This month’s roundup highlights several key decisions with important implications. When considering grievances, it’s useful to consider the wider context of the situation even if a person doesn’t explicitly allege race discrimination. While external HR consultants may act as agents of an employer during investigations, they are not co-liable for dismissal decisions. Vicarious liability for torts committed by employees before a TUPE transfer does not pass to the transferee. Lastly, we have new guidance on how tribunals should handle requests for information, emphasizing the need for a principled and detailed approach in assessing relevance and necessity.
Race Discrimination: Tribunals should consider wider context when considering ‘protected acts’
Agency: HR consultants not liable as agents for employer’s decision to dismiss
TUPE: Vicarious liability for acts of employees does not transfer under TUPE
Disclosure: EAT gives guidance on approach to applications for provision of information
Race Discrimination: Tribunals should consider wider context when considering ‘protected acts’
In Kokomane v Boots Management Services [2025] EAT 38, the Claimant, a young black woman, brought a claim of victimisation against the Respondent. The ‘protected acts’ that were alleged included an initial grievance where she claimed she had been treated differently to her colleagues related to an allegation of shouting, a later grievance a few months later claiming that nothing had been done about her original grievance and thirdly alleged bullying. However, her claim did not expressly state that she felt that the difference in treatment was due to her race, nor did she suggest that she attributed the Respondent’s treatment of her to her race. The sole ground of appeal was that the ET had erred in law in its decision that the Claimant’s grievances and grievance hearing did not amount to protected acts.
A ‘protected act’ means taking action related to discrimination law. This includes: making a complaint of discrimination or harassment, supporting someone else’s complaint and gathering information that might lead to a complaint.
The EAT held that the tribunal had used too narrow a definition of what could amount to a protected act and did not analyse in sufficient detail the context in which the complaint relied upon as a protected act was made. The allegation relied on as a ‘protected act’ need not state explicitly that an act of discrimination has occurred. It is only necessary to assert facts which are capable in law of amounting to an act of discrimination. In particular, part of the context is the way in which the Respondent would have understood the complaint. Here, where the employer would know that the Claimant was the only black employee and the complaint was specifically about difference in treatment, those were matters that should form part of the evidential consideration. It was not clear that in dealing with the Claimant’s grievance and appeal hearings the tribunal approached that evidence with that contextual approach in mind.
The advice given was, that if the protected act is not a straightforward express discrimination allegation, tribunals should ask themselves the question: What would the Respondent have understood the complaint to mean from the information provided by the Claimant as part of her complaint? To consider it this way means that factors which were known to the Respondent would also be included, and thus the fact that the Claimant was the only black employee, that her grievance letter alleged difference in treatment, and the discussions at the grievance meeting which included negative reference to shouting as a black women were pertinent to the consideration of the protected act.
Agency: HR consultants not liable as agents for employer’s decision to dismiss
In Handa v Station Hotel (Newcastle) Ltd and others [2025] EWHC 538 (Admin), the EAT has held that a tribunal erred when it held that it was not arguable that two HR consultants, one appointed to undertake an investigation into grievances and the other to conduct a disciplinary hearing, were acting as an employer’s agents when undertaking those functions.
The EAT did not see why someone retained to carry out an employment-related procedure, such as a grievance or disciplinary investigation, could not be regarded as the employer’s agent while doing so. The fact that they were an external appointee, who carried out their duties (including writing any report) independently, would not preclude them from being regarded as the employer’s agent in relation to their conduct while carrying out their remits.
However, the EAT went on to find that there was no arguable basis for a conclusion that, because the employer relied on the investigation processes carried out by the HR consultants in support of its case that it had fairly dismissed an employee, those HR consultants were co-liable for the dismissal as the employer’s agents. Similarly, the fact that the HR consultants’ activities and reports were essential links in the chain of causation leading to the decision to dismiss could not arguably provide grounds for imposing liability on them for the dismissal decision, on the basis of agency.
TUPE: Vicarious liability for acts of employees does not transfer under TUPE
In ABC v Huntercombe (No 12) Ltd and others [2025] EWHC 1000 (KB), the High Court has held that a transferor’s vicarious liability for torts committed by its employees prior to a transfer does not pass to the transferee under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE).
The Claimant sought damages for injuries suffered while she was an in-patient at a hospital owned and operated by the first defendant. The Claimant argued that the First Defendant was vicariously liable for the acts of two of its employees. However, a subsequent TUPE transfer of the First Defendant’s business led to those employees becoming employed by the Second Defendant. The court was asked to determine, as a preliminary issue, whether any vicarious liability of the First Defendant to the Claimant for the alleged torts of its employees transferred to the Second Defendant under TUPE. If it found that vicarious liability did transfer, the court was also asked whether any indemnity that the First Defendant may have under its public liability insurance in respect of the claim also transferred.
On review of relevant authorities and having reminded itself that TUPE is intended to protect employees in the event of a change of employer (in particular, to ensure that their rights are safeguarded), the court held that if a transferor’s liability is to transfer, the connection between the liability and the contract must be direct, in the sense of being a liability the transferor has to an employee. If a transferor has a vested (or contingent) right against a third party which arises purely because of such a liability, that right would also transfer. In this case, any liability of the First Defendant was owed to the Claimant, not to its employees. The relevant direct liability was that of the employees to the Claimant. It followed that the required connection was too remote. If the court was wrong, and liability transferred from the First to the Second Defendant, the First Defendant’s right to claim on an insurance policy would also have transferred.
In reaching its decision, the court held that Doane v Wimbledon Football Club [2007] 12 WLUK 2, the only case to hold that the vicarious liability of a transferor transferred because it arose in connection with the transferred contract, should not be followed.
Disclosure: EAT gives guidance on approach to applications for provision of information
In Bari v Richmond and Wandsworth Councils [2025] EAT 54, the EAT has held that an employment tribunal did not take a sufficiently principled and reasoned approach when considering and deciding a claimant’s application for the provision of information.
The claimant, Mr Bari, is disabled by reason of arthritis and brought claims under the Equality Act 2010. During tribunal proceedings, he emailed the respondents requesting answers to eight detailed questions regarding disabled employees and adjustments made for them. Many of the questions had numerous parts to them. The respondents resisted responding to the questions, and Mr Bari applied to the tribunal for an order requiring the provision of the requested information, which he stated would assist the tribunal. He subsequently wrote that he was applying for an order for specific disclosure or inspection, although he did not request sight of any particular documents. An employment judge refused his applications, noting that it was unclear how the information would assist the tribunal. Mr Bari appealed.
The EAT considered the relevant authorities at length. It observed that the core test is whether disclosure is necessary for fairly disposing of the proceedings. The relevance test is a facet of that overall test and a logical starting place when considering an application. A tribunal must consider relevance in the sense of something being likely to assist or detract from either party’s case, or an issue in the case. A request for information or answers to questions is conceptually distinct from a request for disclosure of documents. However, recent authorities (for example, Essex County Council v Jarrett [2015] UKEAT/0087/15) have confirmed that tribunals can order the provision of information. When considering such applications, a tribunal must take a principled and reasoned approach in the same way as it would for an application for disclosure of documents. That said, when a claimant’s request concerns “pure information”, rather than disclosure of an existing document, the task involved in complying with any order may be practically very different (for example, considerable work may be needed to collate the information).
In Mr Bari’s case, the tribunal had erred in seemingly adopting the approach initially articulated by him (namely, whether disclosure of the information would assist the tribunal). It should have provided a sufficiently reasoned decision indicating whether his application was granted or refused by reference to the three broad groups his questions fell into, including consideration of the information’s relevance to each of the claims he had brought.
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.
Significant changes in UK employment law have already come into force in 2025...
News & Views
Employment Law General Update – May 2025
Anne-Marie Pavitt,
27th May 2025
Employment Law
This month we have several key updates affecting employers and HR professionals. A recent ACAS-commissioned survey found that 35% of British employers believe AI will boost productivity, prompting calls for responsible adoption, staff engagement, and clear workplace AI policies. The Department for Business and Trade has issued guidance on new regulations affecting the remuneration of Directors, which streamline reporting requirements for UK quoted companies and clarify new rules on director pay and policy compliance. Lastly, the EHRC has issued an interim update in response to the Supreme Court’s decision in For Women Scotland v The Scottish Ministers, signalling forthcoming revisions to its guidance on the legal definition of sex and urging employers to stay informed and seek legal advice as needed.
