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.
This month we look at when a whistleblowing claim may be relevant...
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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.
This month we look at when a whistleblowing claim may be relevant...
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.
This month we look at when a whistleblowing claim may be relevant...
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.
Prior to its success in the general election that took place on 4 July 2024, the Labour Party proposed wide-ranging and fundamental reform of employment law. It promised that several of its reforms would be contained in an Employment Rights Bill (ERB), which was introduced on 10 October 2024.
Together with the draft ERB, on 10 October 2024, the government published a policy paper, Next Steps to Make Work Pay (Next Steps paper), which set out the steps the government intends to take following the publication of the ERB. It confirms that further detail on many of the policies contained in the ERB will be provided through partnership with business, workers and trade unions, regulations, and in some cases codes of practice, after the ERB has received Royal Assent, which is expected to be in 2025.
The ERB makes provision for wide-ranging changes to be made to employment law, including in relation to unfair dismissal, fire and rehire, collective redundancies, zero hours and low hours contracts, trade unions and industrial action, sexual harassment and third-party harassment, statutory sick pay (SSP), flexible working and family leave. In October 2024, the government published four consultations as part of its first phase of consulting relevant stakeholders. Further consultations are expected in 2025, which will deal with matters to be included in supporting regulations.
The existing right to two weeks’ parental bereavement leave following the death of a child under 18 or a stillbirth will be extended to be an entitlement to more general “bereavement leave”, which will apply to the loss of a wider group of persons (clause 14, ERB). Like the current provision for parental bereavement leave, bereavement leave will be a day-one right. Regulations will specify the relationships with a person who has died that will qualify an employee to take bereavement leave, and the government will consult on the details to be set out in secondary legislation.
The ERB strengthens redundancy rights and protections by removing the “at one establishment” test for collective redundancies, meaning that the threshold of 20 or more redundancies will be met when that number is impacted across the entire business, rather than at one site. This will increase the obligations on multi-site employers to collectively consult and will require them to keep rolling records of redundancies proposed across their multiple sites. In addition, the government is consulting about raising the current level of the protective award from 90 to 180 days’ pay, or to an uncapped amount and allowing employees to claim interim relief where they have a claim for a protective award or a claim for unfair dismissal in a fire and rehire scenario. During 2025, the government also plans to consult on increasing the minimum collective consultation period when an employer is proposing to dismiss 100 or more employees from 45 to 90 days.
The practice of fire and rehire has received widespread negative press coverage in recent years following a number of high-profile cases. These include the dismissal of almost 800 employees by P&O Ferries in 2022, to be replaced by lower-paid agency staff, and also a case where Tesco (unsuccessfully) sought to use the practice to overturn preferential pay rates it had agreed on a “permanent” basis with staff who agreed to relocate.
The ERB would restrict the ability of an employer to use dismissal and re-engagement (known as “fire and rehire”) as a lawful means of changing an employee’s contractual terms, save where there is genuinely no alternative, due to financial difficulties which threaten the employer’s ability to carry on business as a going concern. It does this by making any dismissal automatically unfair where the reason for dismissal is that the employee did not agree to the employer’s attempt to vary their terms and conditions, or because they intended to employ another person to carry out substantially the same role. On 21 October 2024, the government published a consultation on strengthening the remedies against abuse of the fire and rehire and collective consultation rules (see above). The consultation closed on 2 December 2024.
It is not clear what the government’s intentions are with regard to the Statutory Code of Practice on Dismissal and Re-engagement which was introduced under the previous Conservative government but only came into force on 18 July 2024. Despite its previous strong criticisms of the Code as being “inadequate”, it remains in force for now. It is possible that the government still intends to replace the Code with another one containing more stringent obligations on employers, as envisaged in the Plan to Make Work Pay, although any new Code of Practice would need to be consulted on before it could receive parliamentary approval.
Future regulations made under clause 26 of the ERB will require employers with 250 employees or more to develop and publish equality action plans showing what steps they are taking in relation to prescribed matters related to gender equality and to publish prescribed information relating to their plans.
Matters relating to gender equality will be those concerning the advancement of equality between male and female employees and will include addressing the gender pay gap and supporting employees going through the menopause. In November 2024, proposed amendments to the ERB were published which will be considered by the Public Bill Committee. An amendment proposed by the government would require employers to include an explanation in their equality action plans on how they are supporting employees with menstrual problems and menstrual disorders.
The government will consult the Equalities and Human Rights Commission (EHRC) on the content of the regulations before they are published.
The ERB contains provisions permitting the Secretary of State to delegate their labour market enforcement functions to a public authority and to appoint enforcement officers. The Next Steps paper confirms that this will be the new Fair Work Agency (FWA), which will bring together the existing enforcement functions of HMRC (in relation to the national minimum wage (NMW)), the Employment Agency Standards Inspectorate (EASI) and the Gangmasters and Labour Abuse Authority (GLAA). The introduction of a single enforcement body has long been on the cards and was one of the government’s key manifesto pledges. However, whether the FWA succeeds in improving enforcement is likely to depend on the level of financial resources it is allocated, which is not yet clear. It is not yet known when the FWA will be established, although it is likely to be a number of years before it is fully operational.
Paternity leave and unpaid parental leave will become a day-one right for eligible employees. The government also stated in the Next Steps paper that it intends to make it unlawful to dismiss employees who have been pregnant within six months of their return to work, except in specific circumstances. Regulations are awaited to define what these specific circumstances will be. The government also stated in the Plan to Make Work Pay that it would conduct a review of the current parental leave system during the first year of the Labour government, so this is expected by July 2025.
The existing day-one right to request flexible working under Part VIIIA of the ERA 1996 (sections 80F to 80I) (as amended) together with the Flexible Working Regulations 2014 (SI 2014/1398) (Flexible Working Regulations) (as amended) will remain, but the ERB will introduce a reasonableness test into the regime, providing that employers will only be able to rely on one of the statutory reasons to refuse a request for flexible working where it is “reasonable for the employer to refuse the application on that ground or those grounds”. In addition, employers will be required to state and explain what the ground for any refusal is and why the refusal is considered reasonable. The Next Steps paper confirmed that there will be a consultation to develop the detail of the approach to be taken on flexible working.
The ERB will amend section 40A of the EqA 2010 to require employers to take “all reasonable steps” to prevent sexual harassment, reflecting the wording originally contained in the Worker Protection Bill. Currently, employers are required to take reasonable steps to prevent sexual harassment of their employees during the course of their employment under the Worker Protection (Amendment of Equality Act 2010) Act 2023, which came into force on 26 October 2024. Employers will also be under a duty to take “all reasonable steps” to prevent third-party sexual harassment, and to prevent third-party harassment in relation to the other relevant protected characteristics.
In addition, the ERB will amend the whistleblowing provisions of the ERA 1996 to make it clear that reporting sexual harassment will amount to a qualifying disclosure.
The ERB provides employees with the right to SSP from the first sick day rather than from the fourth day and removes the requirement for the employee’s earnings to be not less than the lower earnings limit to be eligible for SSP.
On 21 October 2024, the government published a consultation on SSP. The consultation, which closed on 4 December 2024, sought views on what the percentage of average weekly earnings should be for the purposes of calculating the rate of SSP for some low-earning employees.
The ERB will repeal the Strikes (Minimum Service Levels) Act 2023. While nearly all of the restrictions placed on industrial action and picketing by the Trade Union Act 2016 will be removed, the time-limited mandate for industrial action following a ballot will remain. The ERB will introduce the right to a statement of trade union rights and the right for trade unions to access workplaces, it will simplify the rules on trade union recognition, introduce protection against detriment for taking industrial action and increase protection against dismissal for taking industrial action. These are summarised below.
The Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992) will be amended to require employers to give workers a written statement advising that they have the right to join a trade union at the same time as providing the worker’s section 1 statement and at other prescribed times.
Unrecognised unions will be provided with the opportunity to recruit and organise within a workplace with the aim of gaining recognition. Trade unions and employers will be able to enter “access agreements” providing union officials with access to the employer’s workplace for the purposes of meeting, representing, recruiting or organising workers, or facilitating collective bargaining (but expressly not to organise industrial action). The union may apply to the Central Arbitration Committee (CAC) to determine workplace access if the employer fails to respond to its request for an access agreement. Either party may make an application where negotiations are unsuccessful.
The statutory scheme for trade union recognition set out in Schedule A1 to TULRCA 1992 will be amended to:
Enable the 10% membership threshold for the CAC to accept a trade union recognition application (and at other stages of the recognition scheme) to be reduced to between 2% and 10%.
Remove the requirement at the application stage (and at other stages of the recognition scheme) for a union to demonstrate that there is likely to be majority support for trade union recognition.
Remove the 40% support threshold from recognition ballots.
Protection against detriment for taking industrial action
TULRCA 1992 will be amended to provide workers with the right not to be subjected to detriment of a prescribed description by any act (or any deliberate failure to act) by their employer, if the act (or failure) takes place for the sole or main purpose of preventing or deterring the worker from taking protected industrial action, or penalising the worker for doing so.
TULRCA 1992 will be amended to provided that for the full duration of an official, lawful strike and after that strike has concluded, an employee will be automatically unfairly dismissed where the reason (or, if more than one, the principal reason) for the dismissal is that the employee took such protected industrial action.
The government’s consultation, Making Work Pay: creating a modern framework for industrial relations, which closed on 2 December 2024, sought views on strengthening provisions to prevent unfair practices during trade union recognition, simplifying industrial action ballots, reducing notice of industrial action, extending the permitted duration of industrial action, updating the law on repudiation of industrial action and on prior call, and on enforcement of the trade union right to access workplaces.
In a set of amendments to the ERB published in November 2024, the government confirmed that it would extend the time limits for bringing all tribunal claims from three to six months. It is not yet clear when this measure will take effect.
Under the ERB, the right to bring a claim for unfair dismissal will become a day-one right for employees, subject to a new modified “light-touch” dismissal procedure applicable in most cases during an initial period of employment, which will be set by regulations but must be between three and nine months. It removes the two-year qualifying period for ordinary unfair dismissal protection by repealing section 108 of the Employment Rights Act 1996 (ERA 1996). Much of the detail will be contained in regulations and is as yet unknown, but this will represent a hugely significant change in the unfair dismissal landscape. To allow for full consultation and a substantial period for employers to prepare and adapt, the unfair dismissal reforms will take effect no sooner than autumn 2026.
In November 2024, proposed amendments to the ERB were published which are being considered by the Public Bill Committee. A government amendment will allow the Secretary of State to specify a cap on the compensatory award for employees unfairly dismissed during the initial period of employment provided for in the ERB.
