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Employment Law General Update – January 2025

  • Anne-Marie Pavitt,

  • 24th January 2025

Employment Update Employment Law

This article summarises the main developments that will affect employment law in 2025 and beyond.

Employment Rights Bill and related consultations

Other employment measures

Employment Rights Bill and related consultations

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.

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Bereavement leave

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.

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Collective redundancies

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.

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Dismissal and re-engagement (fire and rehire)

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.

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Equality action plans and menopause support

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.

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Fair Work Agency

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.

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Family leave

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.

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Flexible working

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.

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Sexual harassment

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.

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Statutory Sick Pay (SSP)

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.

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Trade unions

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.

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Right to a statement of trade union rights

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.

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Right of trade unions to access workplaces

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.

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Simplifying statutory trade union recognition

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.

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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.

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Dismissal for taking industrial action

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.

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Consultation on further proposals

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.

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Tribunal time limits

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.

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Unfair dismissal

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.

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Zero hours and “low hours” contracts

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.

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Other employment measures

Draft Equality (Race and Disability) Bill

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.

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Neonatal care leave and 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.

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Right to disconnect

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.

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Gender identity and gender critical beliefs

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.

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Artificial intelligence (AI) in the workplace

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.

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AI reform

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.

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TUC AI taskforce

Labour has been involved with the TUC’s AI taskforce, which in April 2024 published its draft Artificial Intelligence (Employment and Regulation) Bill, setting out recommended regulation of the use of AI in the workplace.

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EU position

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.

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International convention on AI

Since coming to power, on 5 September 2024, the Labour government signed the new international treaty, the Council of Europe’s Framework Convention on Artificial Intelligence and Human Rights, Democracy and the Rule of Law. The AI treaty has also been signed by the European Commission.

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Managing AI risk

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.

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Immigration

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). 
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Further Information

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

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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 – 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.

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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.

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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.

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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.

The full response can be found here.

The explanatory memorandum can be found here.

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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).

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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.

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

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The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.

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Employment Law Case Update – September 2023

  • Employment,

  • 21st September 2023

Employment Law

This month we bring you a plethora of interesting cases centring around dismissal in all its forms – be they agreed, part of a restructure or initiated for a reason. The questions will always be: is that reason fair and/or have you followed the correct procedure? Have a look at our case run down here.

  • TUPE: Employment decision on when a TUPE transfer takes place
  • Redundancy: Employees in restructure did not unreasonably refuse suitable employment
  • Unfair Dismissal: Conclusion on the fairness of a dismissal must be based on the established reason for that dismissal
  • Sex Discrimination: Tribunal’s misstatement of grievance outcome materially impacted on its consideration of the claim

TUPE: Employment decision on when a TUPE transfer takes place

In Rajput v Commerzbank and Société Générale [2023] EAT 116 the EAT held that (i) in a ‘series of transactions’ cases, the transfer does not necessarily take place at the end of the series, and (ii) when determining the date of the transfer, a tribunal can have regard to matters which occur outside the UK. Regulation 3(1)(a), which provides that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246 apply to undertakings which are ‘situated immediately before the transfer in the UK’, does not mean that a tribunal must focus solely on events which take place within the UK-businesses which are situated in the UK.

Sarah Clarke, barrister at 3PB, who represented the claimant in this appeal, writes in a case analysis for Lexis Nexis that, on the face of it, the EAT’s finding that a transfer can take place at any point within the ‘series of transactions’ could cause uncertainty and increase the amount of litigation in this area. However, she goes on to say that she considers that, in the vast majority of cases, a transfer will take place at the end of the series. The question to be determined is when responsibility for the carrying on of the business transfers to the transferee and it is difficult to envisage many situations in which responsibility would transfer over prior to the end of the transactions. Indeed, as a matter of logic, if a transfer is ‘effected’ by a series of transactions, it cannot be until the last of those transactions that the transfer is complete, as otherwise the later transactions could not have ‘effected’ the transfer. However, this argument was rejected by the EAT and, in her view, there is scope for further judicial consideration of this.

In relation to the location of the business, this case makes it clear that, when determining when a transfer takes place, a tribunal’s focus ought not to be solely on those matters which occur in the UK. The relevance of geography to TUPE is simply that the business must be situated in the UK immediately before the transfer takes place. However, this does not preclude the business operating from other locations outside the UK. Thus, when dealing with this issue, parties must ensure that they provide evidence to the tribunal which clearly explains all matters relevant to the transfer, regardless as to where in the world those events took place.