ACAS: Survey shows 35% of employers believe AI will increase workplace productivity
Directors’ remuneration: Guidance note to Companies (Directors’ Remuneration and Audit) (Amendment) Regulations 2025
Legal Definition: EHRC publishes interim update on practical implications of the UK Supreme Court judgment about the meaning of ‘sex’
ACAS: Survey shows 35% of employers believe AI will increase workplace productivity
A survey conducted by YouGov on behalf of ACAS has revealed that over a third (35%) of employers in Britain believe that AI will increase productivity in the workplace. This finding suggests that many businesses are optimistic about the potential benefits of AI, with them also expecting it to provide a competitive edge (12%), increase knowledge (11%) and enable more work to be done with fewer staff (11%).
ACAS Chief Executive, Niall Mackenzie, notes that while AI has the potential to empower workers and support the delivery of different workplace tasks, it is crucial that businesses use it responsibly. Early, proactive discussions with staff, trade unions and other worker representatives should address the potential implications of AI and ensure its adoption is well-informed. These can highlight how AI will improve workers’ roles, reassure them that they are valued and confirm that human involvement will still be needed. Employers should develop clear policies regarding the use of AI at work.
Employers are reminded that AI is not perfect, and outputs should be checked for accuracy, tone and bias. AI should be cited when used. Employers’ data privacy policies will apply for the use of AI. Workers should be careful when entering business sensitive or personal information into public tools.
Directors’ remuneration: Guidance note to Companies (Directors’ Remuneration and Audit) (Amendment) Regulations 2025
The Department for Business and Trade has published a guidance note, dated April 2025, to the Companies (Directors’ Remuneration and Audit) (Amendment) Regulations 2025 (SI 2025/439). The regulations, which come into force on 11 May 2025, remove certain over-lapping requirements from the directors’ remuneration reporting framework for UK quoted companies.
The guidance note clarifies when the changes will apply. It includes:
Directors’ remuneration report. Changes will apply to the first remuneration report published for a financial year beginning on or after 11 May 2025.
Directors’ remuneration policy. Changes will apply to any new policies approved by shareholders on or after 11 May 2025. Policies approved before this date will continue in force until the company receives shareholder approval for a new policy. A policy prepared in accordance with the pre-11 May 2025 requirements that is not due to be put to shareholders for approval until after that date, should ideally be amended to fit with the new regulations before the shareholder vote.
Payments to directors outside of directors’ remuneration policy. From 11 May 2025, any proposed payments to directors that fall outside the existing remuneration policy must be made in accordance with the revised procedure for shareholder approval of such payments set out in the regulations.
Reporting pay of a Deputy CEO that is not a director of the company. From 11 May 2025, any such non-director Deputy CEO will no longer need to be paid in accordance with an approved directors’ remuneration policy. The directors’ remuneration report for a financial year beginning before 11 May 2025 will need to include the pay of any such Deputy CEO for that whole financial year.
Changes to paragraph 19 of Schedule 8 to the Large and Medium-sized Companies and Groups (Accounts and Reports) Regulations 2008. The regulations remove the requirement to report a comparison of the annual percentage change in each director’s pay with that in employee pay. Paragraphs 19A to G of Schedule 8 require equivalent and more detailed information about the relationship between CEO pay and wider employee pay.
Website publication of the directors’ remuneration report and information about the shareholder vote on the directors’ remuneration policy. These requirements will no longer apply from 11 May 2025.
Legal Definition: EHRC publishes interim update on practical implications of the UK Supreme Court judgment about the meaning of ‘sex’
Following the UK Supreme Court judgment in For Women Scotland v The Scottish Ministers [2025] UKSC 16, the Equality and Human Rights Commission (EHRC) has published a statement that it is working to update its statutory and non-statutory guidance.
Given that many people will have questions about the judgment and what it means for them so the updated guidance will provide further clarity. In the meantime, they have published an ‘ECHR interim update’ which is intended to highlight the main consequences of the judgment, with a caution that employers and other duty-bearers must follow the law and should take appropriate specialist legal advice where necessary.
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.
Significant changes in UK employment law have already come into force in 2025...
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Key Changes to Unfair Dismissal in the UK: What Employers Need to Know
Anne-Marie Pavitt,
13th May 2025
Employment Law
The UK government is set to introduce significant changes to the unfair dismissal regime under the Employment Rights Bill. These changes are expected to have a profound impact on both employers and employees. Here’s a detailed look at the key areas and their implications.
Day One Right to Unfair Dismissal Claims
One of the most notable changes is the introduction of the right to bring an unfair dismissal claim from the first day of employment. Currently, employees need to have two years of continuous service to be eligible to make such a claim. The changes that are being proposed introduce a ‘day one’ right for employees not to be unfairly dismissed that would come into force “no sooner than” Autumn 2026. This shift aims to provide greater protection for employees but will require employers to be more diligent from the outset.
What are the Implications for Employers?
We understand at present that the changes will be subject to a new “initial period of employment” (IPE) which will essentially act as a statutory probationary period, allowing employers to use a modified, “lighter-touch” process to dismiss employees for reasons like capability or conduct. However, proposals state employers must still meet with employees to discuss performance issues, and employees will have the right to be accompanied by a colleague or trade union representative.
Employers will therefore need to ensure that their dismissal processes are fair and well-documented from day one.
Changes to Compensation
The government is also considering changes to the compensation regime for unfair dismissal claims made within the initial period of employment. Currently, the maximum compensatory award is up to £118,223 or 52 weeks’ pay, whichever is lower. The new proposals suggest that this cap could be reduced for claims made during the initial period.
Employers will need to adjust their financial planning to account for potential changes in compensation awards. Understanding the new compensation limits will also be crucial for managing the financial risks associated with unfair dismissal claims.
Pre-Employment Claims
The new legislation will supposedly bar claims from individuals who have not yet started their employment, except in cases where the dismissal is for a specified reason, such as pregnancy or the assertion of a statutory right. This change would provide clearer guidelines on the rights of prospective employees, reducing the risk of pre-employment claims.
Impact on Employment Tribunals
With the removal of the two-year qualifying period plus a proposed extension of the time limit for employment tribunal claims including unfair dismissal to six months (up from the current three months), there is an expectation of a great increase in the number of unfair dismissal claims being issued. Employment tribunals are already experiencing high caseloads, and this change could exacerbate the situation. Tribunal delays may impact the resolution of disputes, so employers should plan accordingly, be prepared for a potential increase in litigation and where appropriate consider alternative dispute resolution methods.
Conclusion
The upcoming changes to the unfair dismissal regime will represent a significant shift in employment law. Employers will need to adapt their policies and practices to ensure compliance and mitigate risks. Staying informed and seeking legal advice where necessary will be crucial in navigating these changes effectively.
Further Information
If you would like more guidance on how these changes could affect your organisation, or assistance in updating your employment practices, please contact Anne-Marie 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.
Significant changes in UK employment law have already come into force in 2025...
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UK Employment Law Changes to Expect in 2025 and Beyond
Anne-Marie Pavitt,
24th April 2025
Employment Law
As we progress through 2025, significant changes in UK employment law have already come into force or are on the horizon, particularly in relation to wage reform and enhanced employee rights. In this article we set out a summary of the most important changes.
Wages and increased statutory entitlements
A major change for some employers in 2025 will be the increase in the rates of the National Minimum Wage and National Living Wage that came in on 1 April 2025. National Living Wage for over 21’s increased to £12.21, National Minimum Wage for 18–20-year-olds increased to £10 and National Minimum Wage for 16–17-year- olds and Apprentice Rate increased to £7.55. Employers will need to increase pay where necessary to ensure compliance which could mean there is less of a distinction between junior and senior staff.
Other statutory rates that rose on 6 April 2025 include Statutory Sick Pay (increased to £118.75 per week) Statutory Maternity Pay and other family related leave pay (increased to £187.18 per week) and the Lower Earnings Limit (increased to £125 per week).
Neonatal care leave and pay
This is a new right for employees which came into force on 6 April 2025 and gives parents a right to 12 weeks’ leave and pay when their baby requires neonatal care if they meet certain eligibility criteria. The Statutory Neonatal Care Pay (SNCP) will be paid at the initial statutory rate of 187.18 or 90% of earnings, if lower. As with all statutory leave, employers have the option of topping up SNCP with enhanced pay for all or part of the leave period, provided of course the discretion an employer uses to top up statutory pay is applied fairly and consistently to all applicable staff.