Employee representative bodies and trade unions have long condemned the use of zero hours contracts as a means of abusing vulnerable, low-income workers, and providing no job security, rights or guaranteed income. There is very limited protection for workers on such contracts. The ERB will introduce a duty on employers to offer a guaranteed hours contract that reflects the hours qualifying workers regularly work over a reference period (to be specified in regulations, but the government suggested in the Next Steps paper that in its view it should be 12 weeks). The ERB also places a duty on employers to provide reasonable notice of shifts, with workers being entitled to compensation if their shift is cancelled, moved or curtailed at short notice.
On 21 October 2024, the government published a consultation on the application of the zero hours contracts provisions to agency workers. The consultation, which closed on 2 December 2024, explored who should be responsible for offering guaranteed hours to eligible workers: the agency or the hirer. The government notes that a difficulty of making agencies responsible is that they have little or no control, since the demand for hours is largely dictated by hirer. Hirers would, therefore, be in a better position to forecast and manage the flow of work. However, requiring hirers to offer guaranteed hours might effectively make them the agency worker’s employer.
In November 2024, proposed amendments to the ERB were published which are being considered by the Public Bill Committee. Substantial government amendments were put forward in relation to zero hours and “low hours” contracts, including new requirements for employers to take reasonable steps to ensure that workers are given specified information in relation to their rights to guaranteed hours during an “initial information period” and to give workers a notice where they consider an exception to the duty to make a guaranteed hours offer applies, or where a guaranteed hours offer that has been made is treated as having been withdrawn.
A draft Equality (Race and Disability) Bill (Race and Disability Bill) was announced in the King’s Speech 2024, to be led by the Government Equalities Office (GEO). It will be published in draft form for consultation and deliver Labour’s manifesto commitment to “enshrine the full right to equal pay in law” for ethnic minorities and disabled people. There is expected to be significant consultation on the draft Race and Disability Bill and so it is anticipated that it will progress more slowly than the ERB.
The Race and Disability Bill will tackle two main issues:
Enshrine in law the full right to equal pay for ethnic minorities and disabled people. This will make it easier for them to bring unequal pay claims, given the existing barriers when bringing pay discrimination claims on the grounds of ethnicity or disability.
Introduce mandatory ethnicity and disability pay reporting for employers with 250 or more employees. This will help to close the ethnicity and disability pay gaps, enabling employers to constructively consider why they exist and how to tackle them.
The Next steps paper also states that the government will create a new regulatory enforcement unit for equal pay.
The Neonatal Care (Leave and Pay) Act 2023 received Royal Assent in May 2023 and was expected to come into force in April 2025 under the previous Conservative government. The government has confirmed this will come into effect on 6 April 2025. HMRC has published a policy paper on the tax treatment of statutory Neonatal Care Pay (see HMRC: Income Tax: tax treatment of Statutory Neonatal Care Pay). The Act will introduce statutory neonatal leave and pay for up to 12 weeks for parents of babies requiring neonatal care, which must be taken within 68 weeks of birth.
The Plan to Make Work Pay stated that a new “right to switch off” would be introduced, providing workers with the right to disconnect from work outside of working hours and not be contacted by their employer. This would follow similar models to those that are already in place in Ireland and Belgium, giving workers and employers the opportunity to have constructive conversations and work together on bespoke workplace policies or contractual terms that benefit both parties.
There is nothing on this new right in the ERB, and in the Next steps paper, the government confirmed that it would take forward the right to switch off through a statutory Code of Practice. It is expected that a consultation on the new code of practice will be issued in 2025.
Gender identity is a highly charged issue with polarised views about, on the one hand, a transgender person’s right to have their identity recognised, and on the other hand, so-called “gender critical beliefs” that a person’s sex is an immutable biological fact and that someone’s gender is different from their sex.
Recent case law has recognised gender critical beliefs as being capable of protection under the Equality Act 2010 (EqA 2010) as a philosophical belief (Bailey v Stonewall and others ET/2202172/2020). This provides scope for conflict with other protected characteristics under the EqA 2010, including the protected characteristic of gender reassignment (Fischer v London United Busways Ltd ET/2300846/2021), and poses a challenge for employers who are responsible for preventing discrimination and harassment in the workplace. In For Women Scotland Ltd v Scottish Ministers, the Inner House of the Court of Session confirmed that the definition of “woman” in section 212(1) of the Equality Act 2010 includes trans women with a gender recognition certificate. The case has been appealed and was heard by the Supreme Court on 26 and 27 November 2024.
In May 2024, the Minister for Women and Equalities issued a “call for input” seeking examples of policies or guidance issued by public bodies, or those that advise public and private organisations, which might wrongly suggest that people without a gender recognition certificate (GRC) have a legal right to access single-sex spaces and services according to their self-identified gender. The call for input on incorrect guidance on single-sex spaces closed on 26 June 2024.
Modern workplaces are increasingly receptive to and reliant on tools powered by artificial intelligence (AI) such as machine learning, GenAI and automated decision-making to perform certain human resources and employee management functions. In addition, the development of GenAI applications, which can be used to perform a variety of work-related tasks, means that AI is more accessible to the workforce than in the past.
In terms of reform in this area, the government’s Next Steps paper, promised that a consultation would be issued on how to implement measures on surveillance technologies and negotiations with trade unions and staff representatives.
Prior to this, the King’s speech, which was delivered in July 2024, announced that the government:
“… will seek to establish the appropriate legislation to place requirements on those working to develop the most powerful artificial intelligence models”.
Labour’s manifesto (Labour: Change), published in June 2024, promised that Labour would create a new Regulatory Innovation Office, bringing together existing functions across government, to help regulators update regulation and to co-ordinate issues that span different sectors, as it considers that regulators are currently ill-equipped to deal with the dramatic development of new technologies. It also promised to ensure the safe development and use of AI models by introducing binding regulation on the companies developing the most powerful AI models.
Labour’s Plan to Make Work Pay, noted that new technologies such as AI have the potential for positive change, including boosting wages, improving productivity and empowering workers. However, given the risks posed, Labour’s approach will be to protect good jobs and ensure good future jobs. It plans to put in place appropriate rights and protections to keep pace with technological change, while safeguarding against discrimination. At a minimum, Labour stated that it will ensure that proposals by employers to introduce surveillance technologies will be subject to consultation and negotiation, with a view to reaching agreement with trade unions or elected staff representatives. This would not override the provisions of any collective agreement relating to surveillance.
Labour’s New Deal green paper, which was first published in September 2021, had previously stated that proposals by an employer to introduce surveillance technologies would be subject to consultation and agreement by trade unions or elected staff representatives, although it was subsequently reported that this new “right” could be implemented by way of best practice advice or secondary legislation, in a perceived watering down of the original pledge.
The EU is taking a more interventionist approach than the UK. A new Regulation, the EU AI Act, was formally adopted by the Council of the EU on 21 May 2024. The EU AI Act applies to public and private actors inside and outside the EU if the AI system affects individuals in the EU, and categorises AI systems into risk levels.
The Platform Workers Directive entered into force on 1 December 2024. Member states will have two years to incorporate the provisions of the Directive into their national legislation. The Directive provides new rights aimed at promoting transparency, fairness and accountability in algorithmic management used in platform work.
Due to the increasing use of AI in the workplace, there is a greater need to assess and manage the associated risks. In March and November 2024, new guidance was published by the government and the ICO specifically aimed at AI use in the HR and recruitment sectors. There are several actions that an employer can take to mitigate the risks, such as undertaking risk assessments and carrying out due diligence with suppliers of AI systems.
From 31 December 2024, the sponsor licence guidance was updated to prohibit Skilled Worker sponsors from passing on the cost of the sponsor licence fee or associated administrative costs or the Certificate of Sponsorship (CoS) fee (for CoS assigned on or after 31 December 2024). Back to the top
Further Information
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
This month we look at when a whistleblowing claim may be relevant...
News & Views
Employment Law General Update – July 2024
Employment,
26th July 2024
Employment Law
This month we bring you a brief summary of the employment, pensions and immigration highlights of the King’s Speech, a look at new guidance from the EHRC on job advertising and how not to fall foul of the legislation, with a particular reference to the protected characteristic of ‘sex’. We also have a looking at the reasons and recommendations for a Seasonal Worker Scheme and consider the results of the Co-Op’s first pay gap report considering the socioeconomic background of workers.
Discrimination: EHRC updates its guidance on discriminatory adverts
Immigration: MAC publishes review of the Seasonal Worker visa
Pay Disparity: Co-op publishes socioeconomic pay gap report
The King’s Speech 2024: Employment, Pensions and Immigration
His Majesty, King Charles III, has set out the government’s priorities and proposed policies for the next parliamentary session at the State Opening of Parliament, which took place on 17 July 2024.
This includes 40 legislative proposals to be addressed in the 2024–2025 parliamentary session. In his speech, King Charles explained that the government’s ‘legislative programme will be mission led and based upon the principles of security, fairness and opportunity for all’.
This King’s Speech 2024 focuses on improving the living standards of working people through economic growth and taking the ‘brakes off Britain’. A major employment announcement came in the form of the Employment Rights Bill, as the government commits to deliver its ‘Plan to Make Work Pay: Delivering a New Deal for Working People’ and to legislate to ban zero-hour contracts, end fire and rehire practices, and introduce certain employment rights from day one. The government will also work on delivering a new Draft Equality (Race and Disability) Bill, which will enshrine the full right to equal pay for ethnic minorities and disabled people in law. The Skills England Bill will be introduced to seek to understand national and local skills needs via establishment of a new body, ‘Skills England‘. The Skills England Bill will also establish a new partnership with employers and reform the apprenticeship levy.
Pensions
The speech contained the announcement of a new Pensions Schemes Bill, stating, ‘Bills will be brought forward… to strengthen pensions investment‘. The Bill aims to increase the amount available for pension savers and states it could help an average earner, who saves over their lifetime in a defined contribution scheme, to have over £11,000 more in their pension pots with which to secure their retirement income.
Immigration
The speech also covered the introduction of the new Border Security, Asylum and Immigration Bill which seeks to ‘modernise‘ the asylum and immigration system and strengthen and secure the border.
Discrimination: EHRC updates its guidance on discriminatory adverts
The Equality and Human Rights Commission (EHRC) has updated its guidance on discriminatory adverts. The main updates are to the section ‘When is an advert which restricts a job or service to particular groups unlawful’. The guidance now includes examples in relation to an ‘occupational requirement’ under Schedule 9 of the Equality Act 2010 and where an occupational requirement applies, the employer must make sure that it is objectively justifiable.