The claimant was employed by Commerzbank (CB) from 2012 as a senior compliance officer. She was dismissed in March 2020 and brought various claims, including automatic unfair dismissal (on the basis that the sole or principal reason for her dismissal was the TUPE transfer) and victimisation (following a previous successful discrimination claim she had brought against CB). She had worked within the Equity Markets and Commodities Division (EMC) of the business, which was sold to Société Générale (SG), following a business purchase agreement which was signed in November 2018.

The EMC business was divided into three divisions, namely Flow Trading, Asset Management (AM) and Exotics, Vanilla and Funds (EVF), and was spread across several countries, including the UK, Luxembourg and Germany. The claimant worked across all three divisions.

For the purpose of the business sale, each division was (i) allocated its own purchase price, and (ii) divided into sub-batches, which transferred over a period of time. The EVF division transferred over in six batches from March to October 2019, with AM transferring over from May to November 2019. The last part of the EMC business to transfer over was Flow. It was based mainly in Germany, with only a small presence in London consisting of five employees. Most of Flow had transferred over by March 2020, with the remainder transferring in May 2020.

The employment tribunal found that the transfer took place on 1 October 2019 on the basis that 95% of the UK operation had transferred over by then. The judge thus ignored the last division which transferred over, as this was based predominantly in Germany.

The EAT, Mr Justice Kerr sitting alone, concluded that:

‘…there is no presumption or rule that a transfer effected by a series of transactions occurs at the end of the series. Completion may be artificially delayed. The last transaction in the series may be a minor detail, putting the last piece of the jigsaw in place long after the transferee has started running the business to the exclusion of the transferor.’

However, he agreed that the judge had erred in excluding from his consideration the Flow part of the business. The question to be determined was when responsibility for the carrying on of the business was transferred to the transferee (CELTEC v Astley). It was an agreed fact that Flow formed ‘part of the organised grouping of resources’ which comprised the EMC business. There was no reason why an ‘organised grouping of resources’ (in the words of TUPE 2006, SI 2006/246, reg 3(2)) could not be located across several countries at once. A business or part of a business can be ‘situated’ in the UK without its entire operation being located in the UK. He concluded that ‘there is nothing in the TUPE Regulations that required the tribunal to confine its consideration to the part of the organised grouping of resources based in this country.’

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Redundancy: Employees in restructure did not unreasonably refuse suitable employment 

In Mid and South Essex NHS Foundation Trust v Stevenson [2023] EAT 115 the EAT had to consider whether the respondent had been entitled to refuse to make redundancy payments to the claimants where the employment tribunal had held that the alternative roles offered to them were ‘suitable’ but that their rejection of them was not unreasonable due to their personal perceptions of those roles.

The EAT held that there was no error in the employment tribunal’s approach:

— the relevant statutory test is whether the claimants ‘unreasonably’ refused an offer of employment that was suitable to them (the suitability of the role is not in and of itself determinative)

— even though the claimants’ perception of the roles was objectively groundless, the employment judge had found that there was a sufficient basis for their personal perceptions of the roles (eg that they would be a loss of autonomy and status) for them not to have acted unreasonably in refusing them

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Unfair Dismissal: Direct Line beats claims advisers case over agreed exit

Insurer Direct Line has successfully defended a case by a claims adviser that it unfairly dismissed him, with the EAT ruling that the employment tribunal had been entitled to find that there was no dismissal because the employee had mutually agreed to terminate his employment after his mental health problems meant he could not work.

In Riley v Direct Line Insurance Group plc [2023] EAT 118, the EAT ruled that an employment tribunal was entitled to find that Matthew Riley had consented to leaving his job. This is because he knew that he would receive lifetime insurance payments after being left unable to work due to mental health problems stemming from autistic spectrum disorder.

His Honour Judge (HHJ) Murray Shanks said the employment tribunal did not err when it rejected Riley’s case that he was duped into terminating his employment. ‘There was ample evidence for the conclusion reached, and the tribunal considered in detail whether Mr Riley’s consent was freely given’, he said. HHJ Shanks added that the tribunal ‘went to considerable lengths to emphasise their conclusions that Mr Riley was not tricked or coerced in any way and that he participated in the discussions, was given time and fully understood what he was doing’.