Paternity leave for bereaved partners
The Paternity Leave (Bereavement) Act 2024 was passed in May last year and is expected to come into force shortly. It provides a day one right for bereaved partners to take paternity leave when the mother (or a person that a child is placed, or expected to be placed, with for adoption) dies. Additionally, increasing the right to paternity leave in bereavement cases from two weeks to 52 weeks and implementing additional redundancy protection for bereaved partners (as with maternity leave) has also been discussed although not yet confirmed. Given these changes on the horizon, employers may wish to consider how they will introduce and implement a policy to cover this entitlement once the specifics have been confirmed.
Significant changes contained in the Employment Rights Bill
The Employment Rights Bill 2024-25 (the Bill) was introduced in the House of Commons on 10 October 2024 and received its first reading in the House of Lords on 14 March 2025. It is now progressing through the House of Lords. Accompanying this Bill, the government released a ‘Next Steps to Make Work Pay’ document, outlining plans for future reform. Some of the key changes may include:
Enhanced Unfair Dismissal Rights – a ‘day one’ right for employees not to be unfairly dismissed (rather than a qualifying period of 2 years’ service) “no sooner than” Autumn 2026. The legislation will extend the circumstances in which employers may fairly dismiss employees who are in a probationary period (which will be called an ‘initial period of employment’). The length of the statutory probationary period to which these provisions will apply has not yet been fixed but the Government has indicated that it favours a period of six to nine months.
Increasing Employment Tribunal claim time limits – from three months to six months (for almost all claims).
Expanding the right to receive Statutory Sick Pay – making it a “day one” right and removing the lower earnings limit when calculating eligibility.
Strengthening the right to request flexible working – employers could only refuse requests if they have a “reasonable” basis to do so, can state the specific ground(s) for refusal and explain why the refusal is reasonable.
Expanding family rights – such as making paternity leave and unpaid parental leave “day one” rights, giving unpaid bereavement leave, and greater protections for pregnant women, maternity leavers and those who return to work after maternity leave.
Strengthening sexual harassment protections – employers must take all reasonable steps to prevent sexual harassment and will be liable for third party harassment of employees in respect of all types of harassment. Also, any disclosures about sexual harassment will be classified as “protected disclosures”, granting those who report protection under the whistleblowing regime.
Trade union reforms – making it easier for unions to be recognised by law, giving unions the right to access workplace and providing more time for union representatives to do their jobs.
Reforms to collective consultation – the current threshold of 20 or more employees at a single establishment may be lowered to trigger collective consultation across an entire company, meaning more situations will require consultation with employees. Employment tribunals may also have the ability to significantly increase or decrease compensation awards for employers who fail to adequately consult with employees during a redundancy process. There are also plans to close the maritime redundancy notification loophole so that operators providing regular services in British ports cannot avoid collective consultation.
End “fire and rehire” practices – dismissals for refusing to agree to a change to contract terms would be automatically unfair (unless the employer genuinely has no other choice).
Reforms to zero hours contracts – giving rights to guaranteed hours, fair notice of shifts and compensation for shifts that are cancelled or end early.
The government expects that most changes set out in the Bill will not come in until 2026. In the meantime, it is undertaking various consultations on the proposed reforms and says it will provide regulations, guidance and codes of practice to assist with implementing the changes when the time comes. Dixcart Legal will of course keep you updated on these reforms as the Bill progresses.
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.
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.
The UK government is set to introduce significant changes to the unfair dismissal regime...
News & Views
Employment Law Case Update – April 2025
Anne-Marie Pavitt,
23rd April 2025
Employment Law
A short collection of employment law case updates this month. We look at when a whistleblowing claim may be relevant, how a contract can be inside IR35 despite major factors which might otherwise land it outside IR35, and whether union business is carried out ‘within the course of employment’ and therefore whether behaviour at such times is capable of being caught by the Equality Act.
Whistleblowing: External job applicant could not bring whistleblowing detriment claim
IR35: Hypothetical contract was one of employment despite lack of notice period or obligation to provide work
Harassment: Racial harassment of employed union official during discussion about union fees was not committed “in the course of employment”
Whistleblowing: External job applicant could not bring whistleblowing detriment claim
In Sullivan v Isle of Wight Council [2025] EWCA Civ 379, the Court of Appeal has held that the exclusion of job applicants (other than those applying for jobs in the NHS) from the whistleblowing detriment provisions in the Employment Rights Act 1996 is compatible with Article 14, read with Article 10, of the European Convention on Human Rights (ECHR).
In this case, after unsuccessfully applying for two jobs with the respondent, the claimant complained about the interviewers’ conduct. The respondent investigated and found the complaint to be unsubstantiated. However, in breach of its complaints policy, it failed to offer the claimant a further review. The claimant issued tribunal proceedings, arguing that this failure subjected her to a detriment because she had made a protected disclosure and that protection from detriment for whistleblowing should be extended to include job applicants.
Article 14 of the ECHR sets out grounds on which discrimination affecting the rights and freedoms set out in the ECHR is prohibited. There was no dispute that Article 14 applied to the subject matter of the claim which concerned the exercise of the Article 10 right to freedom of expression (in particular, the right to impart information). Unlike the tribunal and EAT, the Court of Appeal held that treatment of a person on the ground that they were a job applicant was capable of being treatment on the ground of some “other status”, one of the grounds on which Article 14 prohibits discrimination.
However, the court agreed with the tribunal and EAT that, as a job applicant, the claimant was not in a materially analogous position to either workers or applicants for NHS posts who were protected by the whistleblowing detriment provisions. The court also held that any difference in treatment would have been objectively justified because it pursued a legitimate aim, and the means adopted to achieve that aim were appropriate and proportionate. Finally, the court agreed with the EAT that the alleged detriment suffered by the claimant had not been connected to her application for a job with the respondent.
IR35: Hypothetical contract was one of employment despite lack of notice period or obligation to provide work
In George Mantides Ltd v HMRC [2025] UKUT 124,the Upper Tribunal (UT) has held that arrangements for providing a doctor’s services to a hospital would have been an employment contract, had the doctor contracted directly (hypothetical contract) rather than through a personal service company (taxpayer), rejecting the taxpayer’s appeal against HMRC’s determination that its income was liable to income tax and national insurance contributions under the intermediaries legislation (IR35). In doing so, the tribunal remade the decision of the First-tier Tribunal (FTT) due to its errors of law in reaching the same conclusion.
The UT’s decision concerned the consequences, following HMRC v Professional Game Match Officials Ltd [2024] UKSC 29, of those errors (as determined in a previous Upper Tribunal decision).
In rejecting the taxpayer’s appeal, the UT reasoned that:
It was inappropriate to compare the hypothetical contract with one for providing the doctor’s services to another hospital that the FTT had found constituted self-employment, despite both hypothetical contacts being (ignoring the FTT’s errors) similar.
The FTT’s error, that the hypothetical contract contained an obligation to provide work (either alone or combined with its other error, concerning a one-week notice period), might have made a difference to its decision, but those factors (which related to the mutuality of obligation’s strength at stage three of the RMC test) were not particularly strong pointers towards self-employment, in the context of a short temporary engagement.
It had to consider the terms and circumstances of the hypothetical contract, including that it would have been for personal service, without a right of substitution and with a sufficient framework of control and mutuality of obligation (in the sense of a wage-work bargain). Other factors were either neutral (degree of actual control) or pointed only weakly to employment (use of equipment and staff and some integration) or self-employment (costs, including insurance, incurred and lack of employee benefits).
The decision might seem surprising, given the importance the FTT placed on the notice and work obligation in distinguishing this contract from the doctor’s other contract on similar terms, but the FTT’s decision on that other contract was not appealed (in time) to the UT.
Harassment: Racial harassment of employed union official during discussion about union fees was not committed “in the course of employment”
In Campbell v Sheffield Teaching North Hospitals NHS Foundation Trust [2025] EAT 42,the EAT has upheld an employment tribunal decision that an NHS Trust was not liable for a racist comment by one of its employees, Mr Hammond, who is white, calling the claimant, Mr Campbell, who is black, a “fucking monkey”.
Mr Campbell, a Trust employee, was Branch Secretary of UNISON. Mr Hammond, another Trust employee, had sought to terminate his UNISON membership, but his subscriptions were still being deducted. He went to Mr Campbell’s office during a break from work to ask for a refund. When Mr Campbell refused, Mr Hammond became frustrated and made the racist comment.
The EAT accepted that, when considering whether Mr Hammond was acting “in the course of employment” for the purposes of section 109(1) of the Equality Act 2010 (EqA 2010), the tribunal had correctly taken the whole context into account. The weight attributed to various factors was a matter for the tribunal and there was no error in its approach. It had noted that there were several connections between the incident and Mr Hammond’s employment by the Trust: it took place during Mr Hammond’s working day, in an office close to his working area, and it related to union membership that entitled him to the support of a union recognised by the Trust and in which Mr Campbell had an important role. However, Mr Hammond’s membership of UNISON was a personal choice and the conversation related to a personal dispute with UNISON.