Guidance in relation to the protected characteristic of ‘sex’ now states that ‘sex’ means a person’s legal sex as recorded on their birth certificate or their Gender Recognition Certificate (GRC). This means that a sex-based occupational requirement that an applicant is a woman, as is common within specialist support services for women, such as rape counselling, will include women who are recorded female at birth and also transgender women who have obtained a GRC. The guidance notes, however, that Schedule 9 of Equality Act 2010 also permits an occupational requirement to exclude transgender persons where it is objectively justified, and this can include people who have obtained a GRC. It states that a ‘sex-based’ occupational requirement to be a woman under Schedule 9 cannot include transgender women who have not obtained a GRC, as they do not have legal status as women under Equality Act 2010.
Immigration: MAC publishes review of the Seasonal Worker visa
The Migration Advisory Committee (MAC) has published its review of the Seasonal Worker visa, which sets out the reasons for having a Seasonal Worker Scheme, how the scheme works, the economic and social impact of the scheme, the impact of the scheme on employers, the welfare issues that arise for the workers, and recommendations based on five key themes. The report considers the call for evidence that ran from June–October 2023, stakeholder engagement, and both internal and external research.
Pay Disparity: Co-op publishes socioeconomic pay gap report
The Co-op has become the first retailer to publish a pay gap report based specifically on socioeconomic background. The report collected data submitted voluntarily from 48% of its 57,000 employees, finding a mean pay gap of 5.2% between those of a higher and of a lower socioeconomic background. Employees from a lower socioeconomic background are also less likely to progress into more senior positions, according to the data.
As a result of the findings, Co-op has ‘doubled down’ on its Social Mobility Plan, including campaigning for the government to make socioeconomic background a protected characteristic under the Equality Act 2010. Co-op has also set a target of collecting 80% of socioeconomic employee data for the next 12 months. In addition to the main report, Co-op also published a one-page summary.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
This month we look at when a whistleblowing claim may be relevant...
News & Views
Employment Law General Update – February 2024
Employment,
26th February 2024
Employment Law
Welcome to our February employment law updates covering issues such as: the EHRC’s guidance on menopause in the workplace under the Equality Act, the National Minimum Wage sees latest amendments, over 500 companies are named and shamed for wage non-compliance. Discussions around ‘fire and rehire’ practices intensify, and updates on Skilled Worker and Family Immigration are announced, including changes limiting careworkers’ dependents and ending the Ukraine Family Scheme. Stay informed as we navigate these key developments.
Equality Act: EHRC issues menopause in the workplace guidance for employers
Pay: National Minimum Wage (Amendment) (No 2) Regulations 2024
Pay: 500+ companies named and shamed for not paying National Minimum Wage
Fire and Rehire: DBT publishes response to consultation on code of practice on dismissal and re-engagement
Immigration: Dates announced on Skilled Worker and Family Immigration
Immigration: Statement of Changes HC 556 stops careworkers from bringing dependants and ends Ukraine Family Scheme
Equality Act: EHRC issues menopause in the workplace guidance for employers
The Equality and Human Rights Commission (EHRC) has issued new guidance on menopause in the workplace, setting out employer’s legal obligations under the Equality Act 2010. The new guidance aims to clarify these obligations and provide practical tips for employers on making reasonable adjustments and fostering positive conversations about the menopause. If menopause symptoms have a long term and substantial impact on a woman’s ability to carry out normal day-to-day activities, they may be considered a disability. Under the Equality Act 2010, an employer will be under a legal obligation to make reasonable adjustments and to not discriminate against the worker. Additionally, workers experiencing menopause symptoms may be protected from less favourable treatment related to their symptoms on the grounds of age and sex.
Pay: National Minimum Wage (Amendment) (No 2) Regulations 2024
The draft National Minimum Wage (Amendment) (No 2) Regulations 2024, which are due to come into force on 1 April 2024:
abolish the rate of the national minimum wage for workers who are aged 21 or over (but are not yet aged 23 years) so that workers aged 21 or over will now qualify for the national living wage, rather than a lower national minimum wage rate;
increase the rate of the national living wage for workers who are aged 21 or over from £10.42 to £11.44 per hour;
increase the rate of the national minimum wage for workers who are aged 18 or over (but not yet aged 21) from £7.49 to £8.60 per hour;
increase the rate of the national minimum wage for workers who are under the age of 18 from £5.28 to £6.40 per hour;
increase the apprenticeship rate for workers within SI 2015/621, reg 5(1)(a), (b), from £5.28 to £6.40 per hour;
increase the accommodation offset amount which is applicable where any employer provides a worker with living accommodation from £9.10 to £9.99 for each day that accommodation is provided.
Pay: 500+ companies named and shamed for not paying National Minimum Wage
The Department for Business and Trade (DBT) has named more than 500 companies for not paying national minimum wage to over 172,000 employees. Defaulting employers have been ordered to repay these workers almost £16m to backfill these breaches. This is the 20th list to be published by the government since the introduction of the naming scheme in 2013 under which it publicly ‘names and shames’ employers who fail to pay the minimum wage. The ‘naming and shaming’ scheme was paused from July 2018 until it recommenced in February 2020 in a revised form.
Employers named include major high street brands, including Estee Lauder, Easyjet, Greggs, Wickes and River Island. One employer, Staffline Recruitment Ltd, failed to pay £5,125,270.93 to 36,767 workers.
The businesses named have since paid back what they owe to their staff and have also faced financial penalties of up to 200% of their underpayment. The investigations by His Majesty’s Revenue and Customs (HMRC) concluded between 2015 and 2023.
Fire and Rehire: DBT publishes response to consultation on code of practice on dismissal and re-engagement
The Department for Business and Trade has published a response to the consultation on a draft statutory code of practice on dismissal and re-engagement. The consultation lasted from 24 January 2023 to 18 April 2023 and considered the action to be taken by employers when considering whether to dismiss and re-engage employees. As a result of the consultation, the government has made a number of changes to the draft code.
Changes to the code include:
a change to the sequencing of the code to ensure the sections on information sharing and consultation appear earlier;
the separate lists of information for employers to share located at paragraphs 25 and 33 have been combined;
the requirement for employers to conduct a full re-assessment of plans after information sharing and consultation;
changing the obligation to phase in changes to ‘best practice’;
a reduction in the length of the code and amendments to make it clearer and less technical;
a greater requirement on employers contacting ACAS prior to dismissal and re-engagement.
Immigration: Dates announced on Skilled Worker and Family Immigration
The Minister of State for Legal Migration and the Border, Tom Pursglove MP, has made a Statement to the House of Commons giving more details of the timeline for various aspects of the five-point legal migration plan relating to the Skilled Worker and family migration routes. In terms of new announcements, he confirmed that there will be two sets of Statements of Changes in Immigration Rules, issued on 19 February 2024 and 14 March 2024, and the dates that the changes will come into force for these purposes.
The 19th February 2024 Immigration Rules will come into force on 11 March 2024 and will:
remove the right for care workers and senior care workers to bring dependants
ensure that care providers in England will only be able to sponsor migrant workers if they are undertaking activities regulated by the Care Quality Commission (CQC)
The 14 March 2024 Immigration Rules will:
raise the Skilled Worker general salary threshold from £26,000 to £38,000 (with some exceptions) from 4 April 2024, and remove the 20% going rate discount for occupations on the Shortage Occupation List (being renamed the Immigration Salary List), as well as temporarily add any occupations as recommended by the Migration Advisory Committee to the new Immigration Salary List
raise the minimum income threshold from 11 April 2024 from £18,600 to £29,000 (in due course it will be raised to £34,300 and then £38,700).
Immigration: Statement of Changes HC 556 stops careworkers from bringing dependants and ends Ukraine Family Scheme
The Home Office has issued a new Statement of Changes in Immigration Rules HC 556, along with an Explanatory Memorandum (EM). The Statement makes anticipated changes as regards the dependants of careworkers and senior careworkers in the Skilled Worker/Health and Care visa route, and also makes a number of surprise and immediate changes to the Ukraine Schemes, including ending the Ukraine Family Scheme from 3pm on the 19th February 2024.
Skilled Worker/Health and care visa route
The Statement implements the first part of the Home Secretary’s ‘Five-point plan for Legal Migration’, which seeks to reduce net migration, and removes the possibility for dependent partners and children to apply in the Skilled Worker/Health and Care visa route where the main applicant is applying in, or has leave in either Standard Occupational Code (SOC) codes 6145 (Care worker) or 6148 (Senior care worker). The change will not apply for dependants where the main applicant already has leave in Skilled Worker in either SOC code, or applied for entry clearance or leave in the route on or before 11 March 2024 (and also will not apply where such a main applicant subsequently applies to extend or change employer in either SOC code, or applies for settlement). It will also not apply for children born in the UK.
In addition, sponsors of persons initially applying in either SOC code on or after 11 March 2024 will be required to have Care Quality Commission (CQC) registration and to be currently carrying out a regulated activity. Similar transitional provisions apply as above for further applications by persons who were granted leave under the Rules on or before 10 March 2024 as regards working for a sponsor which does not meet the new requirements.
These changes are effected via amendments to Appendix Skilled Worker, Appendix Skilled Occupations and Appendix Shortage Occupation List of the Immigration Rules. They come into force for applications submitted on and after 11 March 2024. The EM states that the changes are being made ‘in response to high levels of non-compliance and worker exploitation and abuse, as well as unsustainable levels of demand’. It goes on to say that ‘in the year ending September 2023, 83,072 visas were granted for care workers and a further 18,244 visas for senior care workers, comprising 30% of all work visas granted. In addition, there were 250,297 visas granted for work-related dependants, 69% of which were for Health and Care Worker dependants.’
Ukraine Schemes
Closure of the Ukraine Family Scheme
The Statement announces the closure of the Ukraine Family Scheme from 3pm on 19 February 2024. The Ukraine Family Scheme allowed British nationals and those with a qualifying immigration status to sponsor family members. This included immediate and extended family members, as well as the immediate family members of extended family members (e.g. a British national could sponsor a cousin and their children).
Going forwards many people who could have applied under the Ukraine Family Scheme will have to apply under the Homes for Ukraine Sponsorship Scheme instead. This requires an offer of six months accommodation, assessed as suitable by the local authority.
Persons impacted by this change may need advice on alternative immigration options, such as making a human rights claim to join family in the UK.
Reduction in period of leave to 18 months
Ukraine Scheme visa-holders have been receiving three years leave. From 3pm on 19 February 2024 a positive grant of leave will only result in 18 months leave to remain, rather than three years leave. This affects persons who applied before the change in the law and have not yet received a decision on their case.
A limited exception is for unaccompanied minors, who will still receive three years leave, so long as they made their initial hosting application before 3pm on 19 February 2024, even if the local authority check takes place later. Unaccompanied minors who apply after that date will still only receive 18 months leave.
