Employment law updates: important changes for employers

The latest UK employment and business immigration law changes for employers, HR professionals and in-house lawyers

14 November 2024

Employment law is constantly on the move. We keep track of the latest employment law changes so you don't have to. Below you'll find our regular round-up of legislation, case updates and helpful guides.

Employment law updates

Update posted: 14 November 2024

Legal Updates

Employment Rights Bill - employer's handbook

Don’t forget to check out our employer’s handbook on the Employment Rights Bill and beyond, which we have produced to help organisations get to grips with what will be a busy time ahead. In the handbook, we explain each of the key proposals (including those in the Bill and outside it) in an easy-to-read format, as well as offering our thoughts on the potential implications for employers.

Redundancy consultation

The Court of Appeal has clarified that there is no requirement for employers to carry out general workforce consultation in small-scale redundancy exercises in non-unionised workplaces in order for dismissals to be fair.

The respondent proposed to reduce the size of its recruitment team by two. The claimant scored lowest in the selection process and was placed at risk of redundancy. The respondent held three individual consultation meetings with the claimant before his role was confirmed as redundant but it did not carry out any consultation with the workforce more generally. In a judgment that surprised many commentators at the time, the EAT held that the claimant’s dismissal was unfair due to a failure to meaningfully consult at a formative stage. In particular, the EAT concluded that there was no good reason for the respondent to have failed to carry out general workforce consultation.

The Court of Appeal overturned the EAT’s findings. Whilst it noted that tribunals must assess the adequacy of consultation on a case-by-case basis, it also concluded that general workforce consultation should not be regarded as ‘the usual standard’ in smaller-scale redundancy situations in non-unionised workplaces. It noted that group meetings may be a useful way of ascertaining the views of employees, but the appropriateness of such meetings will depend on the circumstances. This judgment will be welcome clarification for employers following a period of some uncertainty after the EAT’s earlier decision.

(De Bank Haycocks v ADP RPO UK Limited)

Maternity - suitable alternative vacancies

The EAT has provided helpful guidance on when an employer’s obligation in a redundancy scenario to offer a suitable alternative vacancy to an employee on maternity leave is engaged.

The respondent proposed to reduce the number of team leader posts from 21 to 16. Following a scoring exercise, the claimant (who was on maternity leave) was one of the five team leaders who were selected for redundancy. At first instance, the tribunal held that the claimant’s dismissal was automatically unfair as the respondent had failed to offer the claimant one of the team leader roles, which the tribunal determined was a suitable alternative vacancy. On appeal, the EAT concluded that this was the wrong approach – as no new roles were created and there was simply a reduction in the number of existing roles, the remaining team leader roles were not suitable alternative vacancies. The EAT noted that, where there is a reduction in existing roles, the special protection for those on maternity leave does not override a valid selection process and it does not require the employee on maternity leave to be retained in favour of someone who scored higher in the selection process for that reduction in roles.

In April 2024, the obligation to offer suitable alternative vacancies was extended to pregnant employees and those who have returned from maternity, adoption or at least 6 weeks of shared parental leave. This case therefore has wider application and is useful clarification of when a role will be considered to be a vacancy for these purposes.

(Carnival Plc (T/A Carnival UK) v Hunter)

Duty to prevent sexual harassment

Following the introduction last month of the new duty to prevent sexual harassment of their workers, the Equality and Human Rights Commission (EHRC) has issued new guidance for employers. Sitting alongside its technical guidance and employer 8-step guide, the new resources include a template action plan and monitoring log. They also include a template checklist which was originally designed for the hospitality sector, but the EHRC explains can be adapted to suit different workplaces.

For more information on the new duty and what it means for employers, check out our briefing here.

EHRC resources >

Event

Webinar: Managing data protection challenges: strategies for HR

In this webinar, we will explain some of the key data protection issues for HR (including managing data subject access requests, employee monitoring, and handling complaints) and will share practical tips and solutions.

RSVP >

Thought-leadership, themes and trends

Deploying artificial intelligence

Katie Russell was pleased to contribute to the Scottish Legal Review in The Scotsman last week. Katie shared her thoughts on the benefits of employers engaging with their employees as they deploy AI and embark on their digital journey.

Team news

We are delighted to welcome Carlene Nicol to our team. Carlene, who joins as a senior associate in our Bristol office, advises employers on a broad range of contentious and non-contentious employment and HR issues. She has particular experience in multi-jurisdictional project work, the employment aspects of corporate transactions and defending equal pay claims.

Update posted: 31 October 2024

Legal Updates

Employment Rights Bill - employer's handbook

We will shortly be launching our employer’s handbook on the Employment Rights Bill and other proposed changes. This will be a go-to resource for employers to help you navigate the road ahead. In the handbook (which will be available to our mailing list and via our socials next week), we will look at each of the key proposed reforms and consider what they mean for employers.

