government Consultations: New consultations launched on the application of zero-hours contract measures for agency workers, on collective redundancy and fire and rehire, on creating a modern framework for industrial relations and on how to strengthen statutory sick pay
The government has launched a consultation to seek views on the application of measures to address the one-sided flexibility in zero hours contracts. The government is considering to introduce a right to guaranteed hours based on the hours worked regularly and a right to reasonable notice for shifts, along with payment for shifts cancelled or shortened on short notice. The consultation seeks feedback specifically on the application of these measures to agency workers. The government will be consulting at a later date on the implementation of these two measures more generally.
More details can be read here. The consultation closes at 11:59pm on 2 December 2024.
Government launches consultation on collective redundancy and fire and rehire
The government has launched an open consultation seeking feedback on measures to enhance the collective redundancy framework and protect employees from fire and rehire practices. For the collective redundancy framework, the government wants input on a proposal to extend the maximum period of the protective award that a tribunal can award. The government is considering to either increase the protective award that a tribunal can award from 90 to 180 days or to remove the cap on the protective award entirely. The government is also seeking views on whether interim relief should be provided to employees who bring claims for the protective award. For fire and rehire practises, the government is seeking feedback on whether interim relief should be available to employees filing an unfair dismissal claim under the new right which will be introduced by the Employment Rights Bill.
The consultation details can be read here and it closes at 11:59pm on 2 December 2024.
The government begins consultation on creating a modern framework for industrial relations
The government has launched a consultation to modernise the laws governing trade unions and invites feedback on various specific measures. The consultation can be read in more detail here and will close at 11:59pm on 2 December 2024.
The government opens consultation to strengthen statutory sick pay
The consultation asks respondents what the percentage replacement rate should be for those earning below the current rate of statutory sick pay and will close at 11:59pm on 4 December 2024. The consultation was promised in the government’s ‘Next Steps to Make Work Pay’ document which was published alongside the Employment Rights Bill.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
In our last update of the year we bring you technical tribunal processes...
News & Views
Employment Law Case Update – October 2024
Anne-Marie Pavitt,
30th October 2024
Employment Law
This month our case digest is dominated by unfair dismissal and victimisation claims. The usual advice follows: if you’re going to dismiss someone, make sure you follow procedure and do it properly, a protected disclosure only gains its protection from being in the public interest (not that of the individual), even unions can get it wrong, and if you’re going to submit a large remedy claim have substantial medical evidence to back it up.
Unfair Dismissal: Tribunal fails to consider fairness of final warning
Unfair Dismissal: Claimant can’t rely on protected disclosures if not made in public interest
Victimisation: Tribunal incorrectly applied burden of proof provisions and rejected protected act
Victimisation: Substantial lack of medical evidence and self-diagnosis not enough for high value remedy claim
Unfair Dismissal: Tribunal fails to consider fairness of final warning
In Thomas v Brandpath UK Ltd[2024] EAT 150, the EAT allowed the claimant’s claim for an unfair dismissal. After an altercation between the claimant and a colleague, the claimant was signed-off sick for a significant period and the respondent conducted a disciplinary hearing in her absence. The claimant was dismissed by the respondent and the Employment Tribunal (ET) concluded that the claimant had acted “inappropriately”. The claimant argued that the ET: (i) did not consider and decide whether the issue of the final warning was manifestly unfair; (ii) there was a failure to apply the relevant guidelines; (iii) the decision was perverse; and (iv) that there was unfairness in proceeding with the disciplinary hearing, in the absence of the claimant, rather than delaying to allow for a possible improvement in her medical condition.
The EAT held that the ET erred in law is its assessment of the reason for dismissal, in failing to determine the question of whether the final warning was manifestly unfair, having identified that as one of the issues for determination. It failed to properly consider the question of whether the respondent had investigated that fell within the band of reasonable responses. There was no clear finding of what the claimant had done or said that was “inappropriate”. They upheld grounds (i) and (ii) of the appeal. It was therefore not necessary to go on to consider grounds (iii) and (iv).
Unfair Dismissal: Claimant can’t rely on protected disclosures if not made in public interest
In Dowding v The Character Group Plc[2024] EAT 153, the claimant in the employment tribunal was the finance director of the respondent, a company listed on the Alternative Investment Market. Following his dismissal he complained of unfair dismissal for the reason or principal reason that he had made protected disclosures, alternatively ordinary unfair dismissal. The tribunal concluded that the claimant had not, in law, made protected disclosures, because the disclosures relied upon were not believed by him to have been made in the public interest (alternatively, if they were, his belief was not reasonable). Nor in any event was the claimant dismissed by reason of those disclosures.
The tribunal found that this was a fair dismissal by reason of a breakdown in trust and confidence that had been caused by the claimant’s conduct. At a further costs hearing the tribunal awarded the respondent costs, in a capped amount, subject to detailed assessment on the indemnity basis. It rejected a costs application by the claimant himself. The respondent also successfully sought its costs in respect of the costs hearing, which it had limited to the maximum that could be summarily awarded, of £20,000.
The claimant’s appeal against the decision dismissing the ordinary unfair dismissal complaint was unsuccessful. An appeal against the costs decision succeeded in two respects. The EAT concluded that, under the Employment Tribunal Rules of Procedure 2013, the tribunal does have the power to direct that a detailed costs assessment be on the indemnity basis; but the tribunal had not shown whether, or if so, why, it had decided that such a direction was warranted in this case, applying the guidelines in Howman v Queen Elizabeth Hospital, UKEAT/0509/12/JOJ. In respect of the “costs of costs” award, the tribunal had not considered whether the sum of £20,000 was warranted having regard to the nature, gravity and effect of the conduct which gave rise to the award; or if it had considered that, it had not sufficiently explained its decision in that respect.
Victimisation: Tribunal incorrectly applied burden of proof provisions and rejected protected act
In Edwards v Unite the Union and Others[2024] EAT 151, the Employment Tribunal was found by the EAT to have erred in its approach to the burden of proof. The Claimant had been employed as an employment law solicitor for the RMT. He wished to pursue proceedings against the RMT. He was a member of the Unite the Union (“the Union”) and sought to obtain “industrial and legal representation” from the Union against the RMT in respect of employment and personal injury claims. The Union took advice in respect of his claims and represented him in some of them. The Claimant was dissatisfied with aspects of the decision making and service/representation provided to him by the Union. He asserted that the Union and some of its officers had discriminated against him and subjected him to victimisation. He brought a number of claims before an Employment Tribunal. The Tribunal rejected his claims and concluded that the burden of proof had not shifted to the Union in respect of the victimisation allegation, and determined that one email the Claimant sent was not a protected act for the purposes of the claims of victimisation. The Claimant appealed.
The appeal was allowed, concluding that the Tribunal had erred in its application of the burden of proof provisions in consideration of relevant authorities and using guidance on the approach to the burden of proof provisions. As to the second ground of appeal, in context and applying the correct legal principles, and on a fair reading of the relevant email, the Claimant had made an allegation of disability discrimination. The allegation was that the First Respondent had failed to adjust its processes and that as a result, the Claimant, a disabled person, suffered harm. This could be understood to be an allegation of disability discrimination.
Victimisation: Substantial lack of medical evidence and self-diagnosis not enough for high value remedy claim
In McInerney v Nottinghamshire Healthcare NHS Foundation Trust[2024] EAT 158, having been awarded compensation in respect of remedy for a successful claim of unfair constructive dismissal, the Employment Tribunal (ET) made a further reserved judgment in respect of the remedy for victimisation claim which amounted to £20,000 for injury to feelings, £10,000 for aggravated damages (which were not challenged) and £23,344.30 for loss of earnings, against which Dr McInerney appealed. The final schedule of loss submitted by the appellant put her losses at £2,114,140.90 gross. The EAT dismissed her appeal against the findings made in this further reserved judgment by the ET.
The appellant had been employed by the respondent NHS Trust as a Consultant Forensic Psychiatrist at a hospital until her retirement. The appellant brought two claims in the ET, alleging acts of victimisation that led to her resignation. Her victimisation claim was based on the respondent’s refusal to consider her application to work on a part-time basis as Forensic Psychiatrist in the respondent’s Forensic Gender Clinic and, specifically, refusing to allow her to apply for the role, not acknowledging or considering her subsequent application and not offering her the role. She contended that her mental health issues, allegedly caused by the victimisation, prevented her from working until the age of 75, as she had intended. The appellant succeeded in both complaints. The ET was highly critical of the actions of the respondent that resulted in the appellant’s resignation, concluding that the respondent had fundamentally breached the claimant’s contract of employment.
The ET found as fact that the appellant had not suffered a loss of confidence because of being victimised that prevented her from undertaking medico-legal work. Among other things, the appellant submitted that the ET failed to apply a percentage chance approach to the medico-legal loss or had otherwise failed to give adequate reasons as to its decision on that point. The EAT held that the ET did not err in law in failing to apply a percentage chance approach to the medico-legal loss. On a proper reading of the judgment, the ET found as a fact that the appellant had not suffered a fundamental loss of confidence that prevented her from carrying out medico-legal work. The ET had been entitled to consider the lack of significant supporting medical evidence to support the very substantial asserted losses (a single letter from a doctor – Consultant Psychiatrist in Psychotherapy, no longer practising) and that it was a significant omission. This is a very high value claim which primarily rests with the appellant’s financial losses she says arise as a result of her mental health issues cause by the victimisation by the respondent, and as a consequence, the ET consider medical evidence to be essential to enable proper consideration of the effect of the victimisation on the appellant’s mental health. She had also relied on her own evidence, as a Consultant Psychiatrist, but relying on self-diagnosis in such a high claim would in itself raise potential issues, not least being the cynical view that she would know what to say to support her own claim. Further, the reasons of the ET had been more than sufficient for the appellant to understand why she failed in that element of the claim for loss of earnings.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
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News & Views
Employment Law General Update – October 2024
Anne-Marie Pavitt,
30th October 2024
Employment Law
Big changes are afoot this month with the introduction of the new Labour government’s Employment Rights Bill, aiming to fix problems perceived by the Labour party during their long stint in opposition, such as addressing one-sided flexibility, supporting more family friendly rights and prioritising fairness, equality and wellbeing of workers, ensuring fair pay, modernising trade union legislation and improving enforcement of employment rights. Consultation over the Bill will start now and continue in 2025, with the aim to implement the changes in 2026. We also bring you updates on sexual harassment, proposed employment rights for parents of still-born children and those born prematurely, guidance on the new Tipping Act, and a change in equality office.