Riley was absent from work from 2014 until October 2017 due to anxiety and depression, according to the judgment. He began to make a phased return—but was again left unable to work from May 2018 because of anxiety and paranoia, the judgment says. He met with managers in August 2018 and September 2018, when he discussed leaving the job and relying on an insurance policy with UNUM that would make payments equating to 80% of his salary until he reached retirement age, according to the judgment.

Direct Line notified Riley in September 2018 that he was being dismissed following a meeting at which UNUM confirmed that he would be entitled to the benefits of the policy, the judgment says. Riley launched a case at the employment tribunal later that year, lodging claims of unfair dismissal and disability discrimination over allegations that he had been tricked by managers, according to the judgment.

But the tribunal dismissed his case in 2019, rejecting Riley’s evidence that he was put under pressure and did not understand what he was being told by managers. It also found that Riley had told managers that he knew terminating his employment to rely on the insurance policy was ‘where it’s been heading for the last four years’, according to the appeal judgment. The tribunal also concluded that Riley’s discussions with managers about his leaving had been supportive and designed to help him make the right decision.

John Platts-Mills, of Devereux Chambers, Riley’s counsel, argued before the EAT that the tribunal had failed to address the questions of who really terminated their client’s employment and whether the claims adviser really gave ‘true, mutual consent’, according to the appeal judgment.

But HHJ Shanks rejected the argument, ruling that the tribunal had ‘considered evidence relating to this in detail’. ‘It is true that they did not expressly refer to his disability in this context, but they must have had it well in mind when they rejected his evidence that he did not understand what was being said at meetings and found that he had made a fully informed decision’, he said.

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Unfair Dismissal: Conclusion on the fairness of a dismissal must be based on the established reason for that dismissal

In Greater Glasgow Health Board v Mullen [2023] EAT 122, the EAT dismissed the employer’s appeal against the decision of the employment tribunal which found that the employer’s reason for dismissing their employee was a belief by it in the existence of misconduct consisting of aggressive and threatening behaviour by him to one of his line reports. The tribunal further concluded that the employer’s belief in the existence of that misconduct was genuinely held and reached after reasonable investigation. The issue was whether the tribunal had erred in their decision.

The EAT held, among other things, that: (i) in the circumstances it was not open to the employment tribunal to base its conclusion about the fairness of the dismissal in terms of section 98(4) of the Employment Rights Act 1996 on a factual hypothesis that the ‘real reason’ for the dismissal was something different to the established reason; and (ii) on the findings in fact made by the employment tribunal, the only conclusion to which they could properly have come was that dismissal was within the range of reasonable responses open to the employer and was fair. Consequently, the employment tribunal’s judgment was set aside, and the claim of unfair dismissal was dismissed.

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Vicarious Liability: School not liable for acts of work experience student

In MXX v A Secondary School [2022] EWHC 2207 (QB) the Court of Appeal upheld the High Court’s decision that the defendant, a co-educational secondary school providing education for children aged 11 to 16, was not vicariously liable for the sexual assaults carried out by PXM on the claimant (a pupil), subsequent to PXM undertaking a work experience placement at the school. The court held that the judge had been wrong to have found that the relationship between the defendant and PXM was not akin to employment but that:

— given the limited nature of PXM’s role during the course of one week (eg he had no pastoral responsibility), the facts did not begin to satisfy the requirements of the close connection test

— the grooming which led to the sexual offending was not inextricably woven with the carrying out by PXM of his work during his week at the defendant’s school such that it would be fair and just to hold the defendant vicariously liable for the acts of PXM.

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Disability Discrimination: Tribunal rules insurer discriminated against menopausal worker

A British insurance company has been ordered to pay one of its former workers £64,645 after the tribunal found it failed to make reasonable adjustments for an employee with menopausal symptoms, who later resigned.

In Lynskey v Direct Line Insurance Services Ltd ET/1802204/2022 and ET/1802386/2022, Employment Judge Wade found that Direct Line Insurance Services Ltd did not fully consider the impact of menopause on Maxine Lynskey when it launched a warning and disciplinary process based on her performance. ‘At that time the disadvantage the claimant faced in doing her job while struggling with menopausal symptoms ought to have been recognised as such and adjustments made’, Judge Wade wrote.

The insurer must pay the sum to Lynskey to account for a range of factors, including damages for injury to feelings as well as losses she suffered, according to a remedy judgment. These events are a ‘serious and sustained number of contraventions over a period involving both the claimant’s line manager and her line managers and HR’, the tribunal found.