Extension scheme to close on 16 May 2024 except for some children born in the UK
The Ukraine Extension Scheme allows Ukrainians with a time-limited visa in the UK to switch into the Ukraine Scheme, recognising that Ukrainians cannot be expected to return to Ukraine. The deadline to apply has been changed, but it appears that there are currently no plans to increase the 16 May 2024 deadline for the Scheme. This will mean that Ukrainians on other visas, including visit, student, seasonal worker and family visas, will no longer be able to switch into the Ukraine Extension Scheme from that date.
The Statement creates an exception to the closure of the Ukraine Extension Scheme for children born in the UK to a parent who has leave under the Ukraine Scheme. This will come into force on 11 March 2024. The children will receive leave in line with their parent (or if both parents are here, in line with whichever parent’s leave expires last). Such children have been using this scheme informally already, but it is helpful to see a provision in the Rules. Unfortunately, the new provision is silent on what children born outside the UK to a parent with a Ukraine Scheme visa should do.
Additional grounds for refusal
Part 9 of the Immigration Rules sets out general grounds for refusal of immigration applications on character grounds. Only some of those criteria have so far applies to Ukraine Scheme applications and mainly those focused on criminality. The Statement provides that from 3pm on 19 February 2024 additional grounds for refusal will apply, including previous breaches of immigration laws, failures to provide information when required and other general grounds for refusing entry clearance or cancelling permission on arrival. Anecdotally, there have been some cases of arrivals from Ukraine who do not have the right documentation and so this may be a response to that. This does however indicate a tightening up of visa controls for Ukrainians.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
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Employment Law General Update – December 2023
Employment,
15th December 2023
Employment Law
This month we have a plethora of publications and information for you. There are changes to National Living Wage, benefit and pension rates all due in April 2024. Two reports have been published recently looking at pay gaps for those with disabilities and people with different ethnicities, unsurprisingly the news is not positive. Some helpful guidance from the Home Office for employers to ensure they avoid the new raised penalties for employing illegal workers, and the government’s response to the occupational health consultation has been published. Lastly, the CIPD has produced an interesting report on menstruation at work, which is well worth a read to understand how this affects a large proportion of the workforce and what can be done to support women at work.
Wage Updates: National Living Wage to apply to all workers aged 21+ from April 2024
Wage Updates: New benefit and pension rates published for 2024-25
Pay Disparity: TUC publishes latest data on disability pay gap
Pay Disparity: ONS publishes new report on ethnicity pay gaps in the UK
Immigration: Home Office publishes updated Code of Practice on illegal working penalties
Health at Work: Government publishes response to occupational health consultation
Health at Work: CIPD report on menstruation and support at work
Wage Updates: National Living Wage to apply to all workers aged 21+ from April 2024
The government has accepted the Low Pay Commission (LPC) recommendations on National Minimum Wage (NMW) and National Living Wage (NLW) rates to apply from 1 April 2024. The LPC notes that this is the largest ever increase to the minimum wage in cash terms. The National Living Wage will apply to all workers aged 21 and over from 1 April 2024 (previously applying only to those aged 23 and over). The new rates are as follows:
Wage Updates: New benefit and pension rates published for 2024-25
The government has published proposed new benefit and pension rates for 2024 to 2025 including in respect of Statutory Maternity Pay (SMP), Statutory Paternity Pay (SPP), Statutory Adoption Pay (SAP), Statutory Shared Parental Pay (SSPP), Statutory Parental Bereavement Pay (SPBP), Maternity Allowance (MA) and Statutory Sick Pay (SSP). The rates of these benefits are normally increased in April each year in line with the Consumer Prices Index (CPI). The Written Statement to Parliament by the Secretary of State for Work and Pensions, Mel Stride, states that these rates will rise by 6.7% in line with CPI for the year to September 2023 and the new rates for the tax year 2024–2025 will come into effect on 8 April 2024. The DWP policy paper reveals that:
the standard rate for Statutory Maternity Pay (SMP), ie the rate that applies after the first 6 weeks of pay at 90% of the employee’s normal weekly earnings, will increase from £172.48 to £184.03 per week (or be set at 90% of the employee’s weekly earnings if that amount is lower);
the standard rate for Statutory Adoption Pay (SAP), ie the rate that applies after the first 6 weeks of pay at 90% of the employee’s normal weekly earnings, will increase from £172.48 to £184.03 per week (or be set at 90% of the employee’s weekly earnings if that amount is lower);
the rate for Statutory Paternity Pay and Statutory Shared Parental Pay (SPP and SSPP) will increase from £172.48 to £184.03 per week (or be set at 90% of the employee’s weekly earnings if that amount is lower);
the rate for Statutory Parental Bereavement Pay will increase from £172.48 to £184.03 per week (or be set at 90% of the employee’s weekly earnings if that amount is lower);
the rate for Maternity Allowance (MA) will increase from £172.48 to £184.03 per week (or be set at 90% of the individual’s weekly earnings if that amount is lower);
the rate of Statutory Sick Pay (SSP) will increase from £109.40 to £116.75 per week;
the amount of the weekly lower earnings limit, that applies to National Insurance contributions, below which employees are not entitled to SMP, SPP, SAP, SSPP and SSP (but remain entitled to Maternity Allowance) will remain at £123.
Pay Disparity: TUC publishes latest data on disability pay gap
The Trades Union Congress (TUC) has published new analysis of the pay gap between non-disabled and disabled workers. According to data from the TUC, the pay gap is currently higher than it was 10 years ago, with non-disabled workers earning approximately 14.6% more than disabled workers. That makes for a pay difference of £3,460 a year for someone working a 35-hour week – and means that disabled people effectively work for free for the last 47 days of the year. Disabled women face an even bigger pay penalty of 30% (£3.73 an hour, £130.55 a week, or £6,780 a year) less than disabled men – effectively double discrimination. The research also shows that the disability pay gap persists for workers for most of their careers. At age 25 the pay gap is £1.73 an hour hitting a high of £3.18 an hour, or £111.30 a week, for disabled workers aged 40 to 44.
The analysis looked at pay data from across the country and found disability pay gaps in every region and nation of the UK. The highest pay gaps are in Wales (21.6% or £2.53 an hour), followed by the South East (19.8% or £2.78 an hour) and the East of England (17.7% or £2.30 an hour).
The research found that disability pay gaps also vary by industry. The biggest pay gap is in financial and industrial services, where the pay gap stands at a huge 33.2% (£5.60 an hour).
Not only are disabled workers paid less than non-disabled workers, they are also more likely to be excluded from the job market. Disabled workers are twice as likely as non-disabled workers to be unemployed (6.7% compared to 3.3%). And the analysis shows disabled BME workers face a much tougher labour market – one in 10 (10.4%) BME disabled workers are unemployed compared to nearly one in 40 (2.6%) white non-disabled workers.
The analysis shows that disabled workers are more likely than non-disabled workers to be on zero-hours contracts (4.5% to 3.4%). And disabled BME women are nearly three times as likely as non-disabled white men (6.0% to 2.2%) to be on these insecure contracts.
The TUC says zero-hours contracts hand the employer total control over workers’ hours and earning power, meaning workers never know how much they will earn each week, and their income is subject to the whims of managers. The union body argues that this makes it hard for workers to plan their lives, look after their children and get to medical appointments. And it makes it harder for workers to challenge unacceptable behaviour by bosses because of concerns about whether they will be penalised by not being allocated hours in future.
The report goes on to discuss how Labour’s New Deal for Working People would affect workers’ rights.
Pay Disparity: ONS publishes new report on ethnicity pay gaps in the UK
The Office for National Statistics (ONS) has published a new report on ethnicity pay gaps in the UK for 2022 which reveals, in particular, that Black, African, Caribbean or Black British employees continue to earn less median gross hourly pay than White employees, which has been consistent since 2012.
The main points from the report are that in the UK in 2022:
Black, African, Caribbean or Black British employees earned less (£13.53) median gross hourly pay than White employees (£14.35)
between 2012 and 2022, Black, African, Caribbean or Black British employees were the only ethnicity group to be consistently earning less than White employees
country of birth had an impact on how much employees earned: UK-born Black, African, Caribbean or Black British employees earned more (£15.18), while non-UK-born Black British employees earned less (£12.95) when compared with UK-born White employees (£14.26), a pay gap of negative 6.5% and 9.2% respectively
after holding personal and work characteristics constant, to provide an adjusted pay gap based on a like-for-like comparison, UK-born White employees earn more on average than most ethnic minority employees
when adjusting for pay-determining characteristics (e.g. occupation or where the job is), the pay gap narrowed and in some instances reversed, for example:
UK-born Asian or Asian British employees earned on average 11.9% more than UK-born White employees, but after adjustment it was estimated that they earned 1.9% less
UK-born Black, African, Caribbean or Black British employees, move from earning 6.5% more to earning 5.6% less compared with White employees
Other findings included that:
in relation to Mixed or Multiple ethnic groups, White and Black Caribbean employees (a Mixed ethnic group) had the lowest median gross hourly earnings (£11.75) in 2022, compared with White British employees (£14.42). This was a pay gap of 18.5%, the opposite of what was seen for the overall Mixed or Multiple ethnic employees
Asian or Asian British employees in 2022 earned more than White employees, with a pay gap of negative 3.3%. However, based on the more detailed ethnicity classification of Asian or Asian British employees in England and Wales, Chinese and Indian employees had higher earnings compared with White British employees, while Bangladeshi and Pakistani employees earned less compared with White British employees
a breakdown of White employees showed that the highest earnings were reported by White Irish employees (£20.20 median gross hourly pay), which represents a pay gap of negative 40.1% relative to White British employees. This suggests that White Irish employees are in higher-paid occupations
the main factors that explain most differences between the groups were: occupation, highest qualification level, geography, age and sex
Immigration: Home Office publishes updated Code of Practice on illegal working penalties
The Home Office has published a new draft Code of Practice on the civil penalty schemes for employers (preventing illegal working). The draft is an update to the version published in March 2022 and will be the sixth version of the code. This latest version of the code will be applied to all right to work checks from 22 January 2024 including where a follow-up check is required to maintain a statutory excuse, even if the initial check was undertaken using a previous version of the code which was current at the time. There will be a sixty thousand pound (£60,000) (up from twenty thousand pounds (£20,000)) maximum penalty applied to any employer found to have been employing a person who is disqualified from working by reason of their immigration status in the UK.
The advise is that employers have a key role to play in preventing illegal working in the UK. They do this by carrying out right to work checks on people before employing them, to make sure they are allowed to do the work in question. If you are in any doubt, please contact us so that we can help you avoid a penalty.