Legislation: Government publishes Employment Rights Bill
Protection at Work: The Worker Protection (Amendment of Equality Act 2010) Act 2023 to comes into force on 26 October 2024 and EHRC updates its harassment guidance and publishes eight-step guide for employers on preventing sexual harassment at work
Parents: New private members’ bill on Still-Birth and leave for Neo-natal care
Pay: New Tipping Act and supplementary Code of Practice comes into force – guidance available
Equality: Office for Equality and Opportunity replaces the Equality Hub
Legislation: Government publishes Employment Rights Bill
Background: In September 2021, the Labour Party first introduced its plan for working people in its ‘A new deal for working people’, launched at the Labour Party Conference. The document underwent several iterations, with the final version, Labour’s Plan to make work pay: Delivering a new deal for working people (New Deal), published just prior to the release of the manifesto in June 2024. The Labour Manifesto reiterated a number of the promises set out in the New Deal document and stated that the New Deal would be implemented in full within the first 100 days of the Labour government. The King’s Speech on 17 July 2024 confirmed that Labour’s plans would be implemented through the Employment Rights Bill 2024 (Bill) and the Equality (Race and Disability) Bill 2024. The Employment Rights Bill 2024 was published on 10 October 2024.
When will the Bill come into force? Commencement regulations will be required to bring provisions into force, with the exception of provisions on trade unions and industrial action, which will come into force two months from the day on which the Act is passed, and the repeal of the Strikes (Minimum Service Levels) Act 2023 and related provisions, which will come into force on the date the Act is passed.
What does the Bill plan to do? The Bill implements a large number of the reforms promised in the Labour Party’s New Deal document. Alongside the Bill, the government has also published a policy document entitled Next Steps to Make Work Pay (Next Steps) and a set of explanatory notes. The document sets out the government’s plan generally as well as the next steps in implementation for many of the measures.
Laid out below is a summary of the current position, the changes promised prior to the Bill and the expected reforms in relation to the measures set out in the Bill.
Zero hours and ‘low hours’ contracts: Zero-hour contracts are contracts of employment which lack a minimum number of guaranteed working hours and which do not require a minimum commitment from the employee. This means the working hours of an individual are unpredictable and may vary wildly from week to week. Although, individuals on zero-hour contracts do have a number of statutory protections, these are based solely on employment status. At present there is no definition as to what ‘low hours’ means. This will be the subject of consultation.
In order to provide more security for individuals on zero-hour contracts, the Labour Party promised to:
ban ‘exploitative’ zero hours contracts;
ensure a right to a contract reflecting the number of hours regularly worked and is likely to be based on a 12-week reference period;
ensure workers get reasonable notice of any shifts or working time changes, with proportionate compensation for cancelled or shortened shifts;
introduce anti-avoidance measures; and
end ‘one sided’ flexibility by ensuring all jobs provide a baseline level of security and predictability.
The Bill sets out a right to guaranteed hours where a worker regularly works more than those hours. The guaranteed hours are calculated according to a reference period, which is expected to be 12 weeks. Employers will be required to make an offer of guaranteed hours to workers at the start of employment and at the end of each reference period. Workers can also submit claims to the employment tribunal where an employer has failed to comply with their duty to offer guaranteed hours, or where that offer does not comply with the necessary requirements.
The Next Steps document states that the government intends to consult on the details and to ensure the Bill’s provisions on zero hours contracts are effectively and appropriately applied to agency workers.
Fire and re-hire: Currently, employers wishing to introduce changes to the terms and conditions of an employment contract have the option of terminating the contract (with the requisite notice) and offering immediate re-engagement to the affected employee on new terms. While in government, the Conservative party introduced a statutory Code of Practice on dismissal and re-engagement with guidance on engaging in meaningful consultation and exploring alternatives. However, the Labour Party have since committed to ending ‘fire and rehire’ practices entirely in addition to reforming the existing fire and rehire Code and introducing more effective remedies against abuse.
In place of the Code of Practice, clause 22 of the Bill inserts a new section 104I into the Employment Rights Act 1996, which makes a dismissal unfair where the reason for the dismissal is that:
the employer sought to vary an employee’s contract and the employee did not agree, or
the employer sought to employ another person or re-engage the employee under a varied contract to carry out substantially the same duties.
This will not apply where the employer shows that the reason for the variation was to eliminate, prevent or significantly reduce, or significantly mitigate the effect of, any financial difficulties which at the time of the dismissal were affecting, or were likely in the immediate future to affect, the employer’s ability to carry on the business as a going concern or otherwise to carry on the activities constituting the business, and in all the circumstances the employer could not reasonably have avoided the need to make the variation.
Unfair dismissal qualifying period: Under section 108(6) of the Employment Rights Act 1996 the right not to be unfairly dismissed generally only arises where the employee has been continuously employed for a period of at least two years; however the rule is subject to a number of statutory exceptions. The Labour Party has promised to remove the two-year qualifying period for unfair dismissal claims, making it a ‘day one’ right.
The Bill will repeal s.108 of the Employment Rights Act 1996 and remove the two-year qualifying period. However, there will be a new ‘initial period of employment’ (or ‘probationary period’) during which the employer can dismiss an employee for certain reasons, subject to following a specified procedure. The length of the initial period and the details of the procedure will be subject to consultation—see Probationary periods below.
Sick pay (SSP): SSP is currently available to employees who are deemed to have been too ill to undertake any work for a period of at least four consecutive days. Employees must also earn above the lower weekly earnings limit (currently at £123) in order to qualify for SSP. The Labour Manifesto laid out the Party’s commitment to removing the qualifying period for statutory sick pay making it also a ‘day one’ right and removing the lower earnings limit. The Bill reflects both these promises in clauses 8 and 9.
The government will consult on the percentage replacement rate for those earning below the current flat rate of SSP, before bringing it into force as an amendment to the Bill. Furthermore, the Next Steps document states that the new Fair Work Agency will be given responsibility for ensuring SSP enforcement.
Parental leave: Parents of a child (whether born to the parents or adopted) are entitled to take up to 18 weeks of unpaid leave to care for that child at any time before the child’s 18th birthday. Currently parents must have worked continuously for an employer for at least one year to qualify for parental leave. The Bill will make parental leave a ‘day one’ right.
Probationary periods: As noted above, the Bill introduces the concept of an ‘initial period of employment’ (or ‘probationary period’) where dismissals for specified reasons will not be considered unfair. The government has further committed in the Next Steps document to consulting on the length of that initial statutory probation period and to consult on how it interacts with ACAS’s Code of Practice on disciplinary and grievance procedures to ensure that ‘day one’ rights will not be affected by the statutory probation period.
Flexible working: The Employment Rights Act 1996 provides employees with a statutory right to request certain specified changes to their employment contract. However. employees must have had at least 26 weeks’ of continuous service in order to qualify for the right. Earlier legislative changes were made from 6 April 2024, including making the right to request a day one right. However, the grounds upon which an employer can reject a request remain broad.
The Bill introduces a reasonableness requirement into an employer’s decision not to grant flexible working requests, and requirement for the employer to explain to the employee why they consider it reasonable to refuse the request.
Protection for new mothers: Currently, dismissal on the grounds of pregnancy or maternity will be deemed to be an automatically unfair dismissal. This means that an employee dismissed under these circumstances does not require the two years of continuous employment ordinarily needed to bring a claim in the employment tribunal. A woman who takes ordinary maternity leave is also entitled to return to the ‘same job’ at the end of that leave unless that job is no longer available.
The Plan to make work pay also included a promise to strengthen these protections by making it unlawful, except in specified circumstances, to dismiss a woman who has had a baby for six months after she returns to work.
The Bill provides the Secretary of State with the power to make provision for regulations restricting dismissal of an individual during pregnancy or for a period after pregnancy.
Paternity leave: Currently an employee may take paternity leave to support a mother or adopter in taking care of a new child, subject to (among other things) having at least 26 weeks’ qualifying employment. Under the Bill, paternity leave will become a ‘day one’ right.
Bereavement leave: Employees are entitled to Parental bereavement leave (PBL) following the death of a child if they meet the requisite parental relationship conditions and comply with the notice requirements. PBL is a ‘day one’ right; however it is currently only available to employees. The Bill extends the right to take PBL to any ‘bereaved person’. PBL will no longer be limited to circumstances involving the death of a child. A bereaved person will be entitled to take leave for the death of any person as long as they meet the other relevant conditions set out in the regulations.
Equality action plans: Amendments to the Equality Act 2010 made by the Bill will require large employers (with 250 employees or more) to publish equality action plans showing the steps that the employer is taking in relation to their employees with regard to prescribed matters related to gender equality, and to publish prescribed information relating to the plan. These will need to cover addressing the gender pay gap and supporting employees going through the menopause.