Lynskey was a motor sales consultant for Direct Line from April 2016. She had ‘very good’ performance ratings in that role. She then informed her manager at a meeting she was having health issues related to menopause.

‘It was clear from the information the claimant provided that she was being profoundly affected by menopausal symptoms and was seeking treatment for them; that was apparent from March 2020’, Judge Wade wrote.

Lynskey then moved to a different team considered to be a ‘better fit’ in light of her personal and health circumstances, albeit one that did not involve a sales related bonus. However, the tribunal found that with this new role, Lynskey’s managers should have been aware of health issues that would affect her performance. ‘The respondent knew, or ought reasonably to have known, from March 2020, that the claimant had become a disabled person by reason of menopausal symptoms’, Judge Wade wrote. ‘She was self-evidently at a disadvantage in comparison with colleagues without her disability in meeting the respondent’s performance standards and targets, and generally more likely to be sanctioned or face disciplinary/performance warnings.’

Lynskey began underperforming, and was told she wouldn’t receive a pay rise because her performance was rated ‘need for improvement’, the judge wrote. The tribunal ruled that it was unfavourable treatment to score her performance without fully factoring in her disability. ‘Need for improvement is inherently unfavourable if the person, through disability, cannot, in fact, improve, or meet the required standards’, it said. She later faced a warning meeting where her manager ‘failed to recognise or take in the explanations’ around her symptoms. Lynskey then faced a disciplinary meeting where her health condition was not fully considered. Judge Wade found that the subsequent disciplinary warning ‘was unfavourable treatment because of something arising in consequence of disability’.

‘It is clear a less discriminatory approach could have been taken, including occupational health referral, consideration of other roles, and accepting the claimant’s mitigation, namely her disability’, the judge wrote.

After a period of ill health and personal issues outside work, Lynskey’s sick pay was stopped, the ruling said. She then submitted a grievance to her employer before ultimately resigning in May 2022, then brought constructive unfair dismissal and Equality Act 2010 complaints against the insurance company.

The tribunal upheld Lynskey’s arguments that Direct Line failed to make reasonable adjustments for her, as well as her complaints about discrimination because of her menopause symptoms. It rejected her complaints relating to constructive unfair dismissal, sex and age.

The tribunal handed down an extempore judgment (given verbally at the end of the case, not written down) on 28 April 2023, and Direct Line requested the written reasons, which were published on 25 August 2023.

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Sex Discrimination: Tribunal’s misstatement of grievance outcome materially impacted on its consideration of the claim

In Iourin v The Chancellor, Masters and Scholars of the University of Oxford [2023] EAT 108 the EAT considered a number of appeals against an employment tribunal’s decision dismissing the claimant’s claims for direct sex discrimination, victimisation, and disability discrimination against the respondent under the Equality Act 2010.

The claimant had attempted to hug and kiss a colleague when they were in a car together. She raised a grievance and the grievance committee held that this conduct was unwanted but that, in the context of their relationship, it did not amount to harassment or sexual harassment. The claimant was however required to undergo training related to harassment, which he claimed was sex discrimination.

In finding that this did not amount to sex discrimination, the employment tribunal had made a material error of law by relying on its mistaken account of the grievance committee’s finding—stating that it was harassment but not sexual harassment—in reaching its conclusion that this was the non-discriminatory reason for the training requirement. That claim was therefore remitted to the employment tribunal for rehearing.

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com.

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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 – 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.

  • Spring Budget 2023: Key Employment Announcements
  • Immigration: Revisions made to right to work checks guidance
  • GDPR: Government announces new UK version of GDPR
  • 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.

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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.

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GDPR: Government announces new UK version of GDPR

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.

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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.)

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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.

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

Back

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 – November 2022

  • Employment,

  • 28th November 2022

Employment Law

This month’s news seems to be full of inequality as we report on the gender pay gap, perceptions and experiences of racism at work, menopause, striking transport workers, bias in recruitment, carer’s leave and new protection from redundancy measures for those on pregnancy-related leave.