In the meantime, for a recap of which of Labour’s proposals made it into the Bill and which were left out, why not check out our initial briefing below. If you would like to discuss how the Bill might impact your business, please contact Luke Bowery or your usual employment team contact.

Employment Rights Bill - consultations and call for evidence

The government has launched a call for evidence on the Employment Rights Bill, encouraging respondents to submit written evidence to the House of Commons Public Bill Committee as soon as possible. That Committee is expected to report to the House of Commons on 21 January 2025.

The government has also launched four consultations linked to several reforms contained in the Bill and the Next Steps to Make Work Pay document. The consultations are on:

the remedies available in collective redundancy and fire and rehire cases;
how the Employment Rights Bill reforms relating to zero hours workers (including the right to a guaranteed hours contract and reasonable notice of shifts) could apply to agency workers;
a range of industrial relations reforms; and
the percentage of average weekly earnings that should be used for the new rate of Statutory Sick Pay.

The first three consultations close on 2 December 2024, with the SSP consultation set to close on 4 December 2024.

Call for evidence >

Consultations >

Autumn Budget news

One of the headline points from yesterday’s Autumn Budget was the news that employer National Insurance contributions (NICs) will rise from 13.8% to 15% from 6 April 2025. From the same date, the threshold at which employers start paying NICs on a worker's earnings will be lowered from £9,100 per year to £5,000 per year.

Ahead of the Budget, the government also announced increases to the National Minimum Wage. Based on recommendations from the Low Pay Commission, the rates include an increase to the rate for 18 to 20 year olds that narrows the gap between that and the National Living Wage (NLW) in anticipation of the plan for the NLW (which currently applies to those aged 21 and over) to be expanded in future years to apply to those aged 18 and over.

The new rates, which apply from 1 April 2025, will be:

£12.21 per hour for workers aged 21 and over;
£10.00 per hour for 18 to 20 year olds; and
£7.55 per hour for 16 to 17 year olds and apprentices.

Acas sexual harassment guidance

Acas has updated its guidance on sexual harassment to reflect the new duty for employers to take reasonable steps to prevent sexual harassment of their workers, which came into force on 26 October 2024. You can read the updated Acas guidance here. For more information on the new duty and what it means for employers, check out our briefing below.

‘Fire and rehire’ compensation

The government has reinstated draft legislation to extend the power that tribunals have to award an uplift of compensation where an employer has unreasonably failed to comply with the Code of Practice on dismissal and re-engagement.

Since the Code came into force on 18 July 2024, tribunals have had the power to increase awards for certain employment tribunal claims (including unfair dismissal) by up to 25% where the employer unreasonably fails to comply with the Code. The previous government had intended to extend these powers to enable tribunals to order an uplift of the protective award that can be made where an employer has failed to comply with its collective consultation obligations. However, the relevant legislation did not make it through in time before Parliament was dissolved prior to the election.

Last week, the current government introduced draft legislation on this point, meaning that the power for tribunals to uplift protective awards is now expected to come into effect from 20 January 2025. Protective awards are capped at 90 days’ pay so, with a 25% uplift applied, these awards could equate to up to 112.5 days’ pay.

Thought-leadership, themes and trends

Ch-ch-ch-changes: more tipping changes on the way

Just weeks after the Employment (Allocation of Tips) Act 2023 came into force, further changes to the way employers manage tips are on the way. In our latest blog post, Eilidh Wood and Shannon Willett explore the proposed additional changes to tipping practices contained in the Employment Rights Bill and the potential impact on employers.

Event

Managing data protection challenges: strategies for HR

Date: 26 November 2024
Time: 12pm - 1pm

RSVP >

Update posted: 17 October 2024

Legal Updates

Employment Rights Bill

After its publication last week, the Employment Rights Bill continues to dominate the headlines in the HR and People space. For a recap of which of Labour’s proposals made it into the Bill and which were left out, you can find our initial briefing below.

Over the next few weeks, we’re going to provide more in-depth analysis of the proposals and what they mean for employers. Watch this space for our deeper dive updates on the Bill, designed to help you and your business navigate the changes ahead. In the meantime, if you would like to discuss how the Bill might impact your business, please contact Luke Bowery or your usual employment team contact.

'This Bill means business'

On the topic of the Employment Rights Bill, Luke Bowery was pleased to contribute to a Personnel Today article exploring the impact of the Bill. Luke has also been quoted in The Times and featured in ‘legal comment of the week’ in Edward Fennell’s Legal Diary.