Fair Work Agency: The Labour Party has committed to amalgamating the HMRC National Minimum Wage unit, the Employment Agency Standards Inspectorate and the Gangmasters Labour Abuse Authority into a single enforcement body known as the Fair Work Agency. The Bill establishes the Fair Work Agency which will be responsible for:
minimum wage and statutory sick pay enforcement;
the employment tribunal penalty scheme;
labour exploitation and modern slavery; and
enforcement of holiday pay policy (a new responsibility, which was not originally included in the New Deal document).
Fair pay agreements for social care workers: The Labour Party promised to consult on a new Fair Pay Agreement to create a New Deal for Social Care Workers. The Bill provides for the creation of an Adult Social Care Negotiating Body with a remit over remuneration, terms and conditions of employment and any matters specified by the Secretary of State, for social care workers. Agreements over remuneration which have been ratified by the Secretary of State must be paid in accordance with the agreement and any other term will have effect as a term of a worker’s contract. A consultation on how the Fair Pay Agreement should work is promised ‘soon’.
School support staff: The School Support Staff Negotiating Body, the pay body for school support staff, was abolished some time ago. The Labour Party stated that it would reinstate the Body, and task it with establishing a national terms and conditions handbook, training, career progression routes and fair pay rates for support staff to help to address the recruitment and retention crisis. The Bill re-establishes the School Support Staff Negotiating Body.
Trade unions: The Employment Rights Bill makes provision for changes to trade union law relating to:
a worker’s right to a statement of trade union rights;
a trade union’s right of access to a workplace;
trade union recognition;
members’ contributions to political funds, and public sector check-off arrangements;
time off rights for trade union officials, learning representatives and union equality representatives; and
blacklisting.
An employer will be required to give a worker a written statement that the worker has a right to join a trade union at the same time as the employer gives the worker a written statement of employment particulars. Secondary legislation will stipulate what information must be included in the statement, the form the statement must take and the manner in which the statement must be given.
The Employment Bill introduces a new framework for trade unions to request physical access to an employer’s workplace for the purposes of meeting, representing, recruiting or organising workers, and/or facilitating collecting bargaining. Access agreements are to be negotiated in the first instance between the employer and the trade union, with a referral to the Central Arbitration Committee provided for if agreement cannot be reached.
Thresholds required for a trade union to qualify for, and achieve, statutory recognition will be amended, with double thresholds removed where relevant and replaced by a simplified requirement for unions to demonstrate appropriate levels of support. In relation to individual contributions to a political fund of the trade union, the default position will be that individual members will be contributors to the political fund unless they specifically opt out (rather than the other way around, which is the current position.
Changes to the check-off arrangements for public sector workers introduced by s.15 of the Trade Union Act 2016 on 9 May 2024 are to be repealed.
Where an employer permits an employee or a learning representative to take time off for carrying out their duties under the Trade Union and Labour Relations (Consolidation) Act 1992 (ss.168 and 168A), it will also be expected, if requested, to provide reasonable accommodation and other facilities for carrying out those duties.
A new right for reasonable time off for union equality representatives is introduced to support duties related to promoting equality in the workplace.
Secondary legislation will be introduced to extend blacklisting protections; it will be unlawful not only to compile lists of trade union members etc, but also to use such lists for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers, and/or to sell or supply such lists for those purposes.
Industrial action: Changes are proposed in relation to:
balloting and notification requirements for lawful industrial action
lawful picketing;
detriment and dismissal for participating in lawful industrial action; and
restrictions on those working in regulated services from participating in industrial action.
Ballot participation thresholds will be done away with and support thresholds for industrial action will be the majority of those voting in the ballot. Additional balloting thresholds for those engaged in public services will also be done away with. Information that must be included on the voting paper in a ballot is to be significantly reduced and simplified. Provision is made for electronic balloting to be introduced.
The period of notice to be given to an employer to notify it of industrial action is to be reduced from 14 days to seven days.
Lawful picketing will no longer be dependent on the union supervision requirements contained in s.220A of the Trade Union and Labour Relations (Consolidation) Act 1992, which is to be done away with.
A new right for workers to be protected from detriment for participating in protected industrial action, or to deter them from doing so, is to be introduced, and protection against dismissal for participating in protected industrial action is to be extended.
The Strikes (Minimum Service Levels) Act 2023 is to be repealed, and industrial action restrictions on workers working in services that have been designated ‘relevant’ services under the Act are accordingly lifted.
Further reform: In addition to the anticipated reforms announced in the Labour Party’s New Deal and Manifesto, the Bill includes some measures which had not previously been anticipated. Clauses 16–18 of the Bill contain new provisions on sexual harassment, expanding the duty to prevent sexual harassment set to come into force on 26 October 2024 under the Worker Protection (Amendment Of Equality Act 2010) Act 2023. The new sections introduce:
liability for harassment by third parties;
provision for disclosures about sexual harassment qualifying as a protected disclosure under S.43B of the Employment Rights Act 1996; and
the addition of specified steps that an employer must take to demonstrate that they have taken reasonable steps in the prevention of sexual harassment for the purposes of the legislation.
The government will also consult on lifting the cap of the protective award if an employer is found to not have properly followed the statutory collective redundancy processes and on the role interim relief could play in protecting workers in these situations.
As stated above, the Next Steps document provides a general timeline on the implementation of the measures and reforms set out in the Bill. The majority of the measures in the Bill are set to be brought in through commencement legislation, and a number will go through a consultation process before their eventual implementation. According to the Next Steps document, the government expects to start consulting in 2025, although the government is ahead of itself in this regard and launched four consultations on 21 October 2024. The four consultations, which run until early December 2024, seek views of the Bill’s measures relating to a new right to guaranteed hours for zero or low hours workers, collective redundancy consultation and ‘fire and rehire’ practices, trade union legislation and statutory sick pay. This means that any substantive reforms are unlikely to take effect much before 2026. This also means the Bill is likely to see some amendment before all the measures fully come into force.
The Next Steps document also refers to a number of reforms not included in the Bill which the government is nevertheless committed to introducing. These are:
a full review of the parental leave system;
a review of the implementation of carer’s leave and an examination of the benefits of introducing paid carer’s leave;
a consultation on workplace surveillance technologies;
consultations on the creation and implementation of a single ‘worker’ status;
a call for evidence on TUPE 2006 regulations and processes;
a review of health and safety in the workplace aimed at modernising guidance and regulations;
a joint consultation with ACAS on collective grievances;
the introduction of a new National Procurement Policy Statement aimed at reforming the public procurement ahead of the commencement of the Procurement Act 2023 in February 2025; and
an extension of the Freedom of Information Act 2000 to private companies that hold public contracts and publicly funded employers.
Protection at work: The Worker Protection (Amendment of Equality Act 2010) Act 2023 to comes into force on 26 October 2024 and EHRC updates its harassment guidance and publishes eight-step guide for employers on preventing sexual harassment at work
The Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force on 26 October 2024. The Act will:
Introduce a duty on employers to take reasonable steps to prevent sexual harassment of their employees.
Give employment tribunals the power to uplift discrimination compensation by up to 25% where an employer is found to have breached the duty to prevent sexual harassment.
At present it’s only a duty to take ‘reasonable steps’, the new Employment Rights Bill already includes a change to ‘all reasonable steps’ which no doubt will come into force in due course. The Employment Rights Bill will also re-introduce employer liability for third party harassment in relation to all relevant protected characteristics under the Equality Act (sex, sexual orientation, age, disability, etc.)
Sexual harassment occurs where both:
A engages in unwanted conduct of a sexual nature.
The conduct has the purpose or effect of either violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
The EHRC has published an updated technical guidance for employers on the steps they can take to prevent sexual harassment in the workplace. The EHRC has also published an eight-step practical guide to assist with this preventative duty, including developing an effective anti-harassment policy, using a reporting system that allows workers to raise an issue either anonymously or in name, and regularly monitoring and evaluating the effectiveness of an employer’s actions.
Parents: New private members’ bill on Still-Birth and leave for Neo-natal care
The Still-Birth (Definition) Bill (a Private Members’ Bill sponsored by Liberal Democrat peer, Baroness Benjamin) received its first reading in the House of Lords on 14 October 2024. The Bill would amend the definition of still-birth to apply from 20 weeks into a pregnancy, rather than from 24 weeks as currently is the case, including for the purposes of entitlement to maternity allowance under section 35 of the Social Security Contributions and Benefits Act 1992.
Currently under the Neonatal Care (Leave and Pay) Act 2023 (which received Royal Assent on 24 May 2023) employees with responsibility for children receiving neonatal care will be entitled to receive up to 12 weeks of paid leave per year. Regulations bringing into force its main provisions are awaited.
The latest edition of HMRC’s Employer Bulletin confirms that from 6 April 2025 HMRC will begin to administer statutory neonatal care pay (SNCP). The Bulletin informs employers that SNCP:
is claimable in the first 28 days following the birth of a child after they have spent seven consecutive days in neonatal care
can be paid for a maximum period of 12 weeks but will allow some flexibility dependent upon individual parental circumstances and other statutory payments to which they may be entitled.
Pay: New Tipping Act and supplementary Code of Practice comes into force – guidance available
On 1 October 2024, the Employment (Allocation of Tips) Act 2023 and statutory Code of Practice on fair and transparent distribution of tips came into force. Under the Act, employers must distribute tips in a ‘fair and transparent’ manner, passing all tips, gratuities, and service charges on to workers, without deductions. Failure to do so could result in employment tribunal claims by workers seeking to enforce their rights.