In the alternative, the EAT also found that the tribunal had not erred in finding that the Trust had taken all reasonable steps to prevent harassment for the purposes of section 109(4) of the EqA 2010. Mr Hammond had attended an induction session emphasising the Trust’s core values, he underwent annual performance assessment which considered whether he acted in accordance with those values, the values were displayed on posters, and he undertook mandatory equality and diversity training, most recently a few weeks before the incident. The two-stage approach advocated in Canniffe v East Riding of Yorkshire Council UKEAT/1035/98, requiring a tribunal to consider any steps taken and whether there were other reasonable steps which could have been taken, was distinguished. In Canniffe, the employer had taken some steps, but in the present case the tribunal had been entitled to conclude that the Trust had taken all reasonable steps.
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.
The UK government is set to introduce significant changes to the unfair dismissal regime...
News & Views
Employment Law General Update – April 2025
Anne-Marie Pavitt,
23rd April 2025
Employment Law
Lots of updates in this month’s newsletter. New entitlements came into force at the beginning of the month with regard to neonatal care leave and statutory pay. Whilst a survey has found LGBTQ+ employees feel unsupported by their HR teams, the government is busy investigating race and disability rights issues and asking for your help with this. A survey has been carried out looking at workplace abuse and changing trends in employment and there are some important changes to immigration and sponsorship fees and guidance from the ICO about storage of personal data.
Parental Leave & Pay: Government guidance on statutory neonatal care leave and pay published
Equality: Study finds nearly half of LGBTQ+ employees feel unsupported by HR
Employment Survey: Survey highlights workplace abuse and changing trends in employment
Immigration: Changes to the definition of “small sponsor” will impact some sponsorship fees
Data: ICO publishes new guidance on anonymisation and pseudonymisation
Parental Leave & Pay: Government guidance on statutory neonatal care leave and pay published
New statutory entitlements to neonatal care leave (NCL) and neonatal care pay (SNCP) came into force on 6 April 2025. On 6 April 2025, the government published a suite of new guidance for employees and employers on NCL and SNCP:
Neonatal Care Pay and Leave. A guide for employees explaining entitlement, eligibility, how to claim, employment rights and how to cancel NCL or SNCP.
Statutory Neonatal Care Pay and Leave: employer guide. A guide for employers explaining entitlement, eligibility, employer record-keeping requirements, the financial assistance available to employers to pay SNCP, and the information an employee must provide, their employment rights and how they can cancel NCL or SNCP.
How different employment types affect Statutory Neonatal Care Pay. A guide explaining the different SNCP rules that apply to different types of employees and workers, including agency workers, directors and employees with more than one job with the same employer, or with more than one employer.
Equality: Study finds nearly half of LGBTQ+ employees feel unsupported by HR
On 14 April, website People Management reported that a study carried out by Pride in Leadership, a UK-based LGBTQ+ Leaders’ Community, has revealed that nearly half of LGBTQ+ employees feel unsupported by their employers’ HR departments when facing LGBTQ+-related issues. The survey of 1,017 LGBTQ+ individuals found that 42% of respondents felt that their concerns were “brushed off” by HR, highlighting a significant gap in support and understanding.
The study identified several barriers to LGBTQ+ career advancement, including a lack of inclusive workplace policies, experiences of discrimination and biased recruitment practices. Among the respondents, 85% reported that they have encountered significant obstacles linked to their identity, with a lack of representation in leadership being a major concern. Only 15% of respondents felt that their workplace was a safe space to share their identity.
To address these issues, the study calls for HR departments to take a more proactive approach to create a supportive and inclusive work environment. This includes providing training on LGBTQ+-specific issues, developing and implementing inclusive policies, and promoting diversity and representation in leadership. It also urges employers to actively work to eliminate biased recruitment practices and ensure that hiring processes are transparent and fair.
Equality (Race and Disability) Bill: Government issues equality law call for evidence
On 7 April 2025, the Office for Equality and Opportunity published a call for evidence on equality law. The wide-ranging call for evidence seeks views and evidence on areas the government intends to address in the forthcoming Equality (Race and Disability) Bill. These include extending the equal pay provisions in the Equality Act 2010 (EqA 2010) to race and disability, ensuring that employers cannot outsource services to avoid paying equal pay, improving enforcement of equal pay by setting up a new Equal Pay Regulatory and Enforcement Unit and improving pay transparency by adopting measures similar to those in the Pay Transparency Directive (2023/970/EU).
The government also plans to bring section 14 of the EqA 2010 into force, allowing direct discrimination claims for combined or dual discrimination to be brought in the employment tribunal. It seeks views and evidence on the prevalence of combined discrimination, including how levels and patterns of combined discrimination may differ across different situations, sectors and regions, and the effectiveness of the remedies available. Evidence is also sought in relation to the prevalence of combined discrimination in relation to indirect discrimination, harassment, victimisation, and the protected characteristics of pregnancy and maternity and marriage and civil partnership, which are not currently covered by section 14.
The Employment Rights Bill will introduce the power to make regulations specifying the steps employers must take to prevent workplace sexual harassment. To assist in the drafting of those regulations, evidence is sought on measures employers can take that have proved effective in practice to reduce or prevent workplace sexual harassment. Evidence is also requested in order to assist the government in determining whether protection against sexual harassment should be extended to volunteers.
Views and evidence are also sought on the extent to which the public sector equality duty is complied with by non-public bodies exercising public functions and the effectiveness of the implementation of the socio-economic duty in Scotland and Wales, with a view to commencing the duty in England.
Employment Survey: Survey highlights workplace abuse and changing trends in employment
A survey conducted by academics from Cardiff University, UCL, Nuffield College, Oxford, and the University of Surrey, has highlighted the prevalence of workplace abuse in the UK. The Skills and Employment Survey, which is conducted every six years, found that one in seven employees has experienced some form of workplace abuse, including bullying, violence, and sexual harassment. The survey revealed that some occupations, such as nursing (32%) and teaching (28%), are at higher risk of abuse, with women and night workers also being more vulnerable.
The survey also highlighted the impact of the pandemic on the way we work, with over half of workers using spaces intended for other purposes to carry out their work. The adoption of AI is also accelerating, with 24% of those surveyed using AI in their work. However, the use of AI is concentrated in high-paying, high-skill occupations, and is more prevalent among men, younger workers, and those with a degree.
The survey also found that demand for graduate-level qualifications continues to increase, with almost half of workers needing a degree for their current job. However, the number of workers with graduate-level qualifications has declined slightly. The survey also revealed a changing perception of unions, with over a third of employees in non-unionised organisations saying they would vote to establish a union if given the chance.
The researchers warned of the pitfalls and inequality involved in many employees’ working arrangements, particularly with regards to working from home. While some employees are able to create a home office, others are not, and the survey found that money and power play a significant role in determining who is able to work from home and create a comfortable workspace. The researchers called for policy to focus on promoting all forms of flexible working, rather than just working from home, to address these inequalities.
Immigration: Changes to the definition of “small sponsor” will impact some sponsorship fees
Sponsors who are defined as “small” pay lower fees for Skilled Worker and Senior or Specialist Worker sponsor licence applications and the Immigration Skills Charge (ISC) for these workers’ visa applications.
In defining “small” and “large” sponsors, the Home Office relies on the definition of “small” and “large” companies found in the Companies Act 2006 (section 382), which changed on 6 April 2025. (See also, regulation 2 of the Immigration Skills Charge Regulation 2017 (SI 2017/499).)
The definition of a small company is based on the following three thresholds. If a company exceeds at least two of the three thresholds, it will not be a small company:
Number of employees: 50 (this remained unchanged on 6 April 2025).
Turnover: £15 million (changed from £10.2 million on 6 April 2025).
Balance sheet total: £7.5 million (changed from £5.1 million on 6 April 2025).
If, as a result of this change to the definition of “small company”, the sponsor company’s classification has changed from small to large or vice versa, the sponsor must notify the Home Office within 20 working days using the sponsor management system, to comply with their sponsor reporting duties. The sponsor may need to provide evidence, such as recent company accounts and a list of employees.
Data: ICO publishes new guidance on anonymisation and pseudonymisation
The Information Commissioner’s Office (ICO) has published guidance on anonymisation and pseudonymisation. The ICO notes the risks and benefits of sharing personal data, as well as the importance of anonymisation techniques to provide a privacy-friendly alternative to data sharing.