Preventing sexual harassment

The new duty for employers to take reasonable steps to prevent sexual harassment at work comes into force in less than two weeks so the clock is ticking on employers’ preparations for this important change in the law. As it is a proactive duty, employers need to anticipate scenarios when their workers may be subject to sexual harassment and take pre-emptive action to prevent harassment from taking place.

In our latest briefing, we look at the new duty and what employers can do to prepare.

Don’t forget to check out our short video, in which Huw Cooke discusses five key things you need to know about the new duty. We have also posted a new blog post, in which we pick out some important additions and clarifications contained in the updated EHRC technical guidance on sexual harassment and harassment at work.

Baldness comment was harassment related to sex

The EAT has upheld a male employee’s claim that he was subjected to harassment related to sex when a colleague called him a ‘bald [expletive]’ during an argument.

In order for a harassment claim to be made out, the unwanted conduct needs to be ‘related to the protected characteristic’ - in this case, sex. The respondent argued that the baldness comment was not ‘related to’ the claimant’s sex, as both men and woman may be bald. The tribunal rejected the respondent’s argument, noting that baldness is much more prevalent in men and that it is much more likely that the person on the receiving end of a remark about baldness would be male.

On appeal, the EAT upheld the harassment claim. It found that the tribunal was right to recognise that baldness is more prevalent in men and to conclude therefore that the comment was inherently related to sex. The EAT confirmed that the subject matter of the unwanted conduct does not need to be something that is exclusive to the person’s sex. The fact that someone of the opposite sex may share the same feature does not automatically defeat a harassment claim.

(British Bung Manufacturing Company Ltd and another v Finn)

Event

Webinar: Pensions Webinar for Sponsors of DB Pension Schemes

Join our Pension team’s free webinar for employers with DB pension schemes, which will also be relevant to trustees and anyone involved in DB pensions. Check out the registration page for more details of the topics that the team will cover.

Date: 23 October 2024
Time: 12 pm - 1 pm

RSVP >

Update posted: 3 October 2024

Legal Updates

Preventing sexual harassment

Ahead of the new duty for employers to take reasonable steps to prevent sexual harassment at work coming into force on 26 October, the Equality and Human Rights Commission (EHRC) has published an updated version of its technical guidance on sexual harassment and harassment at work. It has also published a new employer 8-step guide on preventing sexual harassment at work.

Some key additions to the technical guidance include:

Confirmation that an employer is unlikely to be able to comply with the new duty unless it carries out a risk assessment.
Additional factors that may be relevant when determining whether a step is reasonable, including the sector that the employer operates in, any regulatory standards and whether any steps taken have been effective.
New illustrative examples (one for a large construction company and one for a hospital) to help explain what steps may be reasonable.
A new provision noting that employers should take steps to prevent all types of harassment, notwithstanding the fact that the preventative duty only applies to sexual harassment.
Some factors that may increase the risk of sexual harassment, including a male-dominated workforce, a workplace culture that permits crude or sexist ‘banter’, gendered power imbalances and workplaces that permit alcohol consumption.
Employers should be preparing now for the new duty. As it is a proactive duty, as an employer, you need to anticipate scenarios when your workers may be subject to sexual harassment and take pre-emptive action to prevent harassment from taking place. To help you comply, Huw Cooke, discusses five key things you need to know about the new duty in this short video.

Watch now >

Unfair dismissal and probationary periods

Ahead of the release of the Employment Rights Bill, it has been reported that, as part of the shift to make unfair dismissal a ‘day one’ right, employers will be permitted to use probationary periods of up to 6 months for new staff. In its ‘Plan to Make Work Pay’ (MWP) published during the election, the Labour Party indicated that its planned changes would not prevent fair dismissals during ‘probationary periods with fair and transparent rules and processes’. In addition, both MWP and the briefing notes which accompanied the King’s Speech confirmed that employers will be able to ‘operate probationary periods to assess new hires’.

How this probationary period exception will operate in practice and what process an employer will need to follow when dismissing during probationary periods remains to be seen. More information is expected in the bill next week. Whilst we wait for further details, you can read more about the government’s proposals for employment law reform as set out in MWP in our article below.

Growth and skills levy

Last week, the government announced a new growth and skills levy which will replace the current apprenticeship levy. In its press release, the government revealed some of the details of its planned apprenticeship reforms, including:

The new levy will focus on foundation apprenticeships providing routes into critical sectors.
The levy will allow funding for shorter apprenticeships, to give learners and employers greater flexibility.
Businesses will be asked to fund more level 7 apprenticeships (those equivalent to a master’s degree) outside of the new levy.

The full scope of these reforms and the new levy will be set out by the Department for Education in due course.