The Advisory, Conciliation and Arbitration Service (ACAS) has published guidance on tips and service charges in relation to the Act and supplementary Code of Practice which are both now in force. The guidance explains what the new law says, sharing tips fairly, and the obligation to have a written policy and to keep records. The guidance also covers which tips the law applies to, when tips must be paid, tronc systems and what happens if tips are not being paid correctly.
The DBT has also published non-statutory guidance for employers for employers on distributing tips fairly. The guidance is aimed at helping employers apply the statutory code of practice on fair and transparent distribution of tips, and applies to all sectors and businesses where tips are received. The guidance is not part of the statutory Code of Practice, legal advice or an exhaustive account of what is acceptable under either the Employment Rights Act 1996 or the statutory Code of Practice.
Equality: Office for Equality and Opportunity replaces the Equality Hub
The Equality Hub has been replaced by the Office for Equality and Opportunity. The Office for Equality and Opportunity will cover the overall framework of equality legislation in the UK, including disability policy, ethnic disparities, gender equality and LGBT+ rights.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
In our last update of the year we bring you technical tribunal processes...
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Employment Law Case Update – September 2024
Employment,
27th September 2024
Employment Law
This month our employment law case updates contain some key issues in employment law: discrimination protections, and the balance between the rights and freedoms of individuals and the effect their words or acts may have on those around them.
Collective Agreements: Supreme Court restrains Tesco from ‘firing and rehiring’ employees on less favourable terms
Unfair Dismissal: Dismissal based on capability and performance is fair
Equality Act: Complaint by LGBT charity about ‘gender critical’ tweets did not induce or cause discrimination
Equality Act: English Nationalist loses appeal for protection of his views
Collective Agreements: Supreme Court restrains Tesco from ‘firing and rehiring’ employees on less favourable terms
In Tesco Stores Ltd v Union of Shop, Distributive and Allied Workers (USDAW) [2024] UKSC 28, in a unanimous decision in which Lord Burrows and Lady Simler delivered the leading judgment, the Supreme Court agreed with the previous High Court decision and restored the injunction restraining Tesco from terminating employment contracts for the specific purpose of depriving employees of their ‘permanent’ contractual right to retained pay and offering re-engagement without this inclusion. It was held that the employment contracts contained an implied term which prevented Tesco from exercising dismissal rights for this purpose.
The Supreme Court allowed the appellant employees’ (and their union’s) appeal, concerning whether the Court of Appeal, Civil Division, had erred in finding that the respondent company (Tesco) had been entitled to terminate its employees’ employment contracts for the specific purpose of depriving them of ‘retained pay’ (RP) (a financial contractual entitlement which was described as a ‘permanent’ benefit), and to offer re-engagement on terms without RP (the ‘fire and re-hire’ mechanism). The High Court had granted an injunction to restrain Tesco from terminating the employees’ employment to remove the RP term. The Court of Appeal had allowed Tesco’s appeal. The court ruled among other things, that: (i) on the true construction of the express RP term in the relevant employment contracts, the word ‘permanent’ conveyed that the right to RP was not time-limited in any way and would continue to be paid to employees for as long as their employment in the same role continued, subject only to the other two qualifications set out in the RP term; (ii) however, applying the test of business efficacy (or obviousness), Tesco was precluded by an implied term from exercising the contractual right to dismiss the claimants on notice for the purpose of removing or diminishing their right to receive permanent RP; (iii) the exception to the general rule that a contract of employment was not specifically enforceable was engaged, in circumstances where there had been no breakdown of mutual trust and confidence (Tesco was prepared to re-engage the relevant employees), and where damages would be inadequate; and (iv) accordingly, the injunction which the High Court had granted in favour of the employees would be reinstated.
Unfair Dismissal: Dismissal based on capability and performance is fair
In Kikwera-Akaka v Salvation Army Trading Company Ltd [2024] EAT 49, the EAT found the Employment Tribunal did not err in concluding that the Claimant had been fairly dismissed for capability and performance. The Claimant worked for the Respondent in one of its charity shops. Many of the staff who work in those shops are volunteers and some have additional vulnerabilities. An incident occurred between the Claimant and a vulnerable volunteer, as a result of which he received a final written warning. That stated that further misconduct may result in dismissal. In addition, he was placed on a personal improvement plan (PIP). The Tribunal found that this was specifically linked to the incident with the volunteer: one aspect of his performance which the Respondent made clear needed to improve through that PIP was his interaction with volunteers. The Claimant did not consider that there was anything which he needed to address in that regard. The PIP ended a few days earlier than planned. The Claimant was invited to a performance capability meeting to discuss the PIP. He was expressly warned that dismissal may result. The Claimant’s position regarding his interaction with volunteers did not change: he rejected the suggestion that he needed to improve or that he required further training. He was dismissed.
The Claimant’s appeal against dismissal, in which he maintained his previous stance, was unsuccessful. On the facts the Tribunal concluded that the Claimant had been given a fair opportunity to improve his performance: his interaction with volunteers was a significant and important part of his performance, and was also linked to the misconduct which led to the final written warning. The Tribunal did not err in its approach or in its application of relevant legal principles. Observations upon the differences, and similarities, in a fair approach when an employer considers dismissal for capability compared to misconduct.
Equality Act: Complaint by LGBT charity about ‘gender critical’ tweets did not induce or cause discrimination
In Bailey v Stonewall Equality Ltd [2024] EAT 119, the EAT held that an Employment Tribunal did not err in rejecting a claim, by a barrister who holds gender critical beliefs, that Stonewall, an LGBT campaign charity, caused or induced her chambers to discriminate against her on the grounds of her protected belief, contrary to section 111 of Equality Act 2010 (i.e. relating to instructing, causing or inducing another person to contravene the Act). The tribunal’s finding that the charity’s complaint was a ‘protest’, without any specific aim in mind except perhaps a public denial of the chambers’ association with the barrister’s views and contained no element of threat, did not satisfy a finding of inducing or causing an act of discrimination.
Equality Act: English Nationalist loses appeal for protection of his views
In Thomas v Surrey and Borders Partnership NHS Foundation Trust (1) and Brett (2) [2024] EAT 141, the EAT ruled that English nationalism is not a legally protected philosophical belief under the Equality Act 2010 (EqA 2010). The Claimant, Steven Thomas, a health worker, has lost his appeal against an employment tribunal’s decision that his belief in English nationalism, which included anti-Islamic views, was not one which was protected under the EqA 2010. This original decision was reached at a preliminary hearing in the claim he brought against a National Health Service (NHS) trust after it ended his employment after three months.
Judge Clive Sheldon KC wrote in the judgment of the EAT: ‘The Claimant’s views are of an English nationalism which believes that there is no place in British society for Muslims or Islam itself… The Claimant is not prevented from holding his views. But he is outside of the right to complain that he has been discriminated against in relation to those beliefs.’
‘English Nationalism can be a legally protected philosophical belief, but the Claimant’s specific views, which included that Muslims should be forcibly deported from the UK, did not merit protection under free expression rights enshrined in the European Convention of Human Rights,’ he added.
This was because his expressed beliefs violated another right in the doctrine—that no one can perform acts ‘aimed at the destruction of any of the rights and freedoms’ of others, and, added the judge, he cannot also claim protection from discrimination under the EqA 2010 because his views are not worthy of respect in a democratic society.
Thomas’ solicitor, Robin Tilbrook of Tilbrook Solicitors, said that his client will take his case to the Court of Appeal, or to the European Court of Human Rights if necessary. Tilbrook said he believed the judgment misinterpreted the European Convention article that limits Thomas’ free speech rights as binding on the employer, rather than on the state. He likened Thomas’ case to Redfearn v United Kingdom [2013] IRLR 51, where another English Nationalist won his European human rights case despite losing his employment claim in the UK.
His past political affiliation to the English Democrats, a minor far-right party, meant that Thomas was sanctioned because his beliefs were ‘unacceptable to the woke view of the world’, Tilbrook added. Tilbrook is the current national chair of the English Democrats.
‘In this case, there are comments about Islam that have taken my client’s views out of that protection’, Tilbrook said. ‘They have put my client in a position where he’s always in danger of being fired by an employer.’
The case is part of a surge in claims about protected beliefs that lawyers say are incrementally blurring the lines between unconventional but legally valid views and politicised public debates.
The trust argued in June that Thomas’ views were ‘akin to Nazism‘, which British courts have ruled is not protected. They also defended the employment tribunal claim on the basis that he was actually dismissed because he lied in his résumé about an unspent conviction.
Thomas had either posted himself, or reposted, on social media platform X, comments such as ‘Ethnic cleansing…always happens to Muslims…wonder why?‘ and used the hashtag ‘#RemoveAllMuslims’, according to the judgment of the employment tribunal.
Oscar Davies of Garden Court Chambers, counsel for Thomas, argued in written submissions in the appeal case that the views of the claimant ‘might well be considered offensive and abhorrent to some’—but did not seek to destroy the rights of anyone.
As such, they did not violate the European Convention on Human Rights, Davies added.
But Sheldon J upheld the employment tribunal’s reasoning for dismissing the case.
‘A finding that the claimant’s beliefs included the banning of Islam or the forcible removal of Muslims from the United Kingdom is only consistent with an infringement—and in fact the destruction—of rights of others’, he ruled.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
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Employment Law General Update – September 2024
Employment,
27th September 2024
Employment Law
September’s employment law updates highlight the need for change in zero hours contracts following a TUC survey, progress with AI as the UK signs an international treaty on AI risks, and the ECHR has issued an action plan for addressing Pontins’ discriminatory practices regarding travellers as well as published new guidance on how to support disabled staff with hybrid working. We also bring you an update from HMRC regarding new statutory leave and pay rights for parents of premature babies. Much food for thought.