  • Gender Pay Gap: ONS 2022 gender pay gap data published
  • Race Discrimination: 2021 survey considers perceptions and experiences of racism at work
  • ACAS: Survey finds 1 in 3 employers feel under-equipped to support women during menopause
  • Trade Unions: New Transport Strikes Bill introduced to House of Commons
  • Technology: Research suggests using AI to reduce bias in recruitment is counter-productive
  • Leave: Government backs Carer’s Leave Bill
  • Redundancy: Government backs Protection from Redundancy (Pregnancy and Family Leave) Bill

Gender Pay Gap: ONS 2022 gender pay gap data published

The Office for National Statistics (ONS) releases annual statistics on differences in pay between women and men by age, region, full-time and part-time work, and occupation as compiled from its Annual Survey of Hours and Earnings. The ONS analysis of the gender pay gap is calculated as the difference between average hourly earnings (excluding overtime) of men and women as a proportion of men’s average hourly earnings (excluding overtime) across all jobs in the UK. It does not measure the difference in pay between men and women doing the same job and is different from compulsory gender pay gap reporting.

The ONS encourages focus on long-term trends rather than year-on-year trends. It notes that the data for 2020 and 2021 was subject to uncertainty and should be treated with caution. This is due to earnings estimates being affected by changes in workforce composition and the furlough scheme during the COVID-19 pandemic, as well as disruption to data collection and lower response rates.

Over the past decade, the gender pay gap has fallen by approximately a quarter among full-time employees. In April 2022, the gender pay gap for full-time employees was 8.3%. While this is higher than the 2021 gap of 7.7%, it continues a downward trend since April 2019 when the gap was 9.0%.

In 2022, the occupation group for managers, directors and senior officials has seen the largest fall in its gender pay gap figure (10.6%) since the pre-pandemic April 2019 figure (16.3%). This reflects signs of more women holding higher-paid managerial roles. In terms of geography, the gender pay gap is higher in all English regions than in Scotland and Northern Ireland.

Other trends seen in 2021 remain:

  • The gender pay gap is much higher for full-time employees aged over 40 years (10.9%) than those aged below 40 years (3.2%). 
  • Higher earners experience a much larger difference in hourly pay between the sexes than lower-paid employees.

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Race Discrimination: 2021 survey considers perceptions and experiences of racism at work

Following a survey of 1,193 UK employees (507 White, 419 Asian, 267 Black), Pearn Kandola, a business psychology consultancy, has published a new report, Racism at Work in the UK 2021. The survey replicated the approach previously taken by Pearn Kandola in 2018 (see Racism at Work Survey Result, 2018), asking participants about their perceptions and experiences of racism at work and actions their employers have taken to combat racism.

Of the employees surveyed, 74.8% considered racism to be a problem in the workplace. Of the 52.2% who had witnessed racism at work, 29.8% confronted the perpetrator, 22.4% reported the incident to a manager or HR department while 28.3% took no action.

Racism at work was experienced by 34% of the respondents. Black respondents were 15.1 times more likely than White respondents, and 1.9 times more likely than Asian respondents, to experience workplace racism. Asian respondents were 8.1 times more likely to experience racism at workplace than White respondents. These results suggested that the likelihood of Black and Asian employees experiencing racism at work had generally increased between 2018 and 2021. For White respondents it had decreased.

Almost half of employees worked for organisations that had taken action to promote greater racial equality at work (49.7%). Most frequently this involved anti-racism training and general awareness raising. Internal policies and procedures were changed both to make them more inclusive and to make it easier to report racism to senior colleagues.

The report recommendations include recognition that experiences differ both between and within racial groups, and for employees to be trained to become active bystanders who know how to challenge racism.

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ACAS: Survey finds 1 in 3 employers feel under-equipped to support women during menopause

ACAS has reported on the outcome of a survey in which it commissioned YouGov to ask British businesses how well equipped they felt their workplaces were to support women going through the menopause. Responses indicated that while 46% felt either very or fairly well equipped, 33% considered that they were either not that well equipped or not equipped at all, and 21% of respondents did not know. With regard to confidence in managers having the necessary skills to support staff, 46% felt either very or fairly confident, 37% were either not very or not at all confident and 17% did not know.

ACAS advises that employers:

  • Develop a menopause policy that explains how the menopause can affect people differently and what support is available.
  • Provide awareness training for managers on the menopause and how to deal with it sensitively and fairly.
  • Consider making practical changes at work to help staff manage their symptoms, such as the availability of cold drinking water and temperature control.

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Trade Unions: New Transport Strikes Bill introduced to House of Commons

On 20 October 2022, the Transport Strikes (Minimum Service Levels) Bill had its first reading in the House of Commons. The Bill is intended to balance the right to strike with ensuring people can commute to work and make vital journeys to access education and healthcare during strikes. It will enable employers to ensure minimum service levels in specified transport services during strikes by requiring sufficient employees to work.