Thought-leadership, themes and trends

New tipping rules

Important new tipping rules, including a new duty on employers to ensure that all qualifying tips are allocated fairly between workers, came into effect earlier this week. To help employers navigate the changes, the Department for Business & Trade issued new non-statutory guidance on distributing tips fairly. For more information on the new rules, don’t forget to check out our blog post here.

Eilidh Wood was pleased to be quoted in a Personnel Today article marking the implementation date for the new rules and looking at the key principles now governing the allocation of tips.

Immigration changes

Last week, the government announced measures it intends to take to reduce the UK’s reliance on overseas labour and bring net migration down. Hannah Malone picks out some of these measures in her latest blog post, which you can read below.

Update posted: 19 September 2024

Legal Updates

Termination of permanent benefits

The Supreme Court has reinstated an injunction preventing an employer from using termination and re-engagement (often referred to as 'fire and rehire') to remove employees’ contractual entitlements to benefits described as ‘permanent’.

Following a restructure in 2007, Tesco entered into a collective agreement with its recognised trade union (USDAW) under which it agreed to pay ‘retained pay’ to employees who agreed to relocate. The retained pay, which was incorporated into employees’ contracts of employment, was described in relevant documents as a 'permanent feature' and could only be removed or amended in certain limited circumstances. In 2021, Tesco sought to end the entitlement to retained pay by offering affected employees a lump sum payment if they agreed to the removal of the benefit. Employees were informed that, if they did not agree, they would be dismissed and re-engaged on the same terms minus the retained pay. USDAW and several employees applied to the High Court for an injunction preventing this.

Granting the injunction, the High Court implied a term into the affected employees’ contracts preventing the employer from taking this step. The injunction was overturned by the Court of Appeal and the case progressed to the Supreme Court. Last week, the Supreme Court issued its judgment restoring the injunction and finding that a term should be implied into employees’ contracts stipulating that the employer’s right to dismiss could not be exercised for the purpose of depriving the employees of their right to permanent retained pay. It noted that retained pay was an incentive for employees to agree to relocate and it was inconceivable that the parties intended that the employer would have the unilateral right to dismiss employees for the purpose of bringing retained pay to an end.

Although the case is of most relevance where benefits have been stated to be ‘permanent’ (which is relatively uncommon), the Court’s analysis could also be relevant in other circumstances too. For example, it is interesting to note that the Court took into account pre-contractual material (including statements made to affected staff by Tesco and USDAW prior to the collective agreement) when interpreting the meaning of the contractual terms.

Employers will also need to keep in mind any future changes the Labour government might make to the practice of ‘fire and rehire’. The government has committed to ‘ending the scourge’ of ‘fire and rehire’, limiting the practice to specific circumstances where there is genuinely no alternative. Further details are expected in the Employment Rights bill which is due to be published in October.

(Tesco Stores Limited v USDAW & others)

Supporting disabled workers with hybrid working

The Equality and Human Rights Commission (EHRC) has issued new guidance for employers on supporting disabled workers with hybrid working. The new guidance, which is designed for small and medium sized organisations, aims to help employers understand their legal obligations including the duty to make reasonable adjustments. It also details some practical steps that employers can take to best support disabled workers with hybrid working.

The guidance includes tips on how to identify barriers to effective hybrid working and some conversation prompts to support managers with conversations around workers' individual needs.

Read the guidance >

Scope of protected philosophical beliefs

The EAT has held that a claimant’s belief in English nationalism was not a protected philosophical belief under the Equality Act 2010.

After the claimant’s agency assignment with an NHS Trust was terminated, he brought a tribunal claim alleging that the real reason for the termination was his belief in English nationalism, which included anti-Islamic views. The tribunal held that the claimant’s belief did not meet one of the Equality Act requirements for a belief to be protected, namely it ‘must be worthy of respect in a democratic society, must not be incompatible with human dignity and not conflict with the fundamental rights of others’. The claimant appealed.

Rejecting the claimant’s appeal, the EAT noted the tribunal’s findings that the claimant’s belief amounted to ‘a generalised form of harassment targeting one particular religion’ and that there was a ‘disdainful and prejudiced focus on Islam’, The EAT noted how these findings demonstrated that his belief was more than offensive, shocking or disturbing. As his belief was not protected, the claimant was not eligible to bring a claim for discrimination on the grounds of philosophical belief.

Cases such as this are very fact-specific as they depend on the particular beliefs of the individual, but this case is a useful example of where a tribunal might draw a distinction between a belief that is protected and one that goes beyond the scope of protection.

(Thomas v Surrey and Borders Partnership)

Thought-leadership, themes and trends

Tipping point

1 October 2024 is a big day in the hospitality sector, with important new tipping rules coming into effect. In this blog post, Eilidh Wood and Shannon Willett consider what the new rules mean for employers.