Zero-hours Contracts: TUC survey highlights importance of government plans on zero-hours contracts
Technology: UK signs first legally binding international treaty on AI risks
Discrimination: EHRC action plan sets out steps Pontins must take to address its discriminatory policies
Disability: EHRC publishes new guidance for employers supporting disabled staff with hybrid working
Statutory Pay: New Neonatal Care Leave and Pay to apply from April 2025
Zero-hours Contracts: TUC survey highlights importance of government plans on zero-hours contracts
At the end of August, the Trade Union Congress (TUC) published the results of a poll into zero-hours contracts, which reveal that 84% of zero-contract workers want regular full-time work hours, while 75% of those polled indicated they are struggling to meet living expenses due to not being offered enough hours. The TUC suggests that the upcoming Employments Rights Bill is crucial in order to ensure a rise in employment standards.
The poll of zero-hours contract workers between 9 and 21 May 2024 further reveals that:
14% of those surveyed do not want to work regular hours;
66% of people employed on zero-hours contracts are seeking extra work;
58% of zero-hours workers’ requests for more hours are being refused by employers;
52% have had shifts cancelled at less than 24 hours’ notice;
66% of zero-hours contract workers say they received no compensation for cancelled shifts—with just 5% fully compensated;
76% say they felt they had to work despite feeling unwell;
50% say they have experienced difficulty managing childcare with their work, and this number rises to 67% for mothers on zero-hours contracts;
76% say they have missed out on a planned family or social event due to needing to work.
Technology: UK signs first legally binding international treaty on AI risks
On 5 September, the UK government signed the first legally-binding international treaty addressing the risks of AI. The new framework agreed by the Council of Europe commits parties to collective action to manage AI products and protect the public from potential misuse. The treaty aims to strengthen safeguards against potential threats to human rights, democracy, and the rule of law posed by AI. It commits parties to collective action to manage AI products and protect the public from potential misuse. It will ensure countries monitor AI development and that the technology is managed within strict parameters. The government will work with regulators, devolved administrations, and local authorities to implement the treaty’s requirements once ratified. This could include strengthening the Online Safety Act 2023.
Discrimination: EHRC action plan sets out steps Pontins must take to address its discriminatory policies
The Equality and Human Rights Commission (EHRC) has developed an action plan to tackle discrimination endured by Irish Travellers at holiday park operator Pontins. Pontins have already issued a formal apology to the Irish Traveller community it discriminated against, the first step in the action plan, and have also agreed to introduce a zero-tolerance approach to discrimination, the permanent removal of the electoral roll terms, a whistleblowing action plan to strengthen protection for whistleblowers, and safeguards in systems and processes. The EHRC will monitor the implementation of the action plan.
The EHRC first started investigating Pontins in February 2024, and later served Pontins with an unlawful act notice. The investigation uncovered company systems and practices aimed at banning Irish Travellers from their holiday parks between 2013 and 2018.
The EHRC’s investigation found 11 unlawful acts committed by Pontins which discriminated against Irish Travellers. These included:
refusing or cancelling any bookings that were made by people with an Irish accent or surname,
a list of Irish surnames, published on its intranet page, titled ‘undesirable guests’. Staff at Pontins were then required to block any potential customers with those names from booking, and
introducing an electoral roll requirement in its booking terms and conditions as a disguised form of discrimination against the Traveller community.
Disability: EHRC publishes new guidance for employers supporting disabled staff with hybrid working
The Equality and Human Rights Commission (EHRC) has published new guidance to help small and medium sized employers understand their legal obligations and the practical steps they can take to best support disabled employees with hybrid working.
The Equality Act 2010 places a duty on employers to make reasonable adjustments, meaning they must take steps to remove, reduce or prevent obstacles a disabled worker faces. Making these adjustments creates environments where staff can perform more effectively and achieve their full potential. Poorly implemented hybrid working arrangements can create difficulties for disabled staff, including isolating them from colleagues, preventing access to necessary support or equipment, and creating a culture that lacks inclusion.
This guidance is designed for small and medium sized employers so they can support disabled staff with reasonable adjustments and help their employees to thrive when hybrid working. It provides practical tips for what employers can do, such as the usage of workplace assessment tools to help identify technology that can help disabled employees who work flexibly, and the how providing specialised desks can minimise discomfort for staff with musculoskeletal conditions.
The EHRC’s guidance, which covers recruitment and all stages of employment, explains the law for employers and provides conversation prompts to ensure managers foster a culture where reasonable adjustments can be discussed openly. It also provides practical tips, conversation prompts (to ensure managers foster a culture where reasonable adjustments can be discussed openly), questions and case study examples.
Statutory Pay: New Neonatal Care Leave and Pay to apply from April 2025
From April 2025 HMRC will be introducing a new statutory allowance — Statutory Neonatal Care Leave and Pay (SNCP) on behalf of the Department for Business and Trade (DBT).
HMRC understands that there will be circumstances where a baby is born prematurely and poorly and may then receive neonatal care in hospital. In some cases, this care may need to last for a prolonged period of time. SNCP therefore looks to reduce some of the burden on new parents who may have to return to their workplace at a time when their baby is still receiving hospital care.
This new statutory allowance:
is going to be paid to those qualifying parents who have a child that requires neonatal care in the first 28 days following the birth of that child
can be paid for a maximum period of 12 weeks but it can be claimed flexibly dependent upon individual parental circumstances
SNCP will give such parents the option to:
take up to 12 weeks of paid leave;
take SNCP in addition to other leave entitlements currently in operation such as statutory maternity or paternity leave;
afford them the ability to find, and spend, more time with their baby in neonatal care at what is most probably a time of great stress.
SNCP is expected to broadly follow the same administration process as other existing statutory payments such as Statutory Parental Bereavement Pay & Leave (SPBP).
The Employment Rights Bill, which will contain the new government’s legislative and other proposals contained in the King’s Speech delivered on 17 July 2024, was promised to be introduced within 100 days of entering office. That will take us to 12 October 2024. We therefore look forward to an interesting October of proposed changes to the Employment Law world.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
In our last update of the year we bring you technical tribunal processes...
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Employment Law Case Update – July 2024
Employment,
26th July 2024
Employment Law
This month’s case digest covers how to compare workers in cases of less favourable treatment, considering different aspects of unfair dismissal claims, the intricacies of holiday pay accrual, and when time spent doing something work-related is not actually working time for the purposes of pay and therefore the National Minimum Wage.
Worker Status: Less favourable treatment on ground of part-time working
Unfair Dismissal: Care workers’ vaccine preference can’t top residents’ safety
Unfair Dismissal: ET made inadequate findings on employer’s search for suitable alternative employment
Holiday Pay: EAT considers Coronavirus and Shimizu carry-over claims
National Minimum Wage: Time spent travelling on employer’s minibus to and from place of work is not ‘time work’
Worker Status: Less favourable treatment on ground of part-time working
In Augustine v Data Cars Ltd [2024] EAT 117, the EAT held that a part-time taxi driver was treated less favourably by the employer’s application of a £148 per week flat rate circuit fee because, applying the pro rata temporis principle, the claimant was:
paying a higher circuit fee than his full-time comparator when considered as a proportion of his hours worked, and/or
was taking home a lower hourly rate of pay.
The principle of pro rata temporis means whereby when a comparable permanent employee is employed with specific terms and conditions of employment, the fixed-term employee will be employed with the same terms and conditions of employment, based on a comparison of the period of employment of the comparable permanent employee and the fixed-term employee respectively.
However, because the part-time working was not the ‘sole’ reason for the less favourable treatment, the imposition of the flat rate fee did not breach the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, SI 2000/1551. While the EAT preferred the test on causation set out by the EAT (England) in Sharma v Manchester CC [2008] IRLR 336 and Carl v University of Sheffield [2009] IRLR 616 (that the part-time working has to be the ‘effective and predominant’ cause of the less favourable treatment) it nonetheless applied the test set out by the Inner House of the Court of Session (CSIH) (Scotland) in McMenemy v Capita Business Services Ltd [2007] IRLR 400 (that the part-time working has to be the sole cause of the less favourable treatment) because it recognised the legitimate public interest in having a consistent approach in cases both north and south of the Scotland/England border.
Unfair Dismissal: Care workers’ vaccine preference can’t top residents’ safety
In Masiero and Others v Barchester Healthcare Ltd [2024] EAT 112, the EAT has agreed that a healthcare provider’s mandatory coronavirus (COVID-19) vaccine policy did not infringe a group of care home workers’ human rights, ruling that they were fairly dismissed because the company had a right to protect its residents.
In particular, the EAT held that the employment tribunal had been entitled to find that:
the claimants’ dismissals were compatible with their rights under the European Convention on Human Rights and the Human Rights Act 1998;
the respondent’s policy did not involve the imposition of a mandatory requirement to submit to medical treatment in abrogation of the claimant’s right to free and informed consent;
the interference with the claimants’ Article 8 rights was justified in pursuit of the respondent’s aims of (among other things) protecting care home residents’ rights to life under Article 2.
Unfair Dismissal: ET made inadequate findings on employer’s search for suitable alternative employment
In Birkett v Integral UK [2024] EAT 107, the EAT held that the employment tribunal had made insufficient findings in respect of:
the respondent’s process of searching for alternative jobs, at the time of the claimant’s dismissal, and
the circumstances in which the claimant was unsuccessful for a specific vacancy, for which he had been interviewed.