The Bill sets out the legal framework through which minimum service levels will be achieved using minimum service specifications, which include minimum service agreements, minimum service determinations and minimum service regulations. Employers and trade unions may negotiate and reach agreement on minimum service levels by entering into a minimum service agreement. Where the parties have failed to reach an agreement after three months, the matter will be referred to the Central Arbitration Committee (CAC) which will make a minimum service determination. The Bill provides that the Secretary of State may set minimum services levels through minimum service regulations which will apply where an agreement has not been entered into and a determination has not been made.

When a union gives an employer notice of a strike which relates to a specified transport service, and the employer and union are bound by a minimum service specification as regards the employer’s provision of that service, the employer may give a work notice to the union. That notice will identify the people required to work during the strike in order to ensure that minimum levels of service are provided and specify the work they will be required to carry out during the strike. Where an employer has given a work notice and the union fails to take reasonable steps to ensure that those identified in the notice do not take part in the strike, the union will not be protected from an action in tort by the employer.

The Transport Strikes (Minimum Service Levels) Act 2022, which will extend to England, Scotland and Wales, will come into force at the end of the period of two months beginning with the day on which it is passed.

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Technology: Research suggests using AI to reduce bias in recruitment is counter-productive

Cambridge University researchers have suggested that using Artificial Intelligence (AI) to reduce bias in recruitment is counter-productive in their report Does AI Debias Recruitment? Race, Gender, and AI’s “Eradication of Difference”.

The research considered the suggestion that using AI in recruitment can objectively assess candidates by removing gender and race from their systems and, in doing so, make recruitment fairer and help organisations to achieve their DEI goals and establish meritocratic cultures. The researchers built their own simplified AI recruitment tool, to rate candidates’ photographs for the “big five” personality traits: agreeableness, extroversion, openness, conscientiousness and neuroticism. However, they found the software’s predictions were affected by changes in people’s facial expressions, lighting and backgrounds, as well as their choice of clothing.

Recommendations made as a result of the research include developers shifting from trying to correct individual instances of bias to considering the broader inequalities that shape recruitment processes. Those, such as HR professionals, tasked with using technology must understand the limitations of AI and need suppliers to explain where AI is being used in their systems and how it is being used to evaluate candidates. The research also suggested that there remains an insufficient contribution from AI ethicists, regulators and policymakers in the scrutiny of AI-powered HR tools.

The Chartered Institute of Personnel and Development’s Resourcing and talent planning report (September 2022) found that only 8% of employers used AI to interpret job requirements and scan databases or the open web for relevant candidates and that 5% of employers used AI to either screen candidates (shortlisting based on a job description) or select them (through analysis of interview responses to match hiring criteria or using chatbots for first-stage interviews).

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Leave: Government backs Carer’s Leave Bill

On 21 October 2022, the government announced that it was backing the Carer’s Leave Bill, a Private Members’ Bill sponsored by Wendy Chamberlain MP. The Bill had its first reading in the House of Commons on 15 June 2022 and its second reading was passed with government support on 21 October 2022.

The Bill will introduce a new and flexible entitlement of one week’s unpaid leave per year for employees who are providing or arranging care. It will be available to eligible employees from the first day of their employment. They will be able to take the leave flexibly to suit their caring responsibilities and will not need to provide evidence of how the leave is used or who it will be used for which, it is hoped, should ensure a smooth process. Employees taking their carer’s leave entitlement will be subject to the same employment protections that are associated with other forms of family-related leave, meaning they will be protected from dismissal or any detriment as a result of having taken time off.

Between 16 March and 3 August 2020, the government consulted on its proposal to give employees who are also unpaid carers a week of unpaid leave each year to provide care. On 23 September 2021, the government response to the consultation confirmed that it would introduce a statutory right of up to one week of unpaid carer’s leave when Parliamentary time allowed.

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Redundancy: Government backs Protection from Redundancy (Pregnancy and Family Leave) Bill

On 21 October 2022, the government announced that it was backing the Protection from Redundancy (Pregnancy and Family Leave) Bill, a Private Members’ Bill sponsored by Dan Jarvis MP. The Bill had its first reading in the House of Commons on 15 June 2022 and its second reading was passed with government support on 21 October 2022.