The ICO guidance provides an overview of anonymisation techniques, including their strengths and weaknesses and the suitability of their use in particular situations, including case studies. The main benefits of anonymisation include protecting people’s identities, greater security and improved risk reduction relating to the disclosure or publication of personal data.
The guidance also covers pseudonymisation, which replaces information that directly identifies people. This might include replacing names or identifiers with resource numbers. The ICO reminds organisations that pseudonymisation should not be confused with anonymisation and that pseudonymisation is a way of reducing risk and improving security but not a way of transforming personal data to the extent the law no longer applies.
The guidance also includes advice on accountability and governance measures for organisations and deals with the role that anonymisation plays in the three regimes of data protection law:
General processing under Part 2 of the Data Protection Act 2018 (DPA 2018) and the UK General Data Protection Regulation (2016/679) (UK GDPR).
Law enforcement processing under Part 3 of the DPA 2018.
Intelligence services processing under Part 4 of the DPA 2018.
The guidance sits alongside the ICO data sharing code of practice, which gives practical advice on how to share personal data in line with data protection law. The ICO notes that anonymisation offers an alternative way to use or share data by making sure that people are not identifiable.
Although the guidance is not statutory and there is no penalty for not following the recommendations, the ICO will take it into account when looking into an issue about anonymisation.
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.
The UK government is set to introduce significant changes to the unfair dismissal regime...
News & Views
Employment Law Case Update – March 2025
Anne-Marie Pavitt,
26th March 2025
Employment Law
This month we bring you the usual variety of employment law cases from the start to finish of a role, taking a look at what the Home Office expects of sponsors carrying out their duties, to the discrimination faced by disabled job seekers and how they choose to disclose their disability, to more guidance from the EAT as to the test for worker v employee, and lastly, another look at a case of unfair dismissal.
Immigration: No duty for Home Office to carry out impact assessment before revoking sponsor licence
Disability Discrimination: Claimant who reasonably believed disclosing disability would harm future career entitled to anonymity order
Worker Status: EAT gives guidance on test for worker status
Unfair Dismissal: Court of Appeal finds single incident of touching a pupil was not sufficient to warrant dismissal of school inspector
Immigration: No duty for Home Office to carry out impact assessment before revoking sponsor licence
In R (Prestwick Care Ltd) v Secretary of State for the Home Department and R (Supporting Care Ltd) v Secretary of State for the Home Department [2025] EWCA Civ 184, the Court of Appeal has held that the Home Office is not under a duty to carry out an impact assessment before revoking a sponsor licence. The claimants in the two joint appeals were both care homes which relied heavily on sponsored workers to fill staffing shortages. They had appealed against the Home Office’s decisions to revoke their respective sponsor licences, following a compliance visit to their premises where breaches of sponsor duties were discovered.
The Court of Appeal emphasised that sponsorship is “a privilege not a right” and that there is a “high level of trust placed in the sponsor” to comply with its sponsor duties. Consequently, in addressing the focal point of the joint appeal, the court confirmed that, although the Home Office must conduct their compliance enforcement with procedural fairness, it is not under a duty to carry out an assessment of the impact of revocation on the sponsor, its employees, service users and the wider community, before revoking a sponsor licence. The issue for the Home Office was the impact of the sponsor’s breach of the guidance on the integrity of immigration control, not the consequences for the sponsor and others of removing the sponsorship privilege.
This judgment reinforces the importance of compliance with sponsor duties and the potentially serious commercial and reputational impact on a business of sponsor licence revocation.
Separately, the recent statement of changes to the Immigration Rules (see [ref]) has introduced some protection for the growing pool of care workers and senior care workers who are seeking new sponsorship (because their sponsors have been unable to offer sufficient work or have lost their sponsor licences as in the cases above). From 9 April 2025, sponsors of care workers and senior care workers will be required to recruit from this pool before sponsoring new recruits from other immigration routes or from overseas.
Disability Discrimination: Claimant who reasonably believed disclosing disability would harm future career entitled to anonymity order
In F v J [2025] EAT 34,the EAT has held that a tribunal erred when it refused to grant a claimant’s application for an anonymity order in his disability discrimination claim.
The claimant was an academic who had disclosed his disability to his employer but who had otherwise kept his disability hidden (even from close family members) and did not wish for it to be disclosed publicly. In applying for an anonymity order, the claimant argued that disclosure of his disability would considerably reduce his chances of future employment and, if employed as a teacher, knowledge of his disability among pupils would result in considerable disorder.
The EAT held that the claimant had to meet the relatively low evidential threshold of proving that he had a reasonable foundation for his belief that disclosing his disability would harm his future career. The tribunal had set the bar too high by requiring him to prove objectively that his fears were well grounded. It was inherently impossible to prove what would happen in the future. Medical and psychological evidence could demonstrate the extent of the claimant’s disability but could not address the question of whether it carried the stigma that the claimant asserted. The claimant had produced evidence to support his concerns in the form of experimental research which had assessed the impact of disclosure of disability on employment prospects. Based on the material before it, the EAT found that the claimant’s belief was genuinely and reasonably held.
Addressing the open justice principle, the EAT noted that all of the facts in the case would be set out in any judgment and considered that the identity of the parties was not critical to public understanding. The lay members considered that the interference with the principle of open justice was relatively minor and far outweighed by the claimant’s genuine and reasonably held fears.
The EAT substituted a decision that both parties be anonymised throughout the proceedings. Given the level of detail which was likely to emerge, failure to anonymise the respondent would make identification of the claimant highly likely.
Worker Status: EAT gives guidance on test for worker status
In Ter-Berg v Malde and another [2025] EAT 23, the EAT (HHJ Auerbach, sitting alone) has held that an employment tribunal erred in several respects when deciding if an individual, who had previously been found by the tribunal not to have been an employee, was a worker.
As an initial observation, the EAT remarked that it was “unfortunate” that the tribunal had chosen to deal with the questions of employment status and worker status in separate preliminary hearings. Given the overlap between the tests and the likely relevant evidence, the issues should normally be dealt with together.
The tribunal had also erred by:
Finding that the “personal service” element of the statutory test for worker status was not met. It had reached this conclusion on the basis that it was bound to do so because of its earlier judgments in relation to employment status. However, the earlier judgments did not actually determine the issue of personal service. On the facts, the tribunal should have held that the personal service element of the test was satisfied.
Concluding that a finding of worker status would be inconsistent with its earlier judgments on employment status. There was a “lower pass mark” in relation to the test for worker status. While the tribunal’s earlier conclusion that there was not sufficient control to establish an employment contract might be a relevant consideration, it was not determinative of the separate test of whether the claimant was a worker.
Transferring its conclusions in relation to the parties’ intentions as to whether the claimant was an employee to the question of whether he was intended to be, or was, a worker. Comments suggesting that the claimant was “self-employed” were potentially ambiguous and had to be considered individually to discern their meaning. While the relevant contract had explicitly ruled out employment status, there was nothing to suggest that the parties had considered, or ruled out, worker status.
The case was remitted to a fresh employment tribunal.
Unfair Dismissal: Court of Appeal finds single incident of touching a pupil was not sufficient to warrant dismissal of school inspector
The Court of Appeal has agreed with the EAT in Hewston v Ofsted [2025] EWCA Civ 250that a single incident in which a school inspector had touched a pupil without their consent did not warrant dismissal for gross misconduct.
Mr Hewston had been summarily dismissed without warning from his job as an Ofsted school inspector, following a complaint regarding his conduct towards a child during a school inspection. A group of pupils had come in from the rain and Mr Hewston had brushed water off the hair or forehead of one of them, and put his hand on the child’s shoulder. This had led to a complaint by the school. An employment tribunal found the dismissal fair, holding that Ofsted had conducted a fair and reasonable investigation and had a reasonable belief that his actions amounted to gross misconduct.
The EAT allowed Mr Hewston’s appeal and substituted a finding that the dismissal had been unfair. The Court of Appeal upheld the EAT’s decision. There had never been any suggestion of improper motivation, and the incident had been intended as “a friendly act of sympathy and assistance“. The EAT had correctly asked itself whether, in the absence of a “no touch” policy, it was reasonable for Ofsted to have taken the view that Mr Hewston’s conduct was of a kind which he should have realised would be regarded as warranting dismissal. The EAT had correctly held that it had not been reasonable, since the incident did not raise any safeguarding issue and inspectors had been given no training about touching students.