Health at Work: Government publishes response to occupational health consultation
The Department for Work and Pensions has published its response to the consultation it held on increasing employer use of Occupational Health Services entitled ‘Occupational Health: Working Better’. The government has evaluated the responses to the consultation and opted to introduce a voluntary minimum framework for quality occupational health provision and explore new voluntary workplace health and disability standards, examining options for a new small- and medium-sized enterprise group purchasing framework, and learning from the existing Workforce Expansion scheme to develop a long-term strategic occupational workforce approach.
Health at Work: CIPD report on menstruation and support at work
The Chartered Institute of Personnel and Development (CIPD) has published the findings from its survey of over 2,000 women, aged 18–60. The report, CIPD: Menstruation and support at work looks at the prevalence and type of menstruation symptoms, their impact on work, menstrual health conditions and the impact these have on the ability of employees to stay in and progress at work. It highlights the difference workplace support can make and the types of adjustments that are seen to be most helpful when managing symptoms at work.
This detailed report provides an eye-opening (and at times quite shocking) insight into the extent to which women experience symptoms from menstruation (i.e. periods) and from menstrual health conditions, and the impact these have on them at work.
The report is helpful to both employers and employees in demonstrating the scale of the problem and the need for an open and supportive workplace—this may form part of the employer’s work on employee wellbeing or ESG issues.
Managers need to be educated and trained about menstruation and menstrual health and the employer should encourage a culture where women feel comfortable discussing their symptoms and the impact these have on them. This would benefit everyone because it would reduce misunderstandings about absences, reduce the risk of discrimination and, in time, hopefully help to reduce gender pay gaps.
In the report the CIPD explains that:
‘Employers offering appropriate support in the workplace can help people feel included, offer dignity and reduce embarrassment. It can increase employee attendance, but also legitimise absence where this is needed. It can increase employee performance, engagement, retention and employer branding.
Employers can improve employee experience by creating environments and work cultures that are menstruation friendly, and providing support for menstrual health conditions that are underpinned by the principles of compassion, empathy and inclusivity.’
The introduction to the report explains that:
the survey included over 2,000 women, aged 18-60, who currently menstruate, or have previously menstruated, while in employment;
‘menstruation’ refers to the monthly period in which bleeding occurs;
‘menstrual health’ has a broader meaning and recognises that while menstruation is a natural bodily function, some people experience physical and/or mental health symptoms and challenges linked to menstruation. These range from painful, heavy and/or irregular periods and premenstrual syndrome (PMS) through to formally diagnosed chronic health conditions such as endometriosis, adenomyosis, polycystic ovary syndrome (PCOS) and premenstrual dysphoric disorder (PMDD). Some of these conditions can have significant impacts on daily life and can also affect fertility;
while the report predominantly references women in relation to menstruation and menstrual health, the CIPD recognises that there is also an impact on some transgender and non-binary individuals who will require support and flexibility relevant to their needs.
What were the key findings?
Prevalence of symptoms
The responses to the survey showed that:
57% of those responding currently menstruate each month and 92% say they have previously menstruated each month while in employment;
79% of respondents have experienced menstruation symptoms, with the most common being abdominal cramps (60%), feeling irritable (52%), fatigue (49%), bloating (49%) and low mood (47%), but there are a wide range of symptoms;
those aged 18–34 were more likely to experience a high proportion of the symptoms;
15% have a menstrual condition such as endometriosis, PCOS, PMDD or fibroids.
Impact at work
In relation to how these symptoms impacted on people at work, the report states that:
69% of those who have experienced symptoms from menstruation report that they have had a negative impact at work, rising to 81% for people with a diagnosed menstrual condition;
the kinds of effects people have experienced are many and varied, but the main ones are feeling more tired (79%), working when they haven’t felt well enough to do so (61%) and feeling less able to concentrate (63%);
53% had been unable to go to work at some point because of menstruation symptoms and for 4% this was the case every month;
49% never tell their manager that their absence is related to their menstrual cycle;
20% always tell their manager that their absence is related to their menstrual cycle;
employees are less likely to tell their manager if their manager is male;
reasons given for not telling their manager the real reason included that they felt the problem would be trivialised (45%), feeling embarrassed (43%), that they prefer to keep the matter private (42%), that there’s too much stigma/ taboo (35%), that the employer/ manager wouldn’t be understanding (24%), having a male manager (24%) and worried the manager would think that performance would be affected (19%);
people are more likely to feel supported by colleagues than by their employer or manager (41%, compared with 21% and 26%, respectively);
12% of employees report that their organisation provides support for menstruation and menstrual health and 67% said there is no support available;
the most common support available is free period products (18%), paid sick leave (15%) and paid time off for medical appointments (12%);
the types of support that respondents said would be most helpful included free period products (53%), planned flexible working (44%), more breaks when needed (41%), paid time off for medical appointments (39%), paid sick leave (32%), access to a rest room (e.g. lounge area) (31%), adjustments to work tasks (28%), a better equipped bathroom (e.g. with a shower) (27%), clothing change (25%), and free hot water bottles (23%).
The wider impact of menstruation at work
The findings of the report include that:
6% of respondents say that menstrual symptoms have impacted them in a way which has led to formal action at work;
7% feel they have been discriminated against at work because of menstrual symptoms (those with a male manager (8%) are more likely to say this than those who have a female manager (4%));
a lack of support has promoted 8% to leave or consider leaving their jobs;
12% say that their menstrual symptoms have had a negative impact on their career progression;
workplace support makes a difference with those who work in organisations without support more likely to say that their symptoms had a negative impact on their career progression (14% compared with 5% who work for organisations with support).
Recommendations and good practice
The CIPD makes the following recommendations for supporting menstrual health in the workplace:
build an open and inclusive culture where menstruation is normalised thorough supportive discussions and open dialogue;
create awareness and tackle stigma;
develop a support framework;
train and support people managers.
For full details of how these can be implemented, see pages 13–14 of the report.
In addition to the recommendations above, organisations can offer specific support for employees experiencing menstrual health conditions, e.g.:
embedding good people management practices;
creating the climate for successful sharing of information;
ensuring employees have easy access to information and support;
managing absence and performance management with compassion and flexibility;
providing access to, and training in, work adjustments.
For further information on ways to implement these in the context of menstrual wellbeing and health, see pages 14–15 of the report.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
This month we look at when a whistleblowing claim may be relevant...
News & Views
Employment Law General Update – November 2023
Employment,
22nd November 2023
Employment Law
This month’s employment law updates cover various critical issues. The Work and Pensions Committee seeks input on statutory sick pay, while the Government has published its response to the EU employment law consultations. The Home Office updates illegal working penalty guidelines, and we have Government guidance on the handling labour unions before strikes. The TUC’s data on the disability pay gap underscores the importance of inclusivity, and a WoRC report examines systemic factors in the exploitation of migrant workers. Stay informed for compliance in this evolving employment landscape.
Sick Pay: Work and Pensions Committee publishes call for evidence on statutory sick pay
Immigration: Home Office publishes updated code of practice on illegal working penalties
Trade Unions: Government publishes guidance on issuing work notices ahead of strike action
Disability: TUC publishes latest data on disability pay gap
Immigration: WoRC report looks at systemic drivers of UK migrant worker exploitation
Sick Pay: Work and Pensions Committee publishes call for evidence on statutory sick pay
The Work and Pensions Committee has issued a call for evidence on statutory sick pay (SSP), requesting the public views and ability to submit evidence until Friday, 8 December 2023. The Work and Pensions Select Committee calls for this inquiry to assess the existing ‘effectiveness of SSP in supporting claimants and if SSP should be reformed to better enable a recipient’s recovery and return to work’.
Retained EU Employment Law: Government response to consultation and new draft regulations available
Retained EU Employment Law consultation response
The government has officially released its response to the ‘Retained EU Employment Law’ consultation, addressing proposed reforms within the Working Time Regulations 1998 (WTR) related to annual leave, holiday pay calculations, and record-keeping requirements. Additionally, it responded to the consultation concerning the annual leave entitlement calculation for part-year and irregular hours workers in light of the Supreme Court’s Harpur Trust v Brazel 2022 ICR 1380 decision.
The government has proposed the introduction of a ‘rolled-up’ holiday pay system for irregular hours and part-year workers and allow for an annual leave accrual method of 12.07% of hours worked for these groups. This means that instead of receiving a separate payment when taking annual leave, certain workers, specifically those with irregular hours or part-year employment (which may include agency workers), will get an extra amount added to their regular pay.
However, the government has decided not to proceed with the idea of creating a single annual leave entitlement that combines the ‘basic’ and ‘additional’ annual leave entitlements into a single 5.6-week entitlement (i.e. four weeks required by EU law and the 1.6 weeks mandated by the Working Time Regulations). Instead, they want to maintain two separate “pots” of annual leave with two different pay rates. This means that workers will still receive four weeks of leave at their normal pay rate and 1.6 weeks at a basic pay rate.
Additionally, the government plans to pass laws to make it clearer what should be included in the calculation of normal remuneration for holiday pay. They are also considering more significant changes to how holiday pay rates are determined.
In response to the Harpur Trust ruling, the initial proposal suggested using a 52-week reference period to calculate annual leave entitlement. However, many people raised concerns about the extra work this would create and the challenges it posed for workers whose hours changed from year to year or for those in their first year of employment.
To keep things simpler, the government has opted for a different approach. They will use an accrual method to figure out annual leave entitlement, where workers get 12.07% of the hours they’ve worked in a specific pay period. This method was commonly used before the Harpur Trust decision and better reflects the hours a worker has actually worked in the current year. For other workers in their first year of employment, things will remain the same. They will continue to accrue annual leave by receiving 1/12th of their statutory entitlement on the first day of each month and adjusting it accordingly.
The response also mentions that the government will maintain certain EU case laws to protect workers’ rights regarding carrying over unused annual leave when they can’t take it due to maternity, family-related leave, or being sick. They will also introduce a way for irregular hours and part-year workers to accrue annual leave when they’ve had periods of maternity, family-related leave, or sickness.
Additionally, the government will proceed with changes to record-keeping requirements in the Working Time Regulations (WTR). This change clarifies that businesses do not have to keep daily records of how many hours each worker works. This clarification aims to address concerns that a previous ruling by the European Court of Justice might have required employers to track the exact daily hours worked by each employee, rather than maintaining adequate and proportionate records based on the workplace and working patterns.