Preventing sexual harassment

Many organisations are busy preparing for the new duty to take reasonable steps to prevent sexual harassment, which comes into force on 26 October 2024. Don’t forget to check out our briefing and blog post below, which pick out some of the key preparatory steps employers should be exploring now.

Blog post >

Briefing >

Coming next week...

To support you further in your preparations for the new duty to prevent sexual harassment of your staff, don't miss our video with the 5 key things that you need to know to ensure your business is well prepared for these upcoming changes.

Update posted: 5 September 2024

Legal Updates

Preventing sexual harassment

With the new duty to take reasonable steps to prevent sexual harassment coming into force next month (on 26 October), many organisations are busy preparing. Don’t forget to check out our briefing and blog post below, which pick out some of the key preparatory steps employers should be exploring now.

Blog post >

Briefing >

Flexible working reform

With the Employment Rights Bill due to be published by mid-October, we will soon have more detail on the new government’s plans for employment law reform. Whilst we wait for more detail, several of the policies set out in Labour’s ‘Plan to Make Work Pay’ (MWP) have been hitting the headlines.

In recent days, flexible working rights have been in the spotlight with a particular focus on a compressed hours four-day working week. It is safe to say that there has been some confusion in some press reports over the new government’s proposals and how they compare to the current position. Currently, all employees from day one of their employment may apply for a change to their terms and conditions relating to (amongst other things) a change to their working hours or place of work. Employers must deal with requests in a reasonable manner and can only turn a request down for one or more of eight statutory grounds.

In MWP, the Labour party proposed to make ‘flexible working the default…except where it is not reasonably feasible’. It is not clear what this will mean in practice, but the most likely interpretation is that the existing right to request flexible working will be strengthened by restricting the employer’s ability to turn down a request. If that is the new government’s intention, it would not go as far as introducing a concrete right to a four-day week or any other flexible working pattern as some of the press reports have been indicating. Whilst full details are awaited, it seems likely that any changes will represent an evolution of the existing framework rather than a wholesale shift towards an absolute right to flexible working.

Predictable working patterns

The government reportedly intends not to implement legislation which would give certain workers and agency workers a new right to request a predictable working pattern. The new right is contained in the Workers (Predictable Terms and Conditions) Act 2023, which was passed in September 2023 but is yet to take effect as we await secondary legislation to confirm some of the details of the right including the commencement date. A summary of the right can be found in our update here.

It appears that the new government’s own proposals will supersede the right to request a predictable working pattern. In MWP, it outlined plans for tackling zero hours contracts and providing workers with more security and predictability, including a right for each worker to have a contract that reflects the number of hours they regularly work. It appears that the aim of not implementing the 2023 Act as an interim measure is to avoid overlap of similar rights and potential confusion for employers and workers. We await further details of the new government’s proposals, as well as confirmation that the 2023 Act will not be brought into force.

Thought-leadership, themes and trends

Bodycams in the workplace

With the news that Pret A Manger is trialling body-worn recording devices to curb harassment of staff, Ellen Goodland has written an article for People Management exploring the data protection and employment law considerations of such a move.

Migration and sponsorship stats

April 2024 brought significant changes to UK immigration rules, including an increase to the general salary threshold for Skilled Workers. In this blog post, Katie Russell and Hayley Ainsworth take a look at the visa and sponsorship figures for the first full quarter since the changes came into effect.

Team news

We are delighted to welcome Chloe Grant and Hayley Ainsworth to our team. Chloe joins as an associate in our Edinburgh office, and Hayley joins as a solicitor in our Bristol office. A former teacher, Chloe advises on all aspects of UK employment law and has significant experience in conducting complex employment tribunal claims. Having trained at Burges Salmon, Hayley re-joins the firm and advises employers and employees on a range of contentious and non-contentious matters, as well as advising clients on business immigration matters.

We are also thrilled that newly qualified solicitors Shannon Willett and Sam Efiong have become permanent members of our team. Both Shannon and Sam completed their training contracts with Burges Salmon, including seats in the employment team.

Update posted: 22 August 2024

Legal Updates

Employment Rights Bill

Last week, the government met with business leaders and trade unions to discuss its plans for employment law reform. The Employment Rights Bill and the new government’s ‘Plan to Make Work Pay’ were both topics of conversation during the meeting.

The government has indicated that it will introduce the Bill by early October (at the latest) and that it will also explore other ways to deliver some of its proposed changes, including through secondary legislation or non-legislative routes. We have already seen some of the proposals moving forwards, including through changes to the Low Pay Commission’s remit for 2024. More details about last week’s meeting can be found here.