Both issues were relevant to the fairness of the claimant’s dismissal for the purposes of section 98(4) of the Employment Rights Act 1996:
merely to state a conclusion on a disputed point that there were, for example, no vacancies, without any analysis of, and findings on, the respondent’s enquiries, was not sufficient;
if findings are not made about the basic fairness of the recruitment process, the risk is that it would be open to any employer to absolve itself of liability by offering an interview, without a wider analysis of the fairness for the purposes of Employment Rights Act 1996, s 98(4).
Holiday Pay: EAT considers Coronavirus and Shimizu carry-over claims
In Knight v Off Broadway Ltd [2024] EAT 109, the claimant, a bar manager, brought claims that, in addition to a payment in lieu of holiday accrued in the leave year in which his employment terminated, he was also entitled to carry-over unused holiday from previous years.
The EAT held that the employment tribunal had:
correctly found on the facts of the case that there were no Covid-related circumstances which entitled the claimant to carry-over unused holiday entitlement under the then in place (but now withdrawn) amendments to the Working Time Regulations 1998, SI 1998/1833 (WTR 1998);
erred in failing to consider whether the respondent had done sufficient to inform the claimant, in particular, that any unused holiday at the end of the holiday year could not be carried over (see Max-Planck-Gesellschaft zur Főrderung der Wissenschaffen e.V. v Shimizu [2018] All ER (D) 30 (Nov), the principles from which have now been incorporated into the WTR 1998).
HHJ Auerbach noted that in Shimizu the Court of Justice of the European Union referred to the employer being required to ensure that the worker is actually in a position to take the paid annual leave to which he is entitled by encouraging him ‘formally if need be’ to do so, while ‘informing’ him in good time that leave not taken during the holiday year will be lost. He said that would be sufficient in the given case to satisfy that obligation will be a fact-sensitive matter for the tribunal.
National Minimum Wage: Time spent travelling on employer’s minibus to and from place of work is not ‘time work’
In Taylors Service Ltd v Commissioners for HM Revenue and Customs [2024] EAT 102, HMRC issued the respondent (a company providing labour to poultry farms around the country) with a notices of underpayment of the national minimum wage because it did not pay its workers on zero hours contracts for time spent travelling on its minibuses from their home addresses to and from farms. The respondent appealed, first to the employment tribunal which dismissed the appeal, and then to the EAT.
The EAT allowing the appeal, holding that:
the approach taken by the Supreme Court in Royal Mencap Society v Tomlinson-Blake [2021] IRLR 466 to the interpretation of the National Minimum Wage Regulations 2015 (NMW 2015), SI 2015/621, regs 30 and 32 also applies to regs 30 and 34 and, accordingly, time spent ‘just’ travelling is not ‘time work’ for the purposes of reg 30 unless it is deemed to be such by reg 34;
as the tribunal in this case had found that the workers were not working in the ordinary sense when on the minibus, and were not deemed to be engaged in time work by virtue of reg 34, the only conclusion open to the tribunal on the facts as it found them to be was that the workers were not engaged in ‘time work’ for the purposes of NMW 2015, SI 2015/621, reg 30.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
In our last update of the year we bring you technical tribunal processes...
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Employment Law General Update – July 2024
Employment,
26th July 2024
Employment Law
This month we bring you a brief summary of the employment, pensions and immigration highlights of the King’s Speech, a look at new guidance from the EHRC on job advertising and how not to fall foul of the legislation, with a particular reference to the protected characteristic of ‘sex’. We also have a looking at the reasons and recommendations for a Seasonal Worker Scheme and consider the results of the Co-Op’s first pay gap report considering the socioeconomic background of workers.
Discrimination: EHRC updates its guidance on discriminatory adverts
Immigration: MAC publishes review of the Seasonal Worker visa
Pay Disparity: Co-op publishes socioeconomic pay gap report
The King’s Speech 2024: Employment, Pensions and Immigration
His Majesty, King Charles III, has set out the government’s priorities and proposed policies for the next parliamentary session at the State Opening of Parliament, which took place on 17 July 2024.
This includes 40 legislative proposals to be addressed in the 2024–2025 parliamentary session. In his speech, King Charles explained that the government’s ‘legislative programme will be mission led and based upon the principles of security, fairness and opportunity for all’.
This King’s Speech 2024 focuses on improving the living standards of working people through economic growth and taking the ‘brakes off Britain’. A major employment announcement came in the form of the Employment Rights Bill, as the government commits to deliver its ‘Plan to Make Work Pay: Delivering a New Deal for Working People’ and to legislate to ban zero-hour contracts, end fire and rehire practices, and introduce certain employment rights from day one. The government will also work on delivering a new Draft Equality (Race and Disability) Bill, which will enshrine the full right to equal pay for ethnic minorities and disabled people in law. The Skills England Bill will be introduced to seek to understand national and local skills needs via establishment of a new body, ‘Skills England‘. The Skills England Bill will also establish a new partnership with employers and reform the apprenticeship levy.
Pensions
The speech contained the announcement of a new Pensions Schemes Bill, stating, ‘Bills will be brought forward… to strengthen pensions investment‘. The Bill aims to increase the amount available for pension savers and states it could help an average earner, who saves over their lifetime in a defined contribution scheme, to have over £11,000 more in their pension pots with which to secure their retirement income.
Immigration
The speech also covered the introduction of the new Border Security, Asylum and Immigration Bill which seeks to ‘modernise‘ the asylum and immigration system and strengthen and secure the border.
Discrimination: EHRC updates its guidance on discriminatory adverts
The Equality and Human Rights Commission (EHRC) has updated its guidance on discriminatory adverts. The main updates are to the section ‘When is an advert which restricts a job or service to particular groups unlawful’. The guidance now includes examples in relation to an ‘occupational requirement’ under Schedule 9 of the Equality Act 2010 and where an occupational requirement applies, the employer must make sure that it is objectively justifiable.
Guidance in relation to the protected characteristic of ‘sex’ now states that ‘sex’ means a person’s legal sex as recorded on their birth certificate or their Gender Recognition Certificate (GRC). This means that a sex-based occupational requirement that an applicant is a woman, as is common within specialist support services for women, such as rape counselling, will include women who are recorded female at birth and also transgender women who have obtained a GRC. The guidance notes, however, that Schedule 9 of Equality Act 2010 also permits an occupational requirement to exclude transgender persons where it is objectively justified, and this can include people who have obtained a GRC. It states that a ‘sex-based’ occupational requirement to be a woman under Schedule 9 cannot include transgender women who have not obtained a GRC, as they do not have legal status as women under Equality Act 2010.
Immigration: MAC publishes review of the Seasonal Worker visa
The Migration Advisory Committee (MAC) has published its review of the Seasonal Worker visa, which sets out the reasons for having a Seasonal Worker Scheme, how the scheme works, the economic and social impact of the scheme, the impact of the scheme on employers, the welfare issues that arise for the workers, and recommendations based on five key themes. The report considers the call for evidence that ran from June–October 2023, stakeholder engagement, and both internal and external research.
Pay Disparity: Co-op publishes socioeconomic pay gap report
The Co-op has become the first retailer to publish a pay gap report based specifically on socioeconomic background. The report collected data submitted voluntarily from 48% of its 57,000 employees, finding a mean pay gap of 5.2% between those of a higher and of a lower socioeconomic background. Employees from a lower socioeconomic background are also less likely to progress into more senior positions, according to the data.
As a result of the findings, Co-op has ‘doubled down’ on its Social Mobility Plan, including campaigning for the government to make socioeconomic background a protected characteristic under the Equality Act 2010. Co-op has also set a target of collecting 80% of socioeconomic employee data for the next 12 months. In addition to the main report, Co-op also published a one-page summary.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
In our last update of the year we bring you technical tribunal processes...
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Employment Law Case Update – June 2024
Employment,
26th June 2024
Employment Law
This month our employment news has been rolling in from all levels of the courts and tribunals. A claim for personal injury due to workplace suspension and discipline was dismissed by the High Court who also found that legal representation wasn’t needed for a regular disciplinary hearing for a trade union. The Court of Appeal dismissed a claim of racial discrimination by contract workers, saying it didn’t fit the legal criteria, while the EAT sent back a case about a company’s holiday policy during the pandemic, saying it might be unfair to non-British workers. A postal worker’s dismissal due to illness should have considered job reassignment options, according to another ruling from the EAT, and further confirmed that future claims can be included in settlement agreements if clearly stated.
Conduct: Civil claim for personal based on suspension and disciplinary process fails
Trade Unions: Trade union disciplinary hearing could proceed without legal representation
Race Discrimination: Contract workers could not bring indirect discrimination pay claim against client
Discrimination: Employer’s pandemic holiday policy was indirectly discriminatory but justification needs to be reconsidered
Unfair Dismissal: Tribunal should have considered the issue of redeployment as a matter of course
Conduct: Civil claim for personal injury based on suspension and disciplinary process fails
In Cavanaugh v Folsana Pressed Sections Ltd [2024] EWHC 1381 (KB), the claimant, who had been dismissed for gross misconduct, was unsuccessful in his claim that the defendant (his former employer) had suspended him without reasonable and proper cause, and that its breaches of duty, contractual and tortious, in suspending him and subjecting him to disciplinary investigation, had caused his psychiatric injury. The High Court held that:
the defendant had not acted in breach of any contractual or tortious duty to the claimant in suspending the claimant, carrying out an investigation into his treatment of staff, or pursuing disciplinary proceedings against him, in circumstances where another employee had resigned and had raised genuine issues as to the claimant’s treatment of him and of other employees;
the mental health notifications made by the claimant had not put the defendant on notice that further psychiatric injury had been a reasonably foreseeable consequence of its continuation of the investigation and disciplinary process;
the defendant had made such adjustments to the process as the claimant had requested, and, in any event;
the alleged breaches had not been the cause of the claimant’s losses.