Regarding TUPE (Transfer of Undertakings), the government will move forward with its proposal to simplify consultation obligations during a transfer. Small businesses (with fewer than 50 employees) will be allowed to directly consult with employees if there are no existing employee representatives, avoiding the need to organize elections for new representatives. Additionally, businesses of any size can directly consult with employees (if there are no existing representatives) when a transfer involves fewer than ten employees.Top of Form
Draft Regulations
The Department of Business and Trade has published the draft Equality Act 2010 (Amendment) Regulations 2023. The draft SI restates some protections in relation to pregnancy, maternity and breastfeeding, indirect discrimination, access to employment and occupation, equal pay and the definition of disability which would otherwise be lost from 1 January 2024 under the Retained EU Law (Revocation and Reform) Act 2023 (REUL(RR)A 2023).
These draft regulations are proposed to reproduce in domestic law certain interpretive effects of retained EU law which, under REUL(RR)A 2023, will cease to apply to the UK statute book after the end of 2023. This will mean that, in the areas covered by this instrument, the law will continue to have the same effect after the end of 2023 as it did before. They are due to come into force on 1 January 2024.
The draft Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 will amend the Working Time Regulations 1998 (in relation to record-keeping, paid holiday for irregular hours workers and part-year workers, normal pay, and the carrying forward of paid holiday) and the Transfer of Undertakings (Protection of Employment) Regulations 2006 (in relation to information and consultation obligations on small businesses for transfers on or after 1 July 2024) and revoke the European Cooperative Society (Involvement of Employees) Regulations 2006. They are due to come into force on 1 January 2024.
Immigration: Home Office publishes updated code of practice on illegal working penalties
The Home Office has published a new draft Code of Practice on the civil penalty schemes for employers (preventing illegal working). The draft is an update to the version published in March 2022 and will be the sixth version of the code. This latest version of the code will be applied to all right to work checks from 22 January 2024 including where a follow-up check is required to maintain a statutory excuse, even if the initial check was undertaken using a previous version of the code which was current at the time.
The draft code has been amended further to the issue of draft Statutory Instruments (SIs) which will raise the starting point for penalties to £45,000 for a breach (if there are no previous breaches in the last three years) and £60,000 for repeated breaches. The draft codes will come into force at the same time as the related SIs, which are: (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2023 and the Immigration (Restrictions on Employment and Residential Accommodation) (Codes of Practice) (Amendment) Order 2023. These are each stated to come into force on 22 January 2024, or, if later, on the twenty-first day after the day on which it is made. However, the code assumes 22 January 2024 as a commencement date.
Trade Unions: Government publishes guidance on issuing work notices ahead of strike action
The Department of Business and Trade has published guidance for employers, trade unions and workers on issuing work notices ahead of strike action. Work notices, which were introduced under the Strikes (Minimum Service Levels) Act 2023, allow employers to require a workforce to meet minimum service levels for an upcoming strike period where the trade union has given notice to the employer of the strike and the employer provides a service covered by minimum service level regulations.
The new guidance is designed to be read alongside the government’s range of guidance on industrial action which can be found here.
The guidance covers:
the purpose of a work notice and the steps for preparing it;
considerations when preparing a work notice;
considerations upon deciding to issue a work notice;
consulting with trade unions;
guidance on producing a work notice;
guidance on notifying workers of a notice;
duties on workers and trade unions following issue of a work notice;
Disability: TUC publishes latest data on disability pay gap
The Trade Union Congress (TUC) has published new analysis [TUC slams “zero progr<a id=”back”></a>ess” on disability pay gap in last decade | TUC] of the pay gap between non-disabled and disabled workers. According to data from the TUC, the pay gap is currently higher than it was 10 years ago, with non-disabled workers earning approximately 14.6% more than disabled workers.
The key findings of the analysis include:
the pay gap is only marginally lower than it was when the TUC launched disability Pay Gap Day in 2016/17;
disabled women face the biggest pay penalty with non-disabled men earning an average of 30% more;
the industry with the biggest pay gap is financial and industrial services which currently stands at 33.2%;
disabled workers are twice as likely to be unemployed than non-disabled workers;
one in 10 BME disabled workers are unemployed compared to nearly one in 40 white non-disabled workers;
disabled workers are more likely to be on zero-hours contracts than non-disabled workers.
The TUC has called for action from the government to put an end to discrimination against disabled workers in the labour market and has backed Labour’s New Deal for Working People.
Immigration: WoRC report looks at systemic drivers of UK migrant worker exploitation
The charity Work Rights Centre (WoRC) has published a report which looks at what lies behind increasing reports of migrant worker exploitation in the UK, particularly in certain sectors such as health and care. Drawing on 40 case studies, interviews with caseworkers, and policy analysis, the report identifies the post-Brexit work sponsorship system and piecemeal/weak labour enforcement as two key systemic drivers. It makes a number of recommendations, including reforms to the work sponsorship system (replacing employer sponsorship entirely, or alternatively a range of reforms to the sponsorship system to facilitate protection of sponsored migrants against exploitation), increasing protections for all workers (including establishing a Single Enforcement Body for all labour rights, giving protection against unfair dismissal from the first day of employment and instituting secure reporting of exploitative practices), and implementing a migrant worker welfare strategy (including the creation of an independent Migrant Commissioner role).
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
This month we look at when a whistleblowing claim may be relevant...
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Employment Law General Update – September 2023
Employment,
21st September 2023
Employment Law
We bring you an update of some key pieces of information affecting employment law, and potentially employers, published over the last two months to help keep you up to date.
Immigration: Number of Home Office-approved sponsor employers, by visa route, as at 13 September 2023
Economic Crime: Lords to drop Anti-Money Laundering provisions in Economic Crime and Corporate Transparency Bill
Trade Unions: TUC to report government to ILO over Strikes (Minimum Service Levels) Act 2023
Workers’ Rights: TUC launches AI taskforce to help fill legislative gap
Data Protection: ICO seeks views on first phase of draft biometric data guidance
Immigration: Number of Home Office-approved sponsor employers, by visa route, as at 13 September 2023
The Home Office has published the number of approved employer sponsors, according to visa route, as listed on the Home Office’s register of licensed sponsors on the specified date. As at 13 September 2023, Skilled Worker sponsors account for the majority of employers (80.70%). 10.75% of sponsors have a Global Business Mobility: Senior or Specialist Worker licence, and the remaining 13 work routes account for the remaining (8.55%).
Economic Crime: Lords to drop Anti-Money Laundering provisions in Economic Crime and Corporate Transparency Bill
Peers in the House of Lords on 11 September 2023 sought to strike a compromise with the Commons over controversial provisions in economic crime legislation by curtailing a new corporate criminal offence while also limiting the size of companies caught in its net. Peers dropped plans by unanimous consent to expand corporate criminal liability in the Economic Crime and Corporate Transparency Bill to include a new offence making it a crime for companies that fail to prevent money laundering. But members of Parliament’s upper chamber also voted 211-185 in favour of exempting only the very smallest of companies from a government offence holding companies criminally liable for failing to prevent fraud.
Trade Unions: TUC to report government to ILO over Strikes (Minimum Service Levels) Act 2023
The Trades Union Congress (TUC) has announced that it is reporting the government to the International Labour Organization (ILO) over the Strikes (Minimum Service Levels) Act 2023. The TUC has stated that the legislation falls far below international legal standards and there are concerns that the legislation could be in breach of the UK-EU trade agreement. The ILO has already warned the government that existing and prospective legislation should be in line with ILO standards.
Workers’ Rights: TUC launches AI taskforce to help fill legislative gap
The Trades Union Congress (TUC) has announced the launch of a new AI taskforce as part of its ‘urgent’ call for new legislation safeguarding workers’ rights. The taskforce has been launched following warnings that the UK is ‘way behind the curve’ on AI regulation, with many EU and other countries already drafting legislation specific to AI in the workplace. The taskforce will consist of leading specialists in law, technology, politics, HR and the voluntary sector with the primary purpose of filling any current legislative gaps in UK employment law around AI regulation at work. The taskforce will aim to publish an expert-drafted AI and Employment Bill in the early part of 2024.
Data Protection: ICO seeks views on first phase of draft biometric data guidance
The Information Commissioner’s Office (ICO) has published the first phase of draft biometric and data guidance, which explains how data protection law applies when biometric data is used in biometric recognition systems. The consultation on the first phase will close on 20 October 2023, with the second phase opening for a call of evidence in 2024.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
This month we look at when a whistleblowing claim may be relevant...
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Employment Law General Update – June 2023
Employment,
27th June 2023
Employment Law
This month we bring you updates on government reforms to employment law and the ping-pong battle over which laws shall be retained following Brexit; which companies are failing to pay national minimum wage, a review in diversity and goals for the 4 day week for political parties to endorse; our UK strike laws are being critiqued and we will soon know which occupations we are most lacking in the UK.
Brexit: Government consults on reforms to working time rules, holiday pay and TUPE
Brexit: Lords put further amendments back to Commons on REULRR Bill
Pay: Department for Business and Trade names companies failing to pay NMW
Diversity: Parker review sets new targets for FTSE 350 and private companies
Trade Unions: International Labour Organization comments on UK strike laws
Immigration:MAC intends to publish its shortage occupation list review in autumn 2023
Brexit: Government consults on reforms to working time rules, holiday pay and TUPE
On 12 May 2023, the government published a consultation paper, setting out its plans regarding the future of retained EU employment law. The consultation paper confirms the government’s intention to keep retained EU employment laws in the following areas without any change: family leave rights (maternity, paternity, adoption and parental leave), ‘atypical’ workers’ rights (part-time workers, fixed-term workers and agency workers), and information and consultation rights. However, certain reforms are proposed in the areas of working time, paid holiday rights and rights upon the transfer of a business or an outsourcing. The government says it has identified areas for reform of laws it considers are ‘too onerous for business to be used effectively or too complex for workers to know, understand and use’. Amanda Steadman, principal knowledge lawyer at Brahams Dutt Badrick French LLP, sets out in her article the proposed changes in the consultation and the next steps.
Brexit: Lords put further amendments back to Commons on REULRR Bill
On 24 May 2023, the House of Commons debated the Lords amendments to the Retained EU Law (Revocation and Reform) Bill (REULRR Bill), with a majority of MPs disagreeing with three amendments. Lords amendments 6, 15 and 42 were rejected and Lords amendments 1 and 16 were further amended. Lords amendments 2 to 5, 7 to 14, 17 to 41 and 43 were agreed to.
On 20 June 2023, the House of Lords debated Commons amendments to the REULRR Bill. The Lords approved two amended motions, proposing amendments in lieu of those previously rejected by the House of Commons. These amendments relate to the two outstanding issues in debate—environmental protection and parliamentary scrutiny. Continuing the ‘ping pong’ process, the House of Commons considered the Lords message on 21 June 2023, with the government moving that the Lords amendments be rejected again. The Bill was scheduled to return to the House of Lords on 26 June 2023.