One of the Make Work Pay proposals that has been hitting the headlines this week is the ‘right to switch off’, enabling employees to disconnect from work and limiting the contact they can receive from their employer outside of working hours. The exact mechanism that the government intends to use to introduce this new right is not yet known, with different models from other jurisdictions (including Ireland and Belgium) under consideration. Although employees are not currently expected to be able to bring a freestanding claim for a breach of the new right, one option reportedly under consideration could see employers facing a possible uplift on some compensation awards where they are repeatedly in breach of the new right.

For more in-depth consideration of the government’s proposals for employment law reform, don’t forget to check out our article below.

Strike ballot thresholds

Following on from our minimum services levels update in the last edition of Employment Edit, it has been reported that the government also intends to go ahead with its proposal to repeal certain thresholds for industrial action ballots that were brought in under the Trade Union Act 2016. The 2016 Act introduced a requirement for a 50% turnout for an industrial action ballot to be valid. It also extended the minimum length of notice of industrial action that a trade union must give to an employer from seven days to fourteen and introduced a limit of six months on the duration of the industrial action, meaning that fresh notifications and ballots must be run after six months.

Repeal of the 2016 Act was one of the proposals outlined in the Plan to Make Work Pay. It appears that the repeal will be included in the Employment Rights Bill, once it is tabled in the autumn, but it is not yet known when the change would take effect from. For more details on worker voice and the new government’s plans for trade union and industrial relations reform, see our article below.

Indirect discrimination

The EAT has held that, in order to bring an indirect discrimination claim, a claimant does not have to have the same protected characteristic as the disadvantaged group as long as they experience the same disadvantage.

The respondent airline introduced new shift patterns for its cabin crew. A group of claimants brought claims arguing, amongst other things, that the scheduling changes were indirectly discriminatory as they put those who lived abroad and commuted to Heathrow from abroad (predominantly non-British nationals) and those with caring responsibilities (predominantly women) at a particular disadvantage. The claims were brought by some claimants who had the relevant protected characteristic and some claimants who did not. The latter group included a British national commuting from France and a man with caring responsibilities.

The question for the EAT to determine was whether indirect race and sex discrimination protections extended to those claimants (including the British national commuting from France and the man with caring responsibilities) who did not have the protected characteristic of the disadvantaged group. The EAT held that they should. Although the wording of the Equality Act 2010 did not (at the time) cover claims of this type, it was appropriate to read wording into the Act to allow such a claim in line with a pre-Brexit judgment of the Court of Justice of the EU which held that indirect discrimination protections extended to those who do not share the same protected characteristic as the disadvantaged group. The EAT took into account the fact that the aim of indirect discrimination is to ‘level the playing field’ by removing rules and practices which put protected groups at a disadvantage.

The Equality Act 2010 was amended with effect from 1 January this year to expressly allow indirect discrimination complaints where a claimant suffers ‘substantially the same disadvantage’ as the protected group. This legislative change and the EAT’s decision both reaffirm the importance of employers considering if any other individuals, outside of the protected group(s), might be similarly disadvantaged by a policy or arrangement.

(British Airways plc v Rollett and others)

Thought-leadership, themes and trends

Preventing sexual harassment

Many organisations are busy preparing for the new duty to take reasonable steps to prevent sexual harassment. There is a lot for organisations to consider and the implementation date of 26 October 2024 is fast approaching. Our briefing and blog post below pick out some of the key preparatory steps employers should be exploring now.

Blog post >

Briefing >

Update posted: 08 August 2024

Legal Updates

National minimum wage changes

In the briefing notes that accompanied the King’s Speech in July, the government indicated that it intends to make changes to the living wage to ensure that it takes account of the cost of living. In addition, it promised to remove living wage age bands, which it described as discriminatory. Both of these promises also featured in the Labour Party’s Plan to Make Work Pay.

To start the ball rolling on these changes, last week the government issued a policy paper detailing the Low Pay Commission’s remit for 2024. In particular, the government asked the Commission to take account of the cost of living when it recommends the rate of National Living Wage (NLW) which should apply from April 2025. It also asked the Commission to recommend a National Minimum Wage rate for 18 to 20 year-olds that narrows the gap to the main NLW rate (which currently applies to those aged 21 and over). This would be an interim measure whilst the government takes steps to move towards a single adult rate.

Minimum service levels

Earlier this week, the government announced that it will repeal the minimum service levels legislation that was introduced last year. The legislation introduced the option for employers in certain public services (such as health services and public transport) to issue work notices identifying those workers who are required to work during strike action in order to meet the service levels specified in regulations. If no work notices are issued, then the legislation does not have any impact. The option to issue work notices has not been utilised by relevant employers to date.

Repeal of the legislation will form part of the Employment Rights Bill, a draft of which is expected to be introduced to Parliament within the first 100 days of the new government. As an interim measure and whilst the option for employers to issue works notice remains live, the government has written to relevant public sector employers encouraging them not to use the minimum service levels legislation and has included a similar message for all affected employers in this update.