Ofsted argued that the reason for dismissal had included not just the touching incident, but also Mr Hewston’s subsequent lack of remorse. The Court noted that it would not generally be reasonable for an employer to “bump up” the seriousness of an employee’s conduct just because they fail to show proper contrition or insight during the disciplinary process. This was not a case where there had been a persistent failure to recognise any wrongdoing, giving rise to a real risk of more serious misconduct in the future. Mr Hewston had stated that he would not do anything of the kind again and that he would be willing to undergo training.
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.
The UK government is set to introduce significant changes to the unfair dismissal regime...
News & Views
Employment Law General Update – March 2025
Anne-Marie Pavitt,
26th March 2025
Employment Law
With a new government and budget comes a lot of change. This month we report on changes to immigration rules and fees, the results from an independent report published by the Departments for Work and Pensions and Business and Trade about how we can reduce economic inactivity related to people unable to work due to ill-health and disability, a government consultation on proposed mandatory pay reporting affecting ethnicity and disability, and a government response to an official report on statutory sick pay. Lastly, a new campaign has been launched by ACAS to improve understanding and support for neurodivergent workers, as we become more aware of this element of our workforce.
Immigration: Changes to UK Immigration Rules, and fees increase on 9 April 2025
From 12 March 2025, nationals of Trinidad and Tobago are being classified as “visa nationals”, requiring them to obtain a visa before travelling to the UK.
From 2 April 2025 and 9 April 2025 respectively, certain French children visiting the UK on a school trip and British National (Overseas) nationals will not require Electronic Travel Authorisation prior to travelling to the UK as a visitor.
From 9 April 2025, there will be changes to the minimum salary threshold for some Skilled Workers (increasing from £23,200 a year to £25,000 a year) as well as some sponsorship protection introduced for care workers and senior care workers.
From 9 April 2025, there will be restrictions on permitted salary reductions for Skilled Workers.
In January 2025, the government announced its intention to raise immigration fees and charges . The Immigration, Nationality and Passport (Fees) (Amendment) Regulations 2025 (SI 2025/363) have now been passed. Consequently, the Home Office has published details of the new immigration fees, which take effect at 9.00 am on 9 April 2025. Most visa application fees are due to increase by approximately 5 to 10%. The most notable changes include:
The Certificate of Sponsorship (CoS) fee under the Skilled Worker, T2 Minister of Religion, Global Business Mobility – Senior or Specialist Worker and International Sportsperson routes will increase by almost 120% from £239 to £525. Where possible, sponsors may wish to assign a CoS prior to 9 April 2025 to avoid this increase.
The Electronic Travel Authorisation (ETA) fee is rising from £10 to £16.
Naturalisation as a British citizen will increase from £1,500 to £1,605. The sponsor licence application fee will also increase from £1,476 to £1,579 (for large sponsors) and from £536 to £574 (for small sponsors).
On 20 March 2025, the Departments for Work and Pensions and Business and Trade published an independent report, Keep Britain Working Review: Discovery. It is the first stage in Sir Charlie Mayfield’s review of economic inactivity due to ill-health and disability. The review will consider what can be done to address this inactivity, and to support people back into work and to stay in work. The report, which sets out how economic inactivity is viewed and the issues that may need to be addressed to improve it, will be followed by an engagement phase focusing on prevention and pathways back to work (running until the end of May 2025) and then recommendations to the government.
The report notes that the UK appears to be the only advanced economy where economic inactivity is increasing, with 40% more people of working age economically inactive for health reasons than there were in 2019. The growth in the number of people who are becoming economically inactive for health reasons is nearly ten times the growth of the working age population. The largest increases were observed among younger people (aged 16 to 34), with an increase of 1.2 million or 77%. Nearly one in four people out of work due to ill-health are under 35.
The report identifies three areas that are likely to be the focus of future recommendations:
Employer incentives. At critical moments in managing absence, incentives for employers to retain employees are muddled or misaligned between employers and employees.
Interventions. When individuals face ill-health, fluctuating conditions or work barriers, there is often a delay before they access effective support and treatment (especially related to mental health). This leads to deterioration in outcomes and longer periods out of work, as well as early exits.
Case management. When individuals are absent from work because of ill-health or disability, there is often little in the way of effective case management or leadership.
The report also highlights five principles underpinning effective labour market design: strong employer incentives for prevention and retention, early intervention and structured return-to-work support, sufficient support during sickness while maintaining a dynamic labour market, alignment between government and employer roles, and minimising structural barriers to re-employment.
In developing its recommendations, the review will reflect on the reform options being considered as part of the White Paper, Get Britain Working.
The review’s recommendations are expected in autumn 2025.
Equality (Race and Disability) Bill: Government issues consultation on mandatory ethnicity and disability pay reporting for large employers
On 18 March 2025, the government published a consultation on how to introduce mandatory ethnicity and disability pay gap reporting for employers with 250 or more employees, in line with its manifesto commitment.
The government proposes using a similar framework to that already in place for gender pay gap reporting. The same employers would fall within scope, the same six measures of pay would be reported and the same snapshot and reporting dates would be used. However, employers would also be required to report the overall breakdown of their workforce by ethnicity and disability, and the percentage of employees not disclosing their data. Large public bodies may be required to publish additional information on ethnicity, including pay differences by grade or recruitment, retention and progression data. Views are sought on whether employers should also be required to produce action plans.
In contrast to gender pay gap reporting, employees would be asked to self-report their ethnicity and disability status, with an option to opt out. The government proposes using standardised ethnicity groupings. Given data protection considerations, it proposes a minimum of ten employees in any ethnic group being analysed. Smaller groups may need to be aggregated. It is proposed that all employers should report, at a minimum, a binary comparison, preferably between White British employees and all other ethnic minority groups combined. Similarly, with disability reporting, a minimum of ten employees must fall in each group being compared. To avoid the risk of individual identification and the complexities of multiple impairments, the government proposes that disability reporting should take a binary approach of only reporting differences between disabled and non-disabled employees, rather than by type of impairment.
Alongside the new consultation, the government published the findings of the disability workforce reporting consultation carried out by the previous Conservative government in 2021-22. The findings had not previously been published. The consultation showed strong support among both employers and employees for the mandatory collection of disability workforce data by large employers. However, there were concerns, mainly from employee respondents, that reporting would become a tick-box exercise, with no real impact, and that employees may feel forced to self-disclose personal data.
The consultation closes on 10 June 2025. The findings of the two consultations, as well as a forthcoming call for evidence, will inform the government’s approach to the draft Equality (Race and Disability) Bill, to be published in the current parliamentary session.
Statutory Sick Pay: Government responds to Work and Pensions Committee report
On 14 March 2025, the government responded to a report published by the House of Commons Work and Pensions Committee (the Committee). The report was published in March 2024 under the previous Conservative government and had called for a substantial overhaul of the statutory sick pay (SSP) framework ahead of the 2025-26 financial year.
Some of the Committee’s recommendations will be addressed by changes to SSP being made by the Employment Rights Bill (ERB). Removal of the current three-day waiting period will assist with phased returns to work (because SSP will be payable for single days of sickness absence). The lower earnings limit (LEL) for SSP eligibility will be removed. People earning below the current rate of SSP will receive 80% of their normal weekly earnings. The government will update guidance to account for these changes and, as part of this, will seek to clarify the operation of SSP for agency workers.
Contrary to the Committee’s recommendation, the government will not equalise the rate of SSP with the flat rate of statutory maternity pay (SMP). It reasoned that SSP and SMP are paid for different reasons. Employers can plan for maternity leave absences (because they receive at least 15 weeks’ notice) and they can claim back up to 92% of SMP, with those qualifying for Small Employers’ Relief claiming back up to 103% of their SMP payments. In contrast, employers pay the full cost of SSP. Modelling by the Department for Work and Pensions (DWP) estimates that equalising SSP with the rate of SMP would cost businesses an additional £500 million per year when they already face the cost of removing the waiting period and LEL.
Declining to accept the recommendation for a small business rebate for SSP, the government suggested that having responsibility for sick pay encouraged employers to support employees to return to work. The forthcoming review, Keep Britain Working, will consider how employers can be supported in promoting healthy workplaces that enable people to stay in, or return to, work. The Percentage Threshold Scheme, which had provided rebates in certain circumstances until its removal in 2014, had been administratively complex and underused.
ACAS: Campaign launched to improve understanding and support for neurodivergent workers
On 20 March 2025, ACAS launched a campaign to improve understanding and support for neurodivergent workers. The campaign will equip employers with resources and advice to help foster a culture of belonging, where neurodivergent workers can thrive.