Currently, the Employment Rights Act 1996 (ERA 1996) allows the Secretary of State to make regulations concerning redundancy “during” periods of maternity leave, adoption leave or shared parental leave. For example, under regulation 10 of the Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312), before making a woman on maternity leave redundant, an employer must offer her a suitable alternative vacancy where one is available with the employer or an associated employer.

The Bill will amend the ERA 1996 to enable the Secretary of State to make regulations providing protection against redundancy “during or after” an individual taking the relevant leave. It will also add a new provision to the ERA 1996 allowing for regulations about redundancy “during, or after” a “protected period of pregnancy”. While the detail will be provided by the regulations, the explanatory notes to the Bill suggest that, by extending protection after a protected period of pregnancy, a woman who has miscarried before informing her employer of her pregnancy will benefit from the redundancy protection.

On 25 January 2019, BEIS published a consultation on extending this protection to apply from the date an employee notifies the employer in writing of her pregnancy, to six months after her return from maternity leave. The consultation also asked whether this protection should be extended to similar types of leave such as adoption leave and shared parental leave. On 22 July 2019, the government published its response to the BEIS consultation suggesting that it would bring forward legislation when Parliamentary time permitted.

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

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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 News – April 2022

  • Employment,

  • 27th April 2022

Key personal Employment Law

This month the news is full of diversity and equality – calls to support and engage on a wide range of matters such as neurodiversity, LGBTQ+ and race and ethnicity.  There is also a focus on health – with updates on fit notes to calls for action on mental health and menopause.

  • Diversity: Neurodiversity in Business forum launched to support neurodiverse employees
  • Diversity & Equality: Government’s LGBT+ Business Champion issues call to engage
  • Equality: Government publishes response to Commission on Race and Ethnic Disparities report
  • Health: Fit notes may be issued digitally without a wet-ink signature from 6 April 2022
  • Mental Health: DHSC publishes discussion paper and call for evidence  
  • Menopause: Workplace pledge signed by over 600 employers

Diversity: Neurodiversity in Business forum launched to support neurodiverse employees

On 21 March 2022, Neurodiversity in Business (NiB) was launched at the Houses of Parliament to support neurodiverse employees in the workplace. Between 15% and 20% of the population are estimated to be neurodivergent. Dan Harris, Chief executive of NiB, states that although employers increasingly recognise the benefits of a neurodiverse workforce, neurodivergent employees need improved support. NiB and founding members, such as Accenture, AstraZeneca, Bank of England, Capita, Network Rail, Sky and Unilever, recognise that reasonable modifications can enable more neurodiversity in the workplace and also benefit sustainability. The new forum will work with organisations that support neurodiversity including Auticon, Ambitious about Autism, the ADHD Foundation, the British Dyslexia Association, Diversity and Ability and the National Autistic Society.

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Diversity & Equality: Government’s LGBT+ Business Champion issues call to engage

On 18 March 2022, the government’s LGBT+ Business Champion, Iain Anderson, issued a call to engage to employers, staff networks, trade unions and civil society organisations with practical experience of creating LGBT+ inclusive workplaces, supporting LGBT+ inclusion and improving outcomes and experiences for LGBT+ people. He is looking for practical examples that work of what businesses are doing to improve LGBT+ outcomes and experiences in the workplace. The call to engage is not for personal experiences or views.

The questions ask for information on the following issues:

  • The collection of LGBT+ diversity and inclusion data and how effective this has been.
  • How organisations have been able to improve the outcomes and experiences of LGBT+ employees in the workplace and how effective this has been. Where possible, respondents are asked to disaggregate measures taken in support of lesbian, gay, bisexual and trans employees.
  • In countries where LGBT+ people routinely experience discrimination, what organisations are doing to support the safety and advocacy of LGBT+ staff.
  • How organisations can have a positive social and economic impact on LGBT+ equality, including in countries where LGBT+ people routinely experience discrimination. In particular, comments are welcomed on impacts outside the organisation, for example, having a positive influence through supply chains, distributors and customers.

The consultation closes on 28 April 2022.

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Equality: Government publishes response to Commission on Race and Ethnic Disparities report

On 17 March, the government has published its response to the report of the Commission on Race and Ethnic Disparities made a number of recommendations to address ethnic and racial disparities across society. The response confirms that mandatory ethnicity pay gap reporting will not be introduced. However, organisations who choose to publish their figures will be required to publish a “diagnosis and action plan“, setting out reasons why disparities exist and what will be done to address them. Guidance on voluntary ethnicity pay gap reporting, to be published in summer 2022, will be designed to help employers address some of the challenges around ethnicity pay gap reporting. It will include case studies drawn from organisations which have already chosen to report on their ethnicity pay, setting a benchmark for what a good action plan might cover.