Trade Unions: Trade union disciplinary hearing could proceed without legal representation
In Bhogal v National Education Union (NEU) [2024] EWHC 1295 (Ch) the High Court refused to grant an injunction which the claimant sought, to allow him legal representation at a disciplinary appeal hearing. It held that:
the NEU disciplinary rules do not permit legal representation at hearings and the claimant had no reasonable prospect of showing otherwise;
the claimant did have reasonable prospects of showing that where natural justice requires legal representation to be granted, then that will override any contractual provision preventing legal representation (i.e. as a matter of law);
the claimant did not have reasonable prospects of showing that natural justice required legal representation at his hearing, as this was a fairly ordinary disciplinary case.
In deciding the final issue the court took into account the following facts, based on the decision in R v Home Secretary ex p Tarrant [1985] QB 251:
the seriousness of the charge;
whether any points of law were likely to arise;
the capacity of the claimant to present their own case;
procedural difficulties;
the need for reasonable speed in the decision making process;
the need for fairness between the claimant and other participants.
Race Discrimination: Contract workers could not bring indirect discrimination pay claim against client
In Boohene v The Royal Parks Ltd [2024] EWCA Civ 583 the claimant contract workers, who were predominantly of black or other minority ethnicity, brought a claim in the employment tribunal for indirect racial discrimination purportedly under section 41 of the Equality Act 2010, which is headed ‘Contract Workers’. The alleged discrimination consisted of a failure to pay the claimants the London Living Wage, which the respondent paid to its directly employed staff, who were predominantly white. The employment tribunal allowed the claim and the EAT overturned the decision. The claimants appealed to the Court of Appeal.
Dismissing the appeal, the Court of Appeal held that the claim of indirect discrimination had not fallen within the scope of s.41(1) of the Equality Act 2010. The claimants could have no claim against the respondent under s.41 because the treatment which they complained about related to the remuneration payable under their contracts with a third party and had nothing directly to do with the principal-worker relationship.
Discrimination: Employer’s pandemic holiday policy was indirectly discriminatory but justification needs to be reconsidered
In NLS Ltd v Zaluski [2024] EAT 86 the respondent had policies that staff were responsible for ensuring that authorised leave factored in any period of quarantine, and that staff must return from holiday on the pre-authorised date, with any failure to do so beyond three days liable to be classed as gross misconduct. The claimant had to travel to Poland following the death of his family and due to various quarantine periods he overstayed his leave and was given a final written warning. The employment tribunal held that the respondent’s policy indirectly discriminated against those who, like the claimant, are not British, and was not justified.
The EAT allowed the respondent’s appeal in relation to justification. The EAT also found that the tribunal had erred in awarding aggravated damages. Both issues were remitted to a different tribunal.
Unfair Dismissal: Tribunal should have considered the issue of redeployment as a matter of course
In Bugden v Royal Mail Group Ltd [2024] EAT 80, the claimant, who had been dismissed as a result of periods of ill-health absence over a number of years, contended that the employment tribunal should itself have raised the possibility of redeployment both as a potential reasonable adjustment under s.20 of the Equality Act 2010 and in relation to its determination of the fairness of the dismissal under s.98(4) of the Employment Rights Act 1996. This issue had not been argued by the claimant before the employment tribunal and was not referred to in the list of issues.
The EAT held that the tribunal:
had not erred in failing to raise redeployment as a potential reasonable adjustment with the parties as it was not an issue which ‘shouted out’ from the material before it, but
had erred in failing to consider the issue of redeployment, as an alternative to dismissal, when determining the fairness of the dismissal as this was a sufficiently well-established principle that it should have addressed as a matter of course even though it had not been raised by the parties.
Settlement of Future Claims: EAT in England and Wales follows Court of Session’s decision in Bathgate
In Clifford v IBM United Kingdom Ltd [2024] EAT 90, the EAT held that:
future claims can be waived in a settlement agreement so long as appropriately clear language is used; and
this is the case irrespective of whether it is a ‘clean break’ end of employment situation or the parties remain in a continuing employment relationship.
The EAT in England and Wales endorsed and followed the Court of Session’s decision in Bathgate v Technip Singapore [2024] IRLR 326. At the heart of the decision is the reasoning that the purpose of s.147(3) of the Equality Act 2010, and in particular subparagraph (b), is to prevent an employer being able to use a blanket waiver in relation to which an employee could sign away their rights without appreciating the significance of what they were doing. There are, however, no temporal limitations on what kind of claims can be waived. As such, s.147(3) of the Equality Act 2010 regulates how the parties enter into a statutory settlement agreement, rather than constraining what kinds of claims can be settled.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
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Employment Law General Update – June 2024
Employment,
26th June 2024
Employment Law
This month we bring you a range of employment law updates. A CIPD survey revealed that a quarter of UK employees faced workplace conflict in the past year, with women, ethnic minorities, and disabled workers most affected. PwC reported a slight decrease in the UK’s gender pay gap, though significant disparities remain, particularly in the Financial Services sector. NHS Employers updated guidance on settlement agreements and confidentiality clauses and the Institute of Directors opened a consultation on a new voluntary Code of Conduct for Directors to enhance decision-making and public trust.
CIPD Study: Quarter of UK employees have experienced workplace conflict in the past year
Gender Pay Gap: PwC publishes data on mandatory UK gender pay gap reporting 2023–2024
Contracts: NHS Employers updates guidance on use of settlement agreements and confidentiality clauses
Corporate Governance:Institute of Directors publishes consultation on Code of Conduct for Directors
CIPD study: Quarter of UK employees have experienced workplace conflict in the past year
On 11 June 2024, website People Management published an article revealing that a recent survey by the CIPD has highlighted that women, ethnic minorities and disabled workers are the most likely to report encountering conflict, as commentators call for employers to recognise the importance of a positive culture.
a quarter (25 per cent) of UK employees – an estimated eight million people – have encountered workplace conflict in the last year;
the most prevalent types of conflict were: being humiliated or undermined at work (48 per cent), being shouted at or having a heated argument (35 per cent), verbal abuse or insult (34 per cent) and discriminatory behaviour (20 per cent);
just over half (54 per cent) of those who reported conflict said they were satisfied with their jobs, compared to 77 per cent of those who did not experience conflict;
employees who experienced conflict were found twice as likely to say they would leave their job in the following year (33 per cent, compared to 16 per cent of those who had not reported conflict).
The report also noted that:
people who experience conflict in the workplace have lower job satisfaction and are more likely to experience ill mental and physical health;
less than a third (28 per cent) of those who experienced workplace conflict in the past 12 months reported that their work had a good impact on their mental health, compared to 43 per cent of those who did not experience conflict;
a quarter (25 per cent) of those who reported experiencing conflict said work had a positive impact on their physical health, compared to 32 per cent of those who did not face conflict;
two fifths (42 per cent) of those who experienced workplace conflict in the previous 12 months said they ‘always’ or ‘frequently’ felt exhausted, and 37 per cent said they always or often felt under pressure.
The CIPD survey found that employees’ most common response to conflict was to simply ‘let it go’ (47 per cent), followed by discussing with a manager or HR (29 per cent), informal discussions, either with someone outside work such as family or friends (21 per cent) or with the other person involved (17 per cent). Only a few (1 per cent) took the case to an employment tribunal. Two thirds (66 per cent) of people said their conflict was either fully or partially resolved. Just 36 per cent said their workplace conflict had been fully resolved.
The report said: “It would, of course, be unrealistic to suggest that every source of conflict can be resolved to the full satisfaction of both parties. But more than a third did say they had no resolution at all.”
It continued: “Those who reported conflict were significantly less likely to think senior managers and directors had the right vision, or that they were able, or could be trusted, to act with integrity.”
For more commentary on the findings and advice and approaches to management which can be helpful, please read the full article.
Gender Pay Gap: PwC publishes data on mandatory UK gender pay gap reporting 2023–2024
PwC has published data relating to the mandatory pay gap of organisations reporting for the year 2023–2024. The data shows a decrease in the mean gender pay gap of 0.4% over the past year, down from 12.2% to 11.8%, with an overall reduction of 1.6% in the mean pay gap since 2017 when reporting started. This time around 10,408 companies disclosed their gender pay gap. Almost 60% of organisations reported decreases, though the majority of these reductions were below 2%.
The Financial Services sector continues to report the biggest gender pay gaps, which is reflective of the ongoing issues with gender equality within the sector.
According to PwC, these incremental reductions in the gender pay gap are indicative that ‘pay parity remains out of reach’, but that there are things that businesses can do in order to drive change.
Contracts: NHS Employers updates guidance on use of settlement agreements and confidentiality clauses
NHS Employers has updated its guidance for employers on the use of settlement agreements and confidentiality clauses when resolving a workplace dispute or ending an employment contract. The guidance includes the latest information on legislative requirements, good practice examples on the freedom to speak up, guidance on Mutually Agreed Resignation Schemes, information on board members and the NHS England Fit and Proper Person Test Framework, and links to further resources.
Corporate Governance: Institute of Directors publishes consultation on Code of Conduct for Directors
The Institute of Directors (also known as the IoD) has published a consultation document on a Code of Conduct for Directors. The Institute of Directors has said that the Code will be a practical tool to help directors make better decisions and provides organisational leaders with a behavioural framework to help them build and maintain public trust in their business activities. The Institute of Directors emphasises that the Code is a voluntary commitment and is not intended to create a new burden of compliance.
The Institute of Directors requests the business community and general public to provide their views on the Code by 16 August 2024.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
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What are the Practical Considerations for Becoming a Real Living Wage Employer?