The focus of the campaign will be on practical steps employers can take to make work environments more accessible. These will include:
Inclusive hiring practices. Ensuring recruitment processes accommodate different cognitive styles.
Reasonable adjustments. Providing tailored support, such as flexible work arrangements and assistive technology.
Workplace awareness. Educating employers and staff about neurodivergence to reduce stigma and increase understanding.
Alongside the campaign, the Department for Work and Pensions has formed a new expert panel on neurodiversity and employment. The panel is set to examine employment outcomes for neurodivergent people. Running until the summer of 2025, it is expected to provide evidence-based recommendations to inform workplace practices and policy. The panel will consider all types of neurodivergence. It will also explore key barriers to employment and workplace success, effective employer actions to enhance inclusion, government policies that could drive systemic change, the economic benefits that are linked to greater neurodiversity in the workforce, and intersectionality (including how social deprivation, gender and ethnicity impact neurodivergent employment outcomes).
ACAS states that employers should prepare for, among other things, better accountability in ensuring that recruitment and workplace policies support neurodivergent people, more practical guidance, and a stronger evidence base to underpin the benefits of neuroinclusive practices.
The campaign launch and panel formation follow the recent publication of ACAS advice on neurodiversity and a report by researchers at Birkbeck, University of London.
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.
The UK government is set to introduce significant changes to the unfair dismissal regime...
News & Views
Employment Law Case Update – February 2025
Anne-Marie Pavitt,
25th February 2025
Employment Law
This month we focus on a couple of cases we have seen before, one has now gone to Appeal and the other has come back from Appeal to be judged in the tribunal and is part of a wider set of equal pay claims affecting large retail stores. Our last case considers a flawed disciplinary process resulting in unfair dismissal.
Direct Discrimination: Christian employee’s dismissal for gender critical Facebook posts was direct discrimination
Equal Pay: Asda retail workers carried out work of equal value to distribution centre workers
Unfair Dismissal: Tribunal erred by adopting substitution mindset in conduct case
Direct Discrimination: Christian employee’s dismissal for gender critical Facebook posts was direct discrimination
In Higgs v Farmor’s School [2025] EWCA Civ 109, the Court of Appeal (Underhill, Bean and Falk LJJ) has upheld a Christian employee’s appeal against the EAT’s decision to remit her direct discrimination claim to the employment tribunal. The employee was dismissed by a school because of Facebook posts which it considered could have led readers to believe she held homophobic and transphobic beliefs.
The court substituted a finding that the employee’s dismissal was direct discrimination on the ground of religion or belief. It held that where a dismissal is motivated by the objectionable way in which a belief is expressed, an employer can only lawfully dismiss where it can show that dismissal was an objectively proportionate response. Although the school was entitled to object to the posts because of the offensive language towards gay and trans people, and the context of sex education in schools was relevant to the employee’s work, its decision to dismiss was “unquestionably a disproportionate response”. It was based on concerns about potential future reputational damage. However, even where the risk of reputational damage is shown, an employer’s interference with an employee’s right to express their beliefs must still be proportionate. The proportionality of its interference will depend on whether the views are expressed on matters central to its business, the way in which the beliefs are expressed and whether the views could be imputed to the employer.
There is no objective justification test for direct discrimination under section 13 of the Equality Act 2010 (EqA 2010). However, as established in Wasteney v East London NHS Foundation Trust [2016] ICR 643, section 3 of the Human Rights Act 1998 (HRA 1998) requires the incorporation of the objective justification test in Article 9(2) of the European Convention on Human Rights (ECHR) (freedom of thought, conscience and religion) to the extent necessary to achieve compatibility with those rights. This reasoning was followed by the Court of Appeal in Page v NHS Trust Development Authority [2021] EWCA Civ 255 and was consistent with ordinary principles of domestic construction. The legislature could not have intended that an employee could manifest a belief in any matter they chose, and the ECHR qualified the right to manifest a belief in Article 9(2). Direct discrimination in manifestation cases is uniquely different from discrimination on the grounds of other protected characteristics. It is a special category requiring a more flexible approach.
Equal Pay: Asda retail workers carried out work of equal value to distribution centre workers
In Brierley and others v Asda Stores Ltd ET/2406372/08, an employment tribunal has held that the majority of lead claimants working in retail roles at Asda supermarkets carried out work of equal value to their employer’s distribution centre workers, for the purposes of section 65 of the Equality Act 2010. At a final equal value hearing, the tribunal compared the jobs of 14 women lead claimants in retail roles with 17 workers in distribution centre roles. It found that 11 of the lead claimants, including checkout operators and shop floor assistants, carried out roles of equal value to at least some of the distribution centre roles and that one claimant, who was a section leader, was in a role equal to all of them. However, the tribunal held that the roles of two of the lead claimants, a personal shopper and a shop-floor assistant for edible groceries, were not work of equal value to any of the distribution centre roles.
The long-running claims commenced in 2014 and cover the period from August 2008 and June 2014. In March 2021, the Supreme Court upheld the decisions of the tribunal, the EAT and the Court of Appeal that the retail roles could be compared with the distribution centre roles for equal pay purposes. Similar equal pay claims have been brought against Morrisons, Tesco, Sainsbury’s, Co-op and Next.
It is understood that an appeal is being considered in respect of the tribunal’s findings on the personal shopper and edible groceries roles, as the decision could adversely affect around 11,000 of the 60,000 claimants. Subject to any appeal, the next stage will be for the tribunal to determine whether the reason for the difference in pay between the retail and distribution workers was based on sex. It has been reported that the workers could potentially receive backpay of around £1.2 billion, with individual claims amounting to around £20,000.
Unfair Dismissal: Tribunal erred by adopting substitution mindset in conduct case
In Metroline Travel Ltd v Taylor (debarred) [2025] EAT 4, the EAT has held that an employment tribunal’s finding that a bus driver, Mr Taylor, had been unfairly dismissed by his employer (Metroline Travel Ltd), after getting into a fight with another driver, was fundamentally flawed.
The tribunal found that there was no doubt about the physical altercation, which had been with another company’s driver over a depot parking bay, and that when the other driver had boarded Mr Taylor’s bus and tried to pull him off, Mr Taylor’s response had been disproportionate. Mr Taylor had also left his bus cab while on duty, contrary to Metroline’s policies. Despite this conduct, the tribunal found that the dismissal was substantively unfair, based on evidential issues with CCTV footage, flaws with the disciplinary process and the fact that, in another similar incident, a bus driver who had also been involved in a fight with a passenger had been reinstated.
The EAT found that the tribunal had erred by failing to apply the “range of reasonable responses” test at various stages of its inquiry. While the tribunal had reached a view that Metroline had established the reason for dismissal and that it genuinely believed that Mr Taylor’s actions constituted misconduct, it erred in its analysis of reasonableness, based on a substitution of its view for that of the employer, and its analysis of Metroline’s procedure.
In particular, there was no finding on whether it had been outside the range of reasonable responses for Metroline not to question another driver who had witnessed the incident in her rear-view mirror. The tribunal had also failed to consider the disciplinary process as a whole, merely stating its conclusion that the appeal process did not remedy any flaws in the earlier investigation process. Most obviously, the tribunal had fallen into the substitution mindset in its analysis of the other similar case. The tribunal had conducted a detailed analysis comparing the two incidents and expressing its view that the other incident was worse because Mr Taylor had not shown sustained aggression. This was contrary to Metroline’s position, which was that the two situations could be distinguished by Mr Taylor’s lack of remorse. The tribunal had failed to consider whether that view was within the range of reasonable responses.
The case was remitted to a fresh employment tribunal.
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.
The UK government is set to introduce significant changes to the unfair dismissal regime...
News & Views
Employment Law General Update – February 2025
Anne-Marie Pavitt,
25th February 2025
Employment Law
The Government has been busy this month, announcing plans to reform the apprenticeship system, issuing new immigration guidance for Right To Work checks and changes to eVisas, and publishing its strategic plan for Anti-Slavery. Meanwhile, the Low Pay Commission has produced new policy recommendations for the national minimum wage and ACAS has produced new advice intended to raise awareness of neurodiversity at work.
Job Skills: Changes to apprenticeships in England and Scotland
Immigration: Home Office updates Employer’s guide to right to work checks
Modern Slavery: Anti-Slavery Commissioner publishes strategic plan for 2024 to 2026
NMW: Low Pay Commission policy recommendations for National minimum wage
ACAS: New advice published to raise awareness of neurodiversity at work
Job Skills: Changes to apprenticeships in England and Scotland
The government has announced plans to reform the apprenticeship system, aiming to increase the number of apprentices by up to 10,000 per year. The changes, which include shorter and more flexible apprenticeships, are designed to give employers more control over English and maths requirements, allowing them to decide whether adult learners need to complete a level two English and maths qualification to pass their apprenticeship.