Pay: Department for Business and Trade names companies failing to pay NMW
The Department for Business and Trade (DBT) has published the names of 202 employers who have failed to provide their lowest paid staff the national minimum wage (NMW). Approximately 63,000 workers across the companies did not receive NMW as a result of deductions from wages (39%), failure by the companies to properly compensate for working time (39%) and incorrect apprenticeship rates (21%).
In the top 3 in this Round 19 are WH Smith Retail Holdings Ltd, Lloyds Pharmacy Ltd and Marks and Spencer PLC. Some in the list owe as little as £5500 to one employee but the larger offenders have failed to pay cumulatively hundreds of thousands of pounds to thousands of workers.
Employers are reminded that the minimum wage law applies to all parts of the UK. Employers should always carry out the necessary checks (guidance is available on the Gov website: Calculating the Minimum Wage), and HMRC consider all complaints from workers, so they are reminding workers to check their pay with advice available through the Check your pay website.
Diversity: Parker review sets new targets for FTSE 350 and private companies
The Parker Review Committee has published a 2023 update report on ‘Improving the Ethnic Diversity of UK Business’. The independent review, which published its first report in 2016, was commissioned by the former Department for Business, Energy and Industrial Strategy to consult on ethnic diversity in UK boards. The review also set several diversity targets for FTSE 100 and FTSE 250 companies. The update contains the results of the review’s survey of those targets in 2022 in addition to a number of new targets to be achieved by 2027.
Working Patterns: 4 Day Week campaign launches Mini Manifesto
The 4 Day week campaign has published a ‘Mini Manifesto’, which they are calling on political parties to endorse ahead of the next general election. 4 Day Week is a national campaign for a 32-hour working week with no reduction in pay. The manifesto lays out the campaign’s key principles and goals.
Trade Unions: International Labour Organization comments on UK strike laws
The International Labour Organization (ILO) has critiqued the UK’s strike laws and called for the UK government to bring union laws in line with international law. In a rare intervention that has not been used against the UK since 1995, the ILO issued an instruction for ministers to seek assistance from the ILO and report back on progress by 1 September 2023. The Trades Union Congress has called this ‘hugely embarrassing’ for ministers.
Immigration:MAC intends to publish its shortage occupation list review in autumn 2023
The Migration Advisory Committee (MAC) has confirmed, by way of an update to its guidance webpage, that it intends to publish its report reviewing the shortage occupation list in autumn 2023. This is later than the anticipated date of June 2023, as stated in previous press releases.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
This month we look at when a whistleblowing claim may be relevant...
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Employment Law General Update – April 2023
Employment,
25th April 2023
Employment Law
A lot going on this month. New rates and consultations regarding NLW and NMW, new requirement for immigration scale-up route, an update on the Retained EU Law Bill and discussions over the definition of ‘sex’ under the Equality Act. Meanwhile, there is a review into whistleblowing law, an inquiry into seasonal worker visas, a blog on loneliness in the workplace, and a review relating to the work prospects of autistic people.
Staff Pay: Changes to rates of National Living Wage and National Minimum Wage and 2023 consultations
Whistleblowing: Government launches whistleblowing law review
Immigration: Home Office publishes details of a new endorsement requirement for the Scale-up route
Immigration: MAC Chair publishes letter regarding inquiry into Seasonal Worker visa
Welfare: Glassdoor reveals survey findings on employee loneliness
Disability: DWP publishes new review to increase work prospects of autistic people
Disability: Commons briefing highlights lowest rates of employment among disabled people are for those on autism spectrum
Brexit: An update on the Retained EU Law (Revocation and Reform) Bill
Equality Act: EHRC respond to Minister’s request to clarify the definition of ‘sex’
Staff Pay: Changes to rates of National Living Wage and National Minimum Wage and 2023 consultations
SI 2023/354: These Regulations are made to amend the National Minimum Wage Regulations 2015, SI 2015/621. They come into force on 1 April 2023 and increase:
the rate of the national living wage for workers who are aged 23 or over from £9.50 to £10.42 per hour
the rate of the national minimum wage for workers who are aged 21 or over (but not yet aged 23) from £9.18 to £10.18 per hour
the rate of the national minimum wage for workers who are aged 18 or over (but not yet aged 21) from £6.83 to £7.49 per hour
the rate of the national minimum wage for workers who are under the age of 18 from £4.81 to £5.28 per hour
the rate for apprentices within SI 2015/621, reg 5(1)(a) and (b) from £4.81 to £5.28 per hour
the accommodation offset amount which is applicable where any employer provides a worker with living accommodation from £8.70 to £9.10 for each day that accommodation is provided
The Low Pay Commission (LPC) has published a consultation seeking views on the impact of National Living Wage (NLW) and National Minimum Wage (NMW) increases for 2024. The NLW is expected to rise to between £10.90 and £11.43 in 2024. The information gathered will be used to inform the LPC’s recommendations to the government in the Autumn. The consultation closes on 9 June 2023 at 11:45pm.
Whistleblowing: Government launches whistleblowing law review
On 27 March 2023, the government published a press release confirming that they have launched a review of the whistleblowing framework. The press release states that the review will gather evidence on the effectiveness of the current whistleblowing regime in enabling workers to speak about wrongdoing and protect those who do so. The press release confirms that the evidence gathering stage of the review will end in Autumn 2023. The review will pursue views and evidence from whistleblowers, key charities, employers and regulators.
Immigration: Home Office publishes details of a new endorsement requirement for the Scale-up route
The Home Office has updated its sponsor guidance in relation to the Scale-up route. Notably, it confirms that an ‘endorsing body pathway’ is being launched, on 13 April 2023, for prospective employer applicants who do not meet the sponsor licence eligibility requirements (eg ‘if their HMRC history is not long enough’). As an alternative, prospective sponsors will be able to obtain an endorsement from a Home Office-approved endorsing body and submit this with the licence application (which must be made no more than three months from the date of endorsement). The guidance confirms that the endorsement process will attract a fee, and further details will be published in due course. Other changes include a new Annex SC2, setting out the changes to the route from 12 April 2023, in line with the Statement of Changes in Immigration Rules HC 1160.
Immigration: MAC Chair publishes letter regarding inquiry into Seasonal Worker visa
The Chair of the Migration Advisory Committee (MAC), Professor Brian Bell, has published a letter written to the Minister of State for Immigration, Robert Jenrick, regarding an inquiry into the Seasonal Worker visa. The inquiry will consider the rules under which the scheme operates, the size and costs of the scheme, the potential for exploitation and poor labour market practice, evidence from international comparisons and the long-run need for such a scheme. Bell has also confirmed that MAC will be working with the Department of Environment, Food and Rural Affairs (DEFRA) during the inquiry.
Welfare: Glassdoor reveals survey findings on employee loneliness
Glassdoor has published a blog with insights from its new study which surveyed 2,000 employees to understand the levels of employee loneliness in the UK. The blog reveals the impact of poor workplace social life and the importance of workplace friendships to retaining staff.
Key findings include:
six in ten people with less than five years of work experience are lonely all or most of the time
only 51% of employees connect socially with colleagues at least once a month
28% of workers under 35 would stay in a job they did not like if the workplace social life was good
89% of workers believe feeling a sense of belonging with their company is vital to their overall workplace happiness
nearly 49% of workers say a good social life has a significant impact on their overall job satisfaction and mental health
Common reasons for workplace loneliness include less in-person interaction with co-workers, inflexibility in the workplace, and a lack of focus on creating a sense of belonging or community by an employer.
Glassdoor reveals that without a good workplace social life, workers are more likely to be less productive and engaged. They are also more likely to experience stress, anxiety and eventually burnout.
Disability: DWP publishes new review to increase work prospects of autistic people
The Department for Work and Pensions (DWP), supported by the autism charity Autistica, has launched a review, the Buckland Review of Autism Employment, to increase the employment prospects of autistic people. The review, which will be led by Sir Robert Buckland KC MP and start in May 2023, will consider how the government can support employers to recruit and retain autistic people and enjoy the benefits of a neurodiverse workforce. Recommendations for change will be made to the Secretary of State in September 2023.
Disability: Commons briefing highlights lowest rates of employment among disabled people are for those on autism spectrum
The House of Commons has released a research briefing on autism, policy and services. The briefing sets out the Department for Work and Pensions’ annual set of statistics on the employment of disabled people, which reports that the lowest rates of employment among disabled people are those on the autism spectrum.
In the 2020–21 financial year, 26.5% of disabled people on the autism spectrum were in employment, compared to 52.5% of all disabled people and 80.4% of non-disabled people in the same period. In 2016, the National Autistic Society reported that 77% of unemployed people with autism wanted to work.
Brexit: An update on the Retained EU Law (Revocation and Reform) Bill
Retained EU law is a concept created by the European Union (Withdrawal) Act 2018. This Act took a ‘snapshot’ of EU law as it applied to the UK at the end of the Brexit transition period on 31 December 2020 and provided for it to continue to apply in domestic law. The Bill would automatically revoke, or ‘sunset’, most retained EU law at the end of 2023. This would not apply to retained EU law that is domestic primary legislation.
Ministers and devolved authorities could exempt most (but not all) retained EU law from the sunset, and UK ministers (but not devolved authorities) could delay the sunset until 23 June 2026 at the latest for specific descriptions of retained EU law. Any retained EU law that still applied after the end of 2023 would be renamed as assimilated law. The Bill would give ministers and devolved authorities powers to restate, reproduce, revoke, replace or update retained EU law and assimilated law by statutory instrument.
The Bill would also repeal the principle of supremacy of retained EU law from UK law at the end of 2023, although its effects could be reproduced by statutory instrument in relation to specific pieces of retained EU law. The Bill would also make changes to the way that courts could depart from retained EU case law.
The Bill would change the way that some types of retained EU law can be modified. It would ‘downgrade’ retained direct EU legislation so that this could be amended by secondary legislation. It would also remove additional parliamentary scrutiny requirements that currently apply when modifying some types of EU-derived domestic secondary legislation.
The government has published a ‘dashboard’ of retained EU law, although it acknowledges this is not a comprehensive catalogue of all retained EU law that may be in scope of the Bill. The dashboard is due to be updated regularly.
Concerns have been raised throughout the Bill’s progress about the amount of retained EU law to be reviewed before the sunset deadline and whether some may end up being revoked inadvertently. In the Commons, MPs expressed concerns about the impact of large-scale and rapid changes to the statute book as a consequence of the Bill and have highlighted a lack of clarity about what retained EU law the government intends to keep, particularly in the areas of employment, environmental and consumer protections. They were also critical of a lack of parliamentary scrutiny of and input into the process of reforming retained EU law. However, the only amendments made to the Bill in the House of Commons were government amendments to clarify the Bill’s drafting.