For a closer look at the new government’s proposals for trade union and industrial relations reform, check out our recent article on the topic – it’s the top item in our thought leadership segment below.

Tipping changes in force from 1 October 2024

We now have confirmation that new tipping obligations will come into force on 1 October 2024. The Employment (Allocation of Tips) Act 2023 was passed last year and an accompanying code of practice on the fair and transparent distribution of tips was approved by the House of Lords shortly before the election. However, both the Act and the code were awaiting a commencement date until last week when it was confirmed that both the measures under the Act and the code will come into force on 1 October 2024.

The Act introduces a range of new measures, including a new duty on employers to ensure that all qualifying tips are allocated fairly between workers and a requirement for relevant employers to have a written policy on how they deal with tips. The code includes guidance on what types of payment constitute qualifying tips and how an employer should choose the factors to determine the allocation and distribution of such tips. Affected employers need to take steps now to ensure that they have appropriate policies and processes in place ahead of October.

Read the code here >

Causing or inducing discrimination

The EAT has held that a charity did not cause or induce a barristers’ chambers to discriminate against one of its barristers.

The charity made a complaint to the chambers after the claimant, who holds gender critical beliefs, posted several tweets on Twitter (now X). The chambers upheld the complaint in relation to two of the claimant’s tweets and asked her to delete the tweets. The claimant issued a tribunal claim alleging, amongst other things, that the decision to uphold the complaint was discrimination by the chambers on the ground of her protected belief and that the charity had caused or induced that discrimination. The tribunal upheld this allegation against the chambers but found that the charity had not caused or induced that discrimination. This latter point was appealed to the EAT.

The EAT dismissed the appeal, noting the tribunal’s findings that the complaint was made by the charity as a protest, did not have any specific aim in mind (other than perhaps a public denial by the chambers of any association with the claimant’s views) and did not contain any threat. The EAT agreed that it was not fair, reasonable or just to find the charity liable in these circumstances and so upheld the findings that the charity had not caused or induced the discrimination under the Equality Act 2010. It noted that ‘responsibility for determining the complaint in a discriminatory way lay only with’ the chambers.

(Bailey v Stonewall Equality Ltd and others)

Thought-leadership, themes and trends

Trade union and industrial relations reform

In its Plan to Make Work Pay, the Labour Party shone a spotlight on strengthening worker voice. The new government has backed this up in recent weeks, indicating in the King’s Speech briefing notes that the Employment Rights Bill will address Labour’s proposals to update trade union legislation.

In our latest article, we take a closer look at worker voice and the new government’s plans for trade union and industrial relations reform.

New government's plans for reform

Don’t forget to check out our other recent articles looking at what the new Labour government is proposing for employment and business immigration reform.

Employment reforms >

Business immigration reforms >

Preventing sexual harassment

The October implementation date for the new duty to take reasonable steps to prevent sexual harassment is fast approaching. In this blog post, Kate Redshaw and Huw Cooke consider how employers should be preparing for the new duty.

Competition law guide for employers

The Competition and Markets Authority (CMA) has identified tackling anti-competitive behaviours in UK labour markets as one of its current areas of focus. Employers need to be mindful of this, particularly as the consequences of breach can be severe. However, identifying potentially anti-competitive behaviours and practices is not straightforward and employers may find themselves inadvertently in breach. Our short guide provides more detail on prohibited behaviours and next steps to help identify areas of risk.

Access the guide here >

Update posted: 25 July 2024

New government’s plans for reform

Prior to the election, the Labour Party set out an ambitious vision for employment law reform in its ‘Plan to Make Work Pay’ (MWP). Following last week’s King’s Speech and accompanying briefing notes (which we discussed in this blog post), we have a clearer idea of the new government’s priorities and legislative agenda. We have now updated our article on the proposals set out in MWP to reflect the latest position. Check it out below.

In addition, we have also taken a closer look at what the new government is proposing on the business immigration front and what its proposals could mean for employers recruiting overseas nationals.

Legal updates

Preventing sexual harassment

From 26 October 2024, employers will be under a proactive duty to take reasonable steps to prevent sexual harassment of their workers and employers should be taking steps to address this now. Ahead of the new duty coming into effect, the Equality and Human Rights Commission (EHRC) has issued a consultation on the changes that it proposes to make to its technical guidance to take the duty into account.

In this b log post, Kate Redshaw and Huw Cooke pick out some key takeaways from the draft changes and consider what employers should be doing. In particular, they note the nature of the duty as an anticipatory duty meaning it is crucial that employers anticipate scenarios when its workers may be subject to sexual harassment in the course of employment and put in place pre-emptive measures to prevent such harassment from occurring. We consider how employers can prepare for the new duty in more depth in our article below. If you need advice on how this new duty will affect your organisation, please get in touch with your usual Burges Salmon contact or contact employmentsupport@burges-salmon.com.