Peter Robertson,
24th May 2024
Employment Law
Today’s evolving landscape of employment standards, the real living wage has emerged as a crucial benchmark for fair compensation. At Dixcart UK, we’re dedicated to providing practical guidance to our clients across various sectors. Join us as we look into the implications of the real living wage for employers and offer insights to navigate this transition effectively.
Understanding the Real Living Wage
Unlike statutory minimum wage regulations, the real living wage is a voluntary commitment undertaken by employers. It aims to ensure that employees receive compensation reflecting the actual cost of living. Updated annually, this wage seeks to bridge the gap between minimum wage standards and the economic realities faced by workers.
For employers considering adopting the real living wage, careful evaluation is essential. While the potential benefits, such as attracting top talent and enhancing workforce morale, are evident, practical considerations must be taken into account.
Financial Assessment
Before committing to the real living wage, conduct a thorough financial assessment of your business. Analyse your current wage structure and revenue streams to determine if you can afford to meet the real living wage rates. Consider potential adjustments to your budget and financial projections to accommodate increased wage costs.
Addressing Challenges
Transitioning to the real living wage may pose challenges for employers, particularly in sectors with tight profit margins. Anticipate potential hurdles, such as renegotiating contracts with clients or adjusting pricing strategies, to ensure financial sustainability. Our pragmatic approach equips clients with the tools to navigate these challenges effectively.
Engaging Employees
Effective communication with employees is crucial during the transition to the real living wage. Engage your workforce in transparent dialogue, explaining the rationale behind the decision and addressing any concerns they may have. Fostering a culture of inclusivity and transparency is key to a smooth transition.
Moving Forward with Confidence
Embracing the real living wage reflects a commitment to fair and equitable employment practices. At Dixcart UK, we’re dedicated to supporting employers as they navigate this transition. By aligning values with actions, our clients can enhance their reputation and cultivate a motivated workforce.
In conclusion, adopting the real living wage requires careful consideration and planning. At Dixcart UK, we stand ready to assist employers in making informed decisions that promote fairness and prosperity for all stakeholders.
To find out how we can help your business, or if you have any questions regarding the transitioning to the real living wage, please contact us.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
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Employment Law Case Update – May 2024
Employment,
24th May 2024
Employment Law
This month’s update includes some interesting cases examining an injunction in a would-be whistleblowing case and the effective maintenance of the confidentiality of the documents to be disclosed, the specifics of case law surrounding the discrimination elements of two quite different claims, and a complex case distinguishing worker status from volunteer status where remuneration is involved.
Injunction: Employee cannot use tribunal to bring stolen documents into public domain
Equality Act: Not up to Tribunal not to make a finding of liability against named respondents when the statutory test is met
Worker Status: ‘Volunteer’ Coastal Rescue Officer was a worker when carrying out remunerated activities
Injunction: Employee cannot use tribunal to bring stolen documents into public domain
In Payone GmbH v Logo [2024] EWHC 981 (KB) the King’s Bench Division granted the claimant employer a final injunction against the defendant employee, restraining him from making further use of documents which he had misappropriated during his employment (the confidential documents). The claimant was a payment services provider, incorporated and domiciled in Germany. The defendant, a self-proclaimed ‘whistleblower’, had made substantial disclosures of the confidential documents, which he had also deployed in Employment Tribunal (ET) proceedings against the claimant. Judgment had been entered for the claimant on its claims for conversion, breach of contract and equitable breach of confidence.
In the present proceedings, the main issue was whether the defendant should be restrained by final injunction from making further use of the confidential documents, even though some (or all) of it had (according to the claimant) entered the ‘public domain’ through the ET proceedings.
The court held, among other things, that: (i) the confidential information had not lost the quality of confidence; (ii) save insofar as express references were made to it in the ET judgment, neither the information, nor documents including it, had entered the ‘public domain’, so as to defeat the claimant’s entitlement to restrain further disclosure consistently with free speech considerations; (iii) the nature of the references in the ET judgment did not undermine confidentiality in the documents themselves; (iv) the protection of the claimant’s rights to confidentiality and property was a legitimate aim; (v) to the extent that open justice was engaged, it was substantially outweighed by the interests of the claimant and affected third parties, who would suffer prejudice if the information were made public; and (vi) in circumstances where the claimant had applied for default judgment on its only claim in the proceedings, namely for a final injunction, and where the judge had struck out a witness statement put forward by the defendant as a defence, there could be no question of the defendant maintaining any defence to the claimant’s claim; and (vii) legally, the balance of interests fell firmly in favour of maintaining confidentiality.
The court rejected the proposition that an employer whose confidential documents had effectively been stolen and then deployed against it in the ET waived rights of confidence in those documents against the employee unless the employer applied for extensive restrictions, including a private hearing in the ET.
Disability Discrimination: Tribunal did not properly consider discriminatory element of claim
In Z v Y [2024] EAT 63, the Employment Appeal Tribunal (EAT) allowed the claimant’s appeal against the decision of the Employment Tribunal (ET) who ruled that the claimant was constructively unfairly dismissed by the respondent, but that her claims under the Equality Act 2010 had been brought out of time and were to be dismissed. The claimant’s claim had included a complaint of discriminatory constructive dismissal but clarification of her case focused on the allegations of prohibited conduct. The claimant contended, among other things, that: (i) it was perverse for the ET to find that the claim did not include a case of discriminatory dismissal; and (ii) the ET erred in its approach to the determination of whether there had been a continuing act, considering each of the found instances of discrimination in isolation, when it ought to have adopted a holistic approach.
The EAT held, among other things, that: (i) the ET had erred in failing to determine the claim of discriminatory constructive dismissal, which was part of the pleaded case before it; (ii) the list of issues had not replaced the pleaded claim; and (iii) the ET had been wrong to slavishly stick to the list. Consequently, the claim of discriminatory constructive dismissal and the issue had been remitted to the ET for reconsideration along with the issue of remedy.
Equality Act: Not up to Tribunal not to make a finding of liability against named respondents when the statutory test is met
In Baldwin v (1) Cleves School, (2) Hodges, (3) Miller [2024] EAT 66, the Employment Tribunal had found the respondent employer liable for acts carried out by the two individual respondents. However, it dismissed separate claims against the individual respondents brought under section 110 of the Equality Act 2010, on the basis that it found their acts were misguided attempts to address a complex situation.
The Employment Appeal Tribunal held that there had been an error of law because:
a contravention of s.110 Equality Act 2010 arises if A is an employee, A does a discriminatory act in the course of their employment, that act amounts to a contravention of Equality Act 2010 by the employer and none of the express exceptions in s.110 apply.
s.110 confers no discretion on an employment tribunal not to find a contravention of that section if the conditions for individual liability under it are met (as they were in this case).
Worker Status: ‘Volunteer’ Coastal Rescue Officer was a worker when carrying out remunerated activities
In Groom v Maritime and Coastguard Agency [2024] EAT 21, the respondent, the Maritime and Coastguard Agency (MCA), runs the Coastguard Rescue Services (CRS) which is made up of 325 Coastguard Rescue Teams. There are approximately 108 employed staff and 3500 volunteer Coastal Rescue Officers (CRO) and Station Officers (SO). Generally, an individual is understood to be a volunteer if they are not obliged to work but agree to perform work for which they are not paid. Without consideration there can be no contract (whether as an employee or as a worker). However, volunteers may be reimbursed expenses that they have genuinely incurred with losing their status as a volunteer. As a volunteer, an individual can come and go as they please. Volunteer roles can often be ill-defined and, if some consideration can be found, an individual may find that their ‘voluntary’ role amounts to one as a ‘worker’ or an ‘employee’, thus acquiring statutory employment rights
The claimant was a CRO and then an SO. Documents that governed the relationship between the claimant and respondent included a Volunteer Handbook, a Volunteer Commitment, a Code of Conduct and a document headed ‘Coastguard Rescue Service—Detail Coastguard Rescue Officer Remuneration’. These documents explain that, while there is no obligation to claim remuneration, it is possible to do so for time, travel and expenses associated with specific activities.
The claimant was invited to a disciplinary hearing. His membership of the CRS was terminated and he was issued with a P45. The claimant brought employment tribunal proceedings claiming that he was a worker and should have been afforded the right to be accompanied at the disciplinary hearing.
The employment tribunal decided that the claimant was not a worker because there was no contract between himself and the respondent and the relationship was genuinely voluntary. Its reasoning included that:
the agreement was described as a voluntary agreement;
there was no ‘automatic’ remuneration for any activity and many CROs never claim;
there were a number of activities for which remuneration was not payable at all, participation in which is only explicable in the context of volunteering;
the degree of control did not appear to be particularly significant;
the fact that an HMRC investigation concluded CROs were not workers was ‘clearly significant’.
The claimant appealed to the EAT.
The EAT allowed the appeal. It held that:
the tribunal had erred in finding that there was no contract at all between the parties, particularly taking into account the right to remuneration for particular activities;
there was no dispute between the parties that the claimant was obliged to perform services personally and that the MCA was not a client or customer of a business carried on by the claimant;
the claimant was therefore a worker when he undertook activities in respect of which he was entitled to remuneration;
the question of worker status in relation to attendance at non-remunerated activities remains an open question, which the parties may argue in the tribunal.
The EAT’s more detailed reasoning on the entitlement to remuneration and the existence of a contract included, among other things, that although use of the word volunteer may suggest an absence of intention to create legal relations, ‘volunteer’ is not a term of art, the legal status of all volunteers is not necessarily the same and ultimately, whether or not there is a contract is determined from the documents as a whole. On the documents in this case, the tribunal erred in failing to find that when the claimant attended an activity (at least one attracting remuneration) there was a contract under which he provided services to the respondent.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.