The report also tackles the use of artificial intelligence in recruitment processes and automated decision-making. A white paper, to be published later in the year, will deal with how to address potential racial bias in algorithmic decision-making. To ensure technological advances do not have a disproportionate impact on ethnic minority groups, the EHRC will advise on the safeguards needed and issue guidance that explains how to apply the Equality Act 2010 to algorithmic decision-making.

The government has accepted the Commission’s recommendation that the acronym BAME (Black, Asian and minority ethnic) is unhelpful, and it has stopped using the term in its own communications. It is more productive to consider the disparities and outcomes of specific ethnic, rather than homogenous, groups. Where it is absolutely necessary to draw a binary distinction between the ethnic majority and ethnic minorities, the government will use the term “people from ethnic minority backgrounds“. The response also states that terms such as “white privilege” can be seen as stigmatising and potentially divisive, as they have the unintended consequence of pitting groups against each other.

The response includes a package of other measures designed to improve diversity and inclusion, including additional funding for the EHRC, an “Inclusion at Work Panel” which will disseminate diversity resources to employers, and updated guidance for employers on positive action, to be published by the end of the year. 

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Health: Fit notes may be issued digitally without a wet-ink signature from 6 April 2022

In its July 2021 response to the 2019 consultation document “Health is everyone’s business: proposals to reduce ill health-related job loss“, the government committed to removing the statutory obstacles to the digital issuing of fit notes. Currently, fit notes must be signed in ink by the issuing doctor, although given the significant shift to virtual GP consultations since the outbreak of the COVID-19 pandemic, there has been increasing demand for fit notes to be provided digitally.

The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2022 (SI 2022/298) were made on 14 March 2022 and come into force on 6 April 2022. They amend the Social Security (Medical Evidence) Regulations 1976 (SI 1976/615) and the Statutory Sick Pay (Medical Evidence) Regulations 1985 (SI 1985/1604). The new Regulations prescribe a new form of fit note, which will be used in parallel with the existing version of the form. The Regulations remove the requirement for the fit note to be signed in ink and the new form of fit note no longer contains a signature box.

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Mental Health: DHSC publishes discussion paper and call for evidence  

The Department for Health and Social Care has published a discussion paper and call for evidence on improving mental health and wellbeing, which includes the development of a ten-year plan to reduce the prevalence, incidence and recurrence of mental ill-health.

The discussion paper suggests compassionate employers are needed, who will protect and promote positive mental wellbeing by understanding and meeting physical and mental needs in the workplace. Two key challenges that were identified through the Thriving at Work are reiterated in the document:

  1. the need for a clear role for employers to prevent the onset of mental health conditions and mental ill-health, and
  2. wider implementation of workplace interventions to support mental health.

The role for employers to support mental wellbeing is further highlighted in the discussion around early intervention. Employers are identified as an important source of support for employees who may not need “clinical” early interventions. This section also highlights that in those instances, employers may need support and information to provide support for a distressed employee.

The consultation is open to all, and responses will be collected through an online survey until 11.45 pm on 5 July 2022.

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Menopause: Workplace pledge signed by over 600 employers

More than 600 employers have signed the Menopause Workplace Pledge, which is part of a campaign by Wellbeing of Women. In signing the pledge, employers recognise that the menopause can be a workplace issue for which employees need support. Signatories commit to open, positive and respectful workplace dialogue about the menopause and to taking active steps to support employees affected by the menopause and informing them of the support offered. Active measures have already been undertaken by some signatories: the Royal Mail has run an internal campaign to normalise conversations about the menopause, Tesco plans to incorporate a breathable fabric into its uniform to help with hot flushes, and News UK has said it will cover the cost of NHS HRT prescriptions and provide desk fans.

Last week, a survey of 1,000 HR professionals, (conducted by YouGov on behalf of Irwin Mitchell) revealed almost three-quarters of employers (72%) do not have a menopause policy and that only 16% of employers train line-managers on the menopause. The CIPD has reminded employers that positive action, such as engaging with this pledge and having a policy that outlines available support, must be “underpinned by a culture where people are actively encouraged to have open and supportive conversations“. It has its own Guidance for employers on how to better manage those affected by menopause at work, which can be accessed here.

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

Back

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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