The changes, which will come into effect immediately for English and maths requirements and from August 2025 for the minimum length of an apprenticeship, will enable more learners to qualify in high-demand sectors such as healthcare, social care and construction. The minimum duration of an apprenticeship will be reduced from 12 to eight months.
The government believes that these reforms will help to drive economic growth, meet government targets, and break the link between background and success. Employers, including the Federation of Small Businesses, have welcomed the changes, stating that they will help to fill skills gaps faster.
The new leadership of Skills England, a nationwide body for skills, will play a key role in implementing these changes.
The changes have been widely welcomed by businesses, with many stating that they will help to widen access to apprenticeships and remove unnecessary barriers. The government’s plan for growth, which includes these reforms, aims to support apprentices throughout their journey and provide opportunities for all, regardless of background.
Meanwhile, the Scottish Government introduced the Tertiary Education and Training (Funding and Governance) (Scotland) Bill on 5 February 2025. If passed, it will see responsibility for providing national training programmes and apprenticeships move from Skills Development Scotland to the Scottish Further and Higher Education Funding Council (SFC). The Bill aims to simplify the funding landscape for post-school education and training in Scotland, allowing the Scottish ministers to make grants available to the SFC for apprenticeships and explaining how those grants can be used.
Immigration: Home Office updates Employer’s guide to right to work checks
As part of the digitisation of the immigration system, the Home Office now issues digital immigration statuses (eVisas) rather than physical biometric residence permits (BRPs). The Home Office has updated the Employer’s guide to right to work checks to confirm that, from 12 February 2025:
Individuals who apply overseas and are granted permission to enter the UK for more than six months are issued with a vignette (sticker) in their passport which is valid for 90 calendar days to enable them to travel to the UK. Following their arrival, they will have ten calendar days or before their vignette expires (whichever is later) to create a UKVI account (previously they were required to collect a BRP) to access their eVisa to prove to their employer they have the right to work in the UK.
If an individual needs to start work in the UK before creating a UKVI account and accessing their eVisa, their employer can conduct a manual right to work check using their 90-day vignette. However, before the expiry of the vignette, the employer must conduct a follow-up online right to work check to maintain their “statutory excuse” against civil penalties for illegal working. If, prior to the expiry of their vignette, the individual is unable to access their eVisa, or there is an error with it, they should contact UKVI. Their employer is not required to immediately terminate their employment if it believes that the individual has an ongoing right to work in the UK but it should contact the Employer Checking Service to try to obtain a Positive Verification notice to maintain its statutory excuse.
The list of acceptable documents for manual right to work checks has also been updated to confirm that:
A clipped British or Irish passport (identified by the corners of certain pages in the passport being cut or removed) is a cancelled document and therefore not acceptable proof of right to work.
A short or long birth certificate is considered acceptable when presented with official evidence of name and national insurance number issued by a government agency or a previous employer.
Modern Slavery: Anti-Slavery Commissioner publishes strategic plan for 2024 to 2026
On 11 February 2025, the Independent Anti-Slavery Commissioner (IASC) published its strategic plan for 2024 to 2026, as presented to Parliament. The post of IASC, appointed by but independent to the government, was filled in December 2023 after being vacant for nearly two years. This plan covers the current IASC’s three-year term.
The IASC’s plan outlines three overarching objectives, together with a list of actions that the IASC intends to take to achieve them. The objectives cover the prevention of modern slavery, the protection and identification of victims, and the prosecution of offenders and victim support. Managing supply chain risk and transparency forms part of the prevention objective. The IASC reiterates that the role of private sector businesses should include working with suppliers to identify and rectify forced labour issues within production and manufacturing or recruitment practices.
While the plan praises the government’s introduction of a central registry for businesses’ statements under the Modern Slavery Act 2015 (MSA) on steps taken to prevent slavery in their operations and supply chains, it highlights general concerns about statement quality and poor enforceability. It also notes that the UK (unlike other European countries) has not introduced mandatory human rights due diligence legislation. To address these concerns, the IASC plans include:
Encouraging the government to strengthen its policy response to forced labour in domestic and global supply chains.
Pushing for mandatory human rights due diligence legislation in the UK.
Working with businesses to improve compliance with the MSA and promote best practice.
The IASC’s comments and proposals broadly align with recommendations made by a House of Lords Select Committee to revisit the former Conservative government’s draft Modern Slavery Bill (which would mandate the content of statements and introduce proportionate sanctions for non-compliance) and to introduce mandatory human rights supply chain due diligence. While the government’s response did not promise to implement these recommendations, it did indicate plans to review possible measures to increase transparency in global supply chains and promise to publish next steps in due course. It has also not ruled out introducing due diligence rules entirely, although it remains to be seen in which direction the UK will choose to go.
NMW: Low Pay Commission policy recommendations for National minimum wage
The Low Pay Commission (LPC) has published its 2024 annual report on the National Minimum Wage (NMW). The report sets out its previous recommendations to the government on increases to the NMW from 1 April 2025. It also sets out the following policy recommendations to the government:
The issue of the entitlement of those working sleep-in shifts to the NMW should be addressed in the planned Fair Pay Agreement with the social care sector. Workers on sleep-in shifts are not currently entitled to the NMW following the Supreme Court’s ruling in Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8.
The entitlement to, and enforcement of, the NMW for seafarers should be looked at more widely, including via full implementation of the Seafarers’ Wages Act 2023 (SWA 2023). The SWA 2023 came into force in part on 23 March 2023, with the remaining provisions coming into force on 1 December 2024. However, government amendments to the Employment Rights Bill, approved at Committee Stage on 14 and 16 January 2025, will amend the SWA 2023, strengthening the rights of seafarers in relation to wages and working conditions. This includes the power to make regulations for determining the NMW-equivalent hourly rate for non-qualifying seafarers.
ACAS: New advice published to raise awareness of neurodiversity at work
On 31 January 2024, ACAS published new advice on neurodiversity at work to help employers create inclusive organisations and raise awareness so that talking about neurodiversity is normalised.
The advice provides definitions of relevant terminology, but notes that the language around neurodiversity is constantly changing and it can be tricky to know what is appropriate. ACAS uses the term “neurodiverse” to describe the natural differences in how people’s brains behave and process information and “neurodivergent” to describe someone whose brain works differently to what is considered more typical. Common types of neurodivergence include ADHD, autism, dyslexia, dyspraxia, dyscalculia and Tourette’s syndrome.
Some neurodivergent people do not see themselves as disabled, but being neurodivergent may amount to a disability under the Equality Act 2010. The advice acknowledges that many employees will not disclose to their employer that they are neurodivergent and may mask their condition due to concerns about a negative reaction. Where an employer suspects that an employee is neurodivergent, ACAS advises that it should approach the situation sensitively, not ask directly about the employee’s condition and focus on any reasonable adjustments that might help to support them (whether or not they have a diagnosis for neurodivergence). Appropriate reasonable adjustments will vary as people often experience neurodivergence differently.
ACAS also gives practical advice on how to manage capability or conduct concerns for neurodivergent employees. Before using a formal procedure, an employer must first ensure that they have explored reasonable adjustments. For example, where an employee with ADHD is struggling to concentrate and is missing deadlines, an employer might provide noise-cancelling headphones or a quiet space to work. Where formal procedures are necessary and appropriate, an employer should ensure that such procedures incorporate reasonable adjustments for the neurodivergent employee (for example, setting out meeting records clearly for an autistic employee who finds disorganised information distracting).
Actively including neurodivergent employees at work is sometimes called “neuroinclusion“. ACAS recommends the following measures (among others) to create a neuroinclusive workplace:
Review recruitment processes, where possible allowing applicants to see questions before the interview and consider alternatives to interviews.
Train and support managers.
Raise awareness of neurodiversity (for example, through mandatory training, awareness days and campaigns or staff networks).
Have a neurodiversity policy stating the organisation’s overall commitment to neurodiversity inclusion and outlining available support.
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.
The UK government is set to introduce significant changes to the unfair dismissal regime...
News & Views
Employment Law Case Update – January 2025
Anne-Marie Pavitt,
24th January 2025
Employment Law
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 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.
The UK government is set to introduce significant changes to the unfair dismissal regime...
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.
The UK government is set to introduce significant changes to the unfair dismissal regime...
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.
The UK government is set to introduce significant changes to the unfair dismissal regime...
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.
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