The Bill is now with the House of Lords. Five days of Committee proceedings—when a Bill is examined in detail—concluded on 8 March 2023.
Over the five days, Peers put forward many amendments to the Bill on a range of subjects. Opposition peers were scathing in their comments on the Bill. For example, Baroness Ludford (LD), said the Bill was ‘pretty hopeless’ and accused the government of adopting a ‘slash and burn’ approach to legislative reform, with opposition amendments seeking to bring to it ‘some rationalisation and order’. For the government, Lord Callanan, said, on the contrary, a ‘significant minority’ of retained EU law was ‘legally inoperable’ and that it was ‘not good governance’ to subject it to ‘complex and unnecessary parliamentary processes’ before being able to remove it from the statute book. He added that the amendments, including those seeking to delay the sunset, would ‘hamper efforts to realise the opportunities the Bill presents’.
The Bill has come out of Committee stage in the Lords with amendments, including the insertion of a new clause setting out exceptions to the sunset of REUL, and it seems likely that further amendments will be made at Report stage. It is noteworthy that at Second Reading in the Lords a significant number of Conservative peers spoke against the Bill. The level of opposition expressed by peers from all parties indicates that it may not be straightforward for the government to get the Bill into law. It seems likely that the government will need to accept at least some of the Lords’ amendments if it wishes to avoid a lengthy period of ‘ping pong’ between the Lords and the Commons.
In contrast to the approach being taken in respect of much retained EU law, the House of Lords is, in parallel, scrutinising the Financial Services and Markets Bill, which would similarly revoke retained EU law relating to financial services, but contains developed provisions which enable the Treasury and financial services regulators to replace that EU Law with legislation designed specifically for UK markets.
Report stage on the Bill—a further chance for the House of Lords to closely scrutinise elements of the Bill and make changes—began on 19 April 2023.
Authors: David Mundy, Aaron Nelson, and Joanna Purkis at BDB Pitmans, for LexisNexis.
Equality Act: EHRC respond to Minister’s request to clarify the definition of ‘sex’
On 21 February 2023, the Minister for Women and Equalities, Kemi Badenoch, requested advice from the Equality and Human Rights Commission (EHRC) regarding the definition of the protected characteristic of ‘sex’ in the Equality Act 2010 (EqA 2010). EHRC have provided an initial response to the Minister’s request namely suggesting that the UK government carefully consider implications any change to the legislation could have.
Further Information:
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
This month we look at when a whistleblowing claim may be relevant...
News & Views
Employment Law General Update – March 2023
Employment,
27th March 2023
Employment Law
This month the news focuses on some key employment announcements from the Spring budget, changes to work checks guidance, a new proposed UK version of GDPR and a proposed right to request a more predictable working pattern. Lastly a new government employment champion has been announced to urge businesses to take action on the menopause.
Working Practices: Proposed new statutory right to request a more predictable working pattern
Menopause: Czar urges businesses to step up on policies
Spring Budget 2023 – Key Employment Announcements
In the Spring Budget 2023, delivered on 15 March 2023, the Chancellor of the Exchequer, Jeremy Hunt, announced a series of measures intended to support the UK workforce. Among the announcements were the introduction of a new Health and Disability White Paper on how to provide support and opportunities for workers with disabilities, the planned abolition of the lifetime allowance to encourage workers over 50 to stay in employment, the reiteration of government support for Private Members’ Bills providing unpaid carers with additional leave, parents with greater protections against redundancy, and parents of children in neonatal care with paid statutory leave, and commitments to encourage and facilitate flexible working arrangements between employers and employees.
In respect of immigration, Jeremy Hunt announced measures to tackle immediate labour shortages and ease business visits to the UK and further support for those who have come to the UK through the Ukraine Visa Schemes. Building off the Autumn Statement 2022, the Budget confirmed the government’s plan to deliver on three of the five key priorities set out by the Prime Minister in January: to halve inflation, reduce debt and grow the economy. The Spring Budget 2023 lists employment, education and enterprises as priorities for delivering on growth and building a high wage high skill economy.
Immigration: Revisions made to right to work checks guidance
The Home Office has updated its guidance for employers carrying out right to work checks. The guidance was updated late in the day on 28 February 2023 to reflect legislative changes and current practice. Examples include clarifying that employers should carry out on an online check for those with a pending Home Office application, administrative review or appeal, circumstances in which an employer should contact the Employer Checking Service and what employers should do if they are presented with a Biometric Residence Permit (BRP) with an expiry date of 31 December 2024. Similar changes have been made, on the same day, to the right to rent checks guidance for landlords.
The UK government has announced that British businesses will save billions of pounds through a new version of GDPR, which will replace the EU’s data protection laws after Brexit. The new law will allow UK businesses to avoid costly compliance fees and will maintain high levels of data protection for consumers. The changes are expected to provide a boost to the UK economy and enhance the UK’s reputation as a leader in data protection.
Working Practices: Proposed new statutory right to request a more predictable working pattern
The Workers (Predictable Terms and Conditions) Bill (the Bill) proposes to give eligible workers a new statutory right to request a more predictable working pattern. This follows the Taylor review of modern working practices and the resulting 2018 Good Work Plan in which the government committed to introduce policies to end ‘one-sided flexibility’. Eligible workers (not just employees) will have the right to make a request where:
there is a lack of predictability as regards any part of their work pattern (the work pattern being the number of working hours, the days of the week and the times on those days when the worker works, and the length of the worker’s contract)
the change relates to their work pattern
their purpose in applying for the change is to get a more predictable work pattern
An application must state that it is a request for a more predictable working pattern, and specify the change applied for and the date on which it is proposed it should take effect.
The Bill does not contain other earlier government commitments to introduce a right to reasonable notice of working hours and compensation for shifts cancelled without reasonable notice.
A worker can only apply for a change to their working pattern if they have been employed by the same employer (whether or not under the same contract) at some point during the month immediately preceding a ‘prescribed period’ (this will be specified in regulations and is expected to be 26 weeks ending with the date of the application). There is no requirement for the service to be continuous.
A worker can only make two applications in any 12-month period. This includes any application under the flexible working provisions if that request is for a change which would result in a more predictable contract.
The Bill contains a similar set of rights for agency workers:
an agency worker may be able to apply to a temporary work agency for a more predictable working pattern where they have had a contract with the agency at some point in the month immediately before a ‘prescribed period’ (to be set out in regulations)
if the agency worker has worked for a hirer in the same role continuously for 12 weeks (within a period of time which will be set out in regulations) they may also be able to apply to the hirer for a contract of employment, or other worker’s contract, which is more predictable than their current working pattern
There is no definition of ‘predictability’ in the Bill. It does, however, specifically state that workers on a fixed term contract of 12 months or less may request that the term is extended or becomes permanent. Other than that, it seems that a ‘lack of predictability’ will cover any worker whose hours or days vary in a way which provides them with uncertainty, such as:
casual/zero hours workers without a guaranteed number of hours
annualised hours workers if the employer has discretion over the working pattern
workers whose hours are determined by a shift pattern or rota, where that pattern/rota varies unpredictably
In many ways the process for dealing with requests reflects the flexible working regime. There is no obligation on the employer to agree to a request, but they must deal with the application in a reasonable manner and respond within one month. An employer can only reject an application for one or more of the specified reasons, which are:
the burden of additional costs
detrimental effect on ability to meet customer demand
detrimental impact on the recruitment of staff
detrimental impact on other aspects of the employer’s business
insufficiency of work during the periods the worker proposes to work
planned structural changes
If the worker’s contract terminates during the one month ‘decision period’ the requirements still apply. However, there are then some additional acceptable grounds for refusing a request such as the employer having acted reasonably in dismissing for misconduct or redundancy. A worker will be able to bring an employment tribunal claim if an employer fails to follow the requirements set out above which, if the claim is successful, could result in an order for reconsideration of the request or compensation. The amount of compensation will be set by regulations and could be limited to eight weeks’ pay as it is under the flexible working regime.
There is no timetable for implementation yet and, as noted above, some of the detail of how the right to request will operate in practice still has to be set out in separate regulations.
The new right will have the most impact in sectors where the use of casual workers and changeable shift patterns/rotas is widespread, and on businesses using short fixed-term contracts or agency workers. It is likely to lead to an increased focus on how best to manage these type of working arrangements.
The Bill only provides for the right to ask for a more predictable working pattern, not a right to a predictable working pattern. However, organisations which engage individuals on unpredictable working patterns will need to establish policies and procedures to deal with requests. They should also be aware that, if employment status isn’t clear, an individual might claim worker status while making an application for a more predictable working arrangement
(Content provided to Lexis-Nexis by Julie Keir, practice development lawyer at Brodies LLP.)
Menopause: Czar urges businesses to step up on policies
Helen Tomlinson, England’s first-ever menopause employment champion has called on businesses to develop policies and to normalize discussing the subject, saying that she has witnessed ‘the transformational power’ that talking about the health condition can have in a workplace. The Department for Work and Pensions (DWP) announced on 6 March 2023 that it had appointed Tomlinson to the post to raise awareness about the health condition. Tomlinson will also aim to encourage more employers to develop policies so women who experience symptoms are better supported, the DWP added. Tomlinson said that fewer than a quarter of UK businesses ‘currently have a menopause policy, but as I take on this role, I am determined that my generation of women in work will break the menopause taboo and have confidence that their health is valued’.
The DWP said that she will raise awareness of menopause, while promoting the benefits for businesses and the economy when women are supported to stay in work. Her role could also include advising employers about ‘small but significant’ changes they can make to the workplace, including offering women experiencing the symptoms of menopause more regular breaks and creating cooler spaces in offices, the DWP added.
The announcement of Tomlinson’s appointment came after the DWP had previously published official responses to two reports on menopause and the workplace. Tomlinson is Head of Talent in the UK and Ireland at the human resources provider Adecco Group. She was appointed to the role on a voluntary basis by the DWP, where she will work closely with Mims Davies, the Minister for Social Mobility, Youth and Progression. Davies said that menopause is a major reason that too many women leave the workforce early, often when they are at the peak of their skills and experience with so much more still to contribute. Tomlinson will also work closely with Lesley Regan, who was appointed as the government’s first women’s health ambassador in 2022.
According to the DWP, a quarter of women report that they have considered leaving their job due to experiencing menopause. Not all women experience symptoms that stop them from working, but research suggests that those with serious menopausal symptoms take an average of 32 weeks of leave from work over the length of their employment.
Many women tend to suffer in silence during perimenopause and menopause. Seeing this subject acknowledged at government level, gives hope that it will inspire businesses to do the same – educating and raising awareness about menopause-related issues, whilst also providing assistance and support to those who need it.
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.