'Fire and rehire'

A new statutory code of practice on dismissal and re-engagement (often referred to as ‘fire and rehire’) came into force on 18 July 2024. Although prior to the election the Labour Party criticised the code for not going far enough, the Department for Business and Trade issued a statement last week explaining that the government has decided to allow the code to come into force as planned to provide a small additional level of protection. It then intends to bring forward a strengthened version of the code alongside its other planned reforms to fire and rehire set out in its Plan to Make Work Pay, which we explore in our article here.

The newly in force code (which can be found here) sets out the steps that an employer should follow when it is contemplating changes to terms and conditions and envisages it might dismiss employees if they do not agree to the proposed changes. Where an employer has unreasonably failed to comply with the code, awards for relevant employment tribunal claims can also be increased by up to 25%.

Discriminatory adverts

The EHRC has amended its guidance on discriminatory adverts. The guidance aims to help employers and organisations ensure that adverts are lawful and do not discriminate. In particular, EHRC has updated the guidance on when an advert can restrict a job to those with a particular protected characteristic where it is necessary for the role. This is known as the ‘occupational requirement’ exemption under the Equality Act 2010.

The updated guidance contains examples of occupational requirements and when such a requirement might be a proportionate means of achieving a legitimate aim. The guidance also makes clear that, where the occupational requirement relates to a person’s sex, ‘sex’ means a person’s legal sex as recorded on their birth certificate or their Gender Recognition Certificate.

Thought-leadership, themes and trends

Competition law guide for employers

In this short guide, we discuss:

prohibited behaviours and how employers can potentially be in breach of competition law;
how the CMA finds out about potential breaches and its investigative powers; and
suggested next steps to help identify areas of risk.

Access the guide here >

AI Matters newsletter

If you are looking to keep up-to-date on all things AI, don’t forget to sign-up to our new bi-monthly newsletter – ‘AI Matters’. Brought to you by our market-leading AI regulation and sector teams, AI Matters aims to empower leaders with timely and concise updates, analysis, and resources to navigate the evolving framework of AI laws and regulations.

Update posted: 28 June 2024

Thought-leadership, themes and trends

Manifesto news - employment proposals

Election news continues to dominate the headlines, with the last fortnight being full of manifesto news. Our team has been busy writing a series of blog posts exploring the main political parties’ employment-related proposals and what they could mean for employers. These blog posts can be found here:

Labour proposals >

Conservative and Liberal Democrat proposals >

SNP proposals >

Given the Labour Party has set out extensive employment law proposals during its campaign (particularly in its ‘Plan to Make Work Pay’), we have taken a deeper dive into how its proposals could impact employers. For more detail on Labour’s employment law proposals and its manifesto pledges, check out our article here.

Labour's Plan to Make Work Pay >

Manifesto news - business immigration

Business immigration is another topic under the spotlight in the lead up to the election. To help you keep on top of the key immigration takeaways in the manifestos, Hannah Malone has summarised the key proposals for legal migration from Labour, the Conservatives, the Liberal Democrats and the Scottish National Party. As well as her blog being published on our website, Hannah has had parts of her blog included in a Personnel Today article on the same topic.

Regulating AI

With regulation of AI continuing to be a hot topic in the UK and elsewhere, Ellen Goodland and Victoria McCarron have summarised key points from the Equality and Human Rights Commission’s (EHRC) response to the updated government White Paper on the topic. Check out their blog post below for more detail, including on the EHRC’s principles-based approach and collaboration with other regulators.

Legal updates

Redundancy consultation

The EAT has reiterated that, in redundancy situations, consultation must take place at a time when it can potentially make a difference.

The claimant, who was based in the North West, worked as a liaison officer fundraising for a charity. Three of his colleagues performed similar roles to him, but in different geographic locations. After community fundraising reduced during the COVID-19 pandemic, the claimant’s role was placed at risk of redundancy. He was placed in a pool of one and his colleagues in similar roles were not placed at risk. Following three consultation meetings, the claimant was dismissed by reason of redundancy. He brought an unfair dismissal claim, arguing (amongst other things) that consultation was not effective because it took place after he was placed into a pool of one and he was not consulted on the choice of pool.

Dismissing his claim, the tribunal found that the claimant’s role was unique, and he was in a self-selecting pool of one. However, the EAT disagreed, noting that consultation only took place after the key decision (identification of the pool of one) had been made. Consultation was not meaningful as the claimant could not make meaningful proposals about him being placed in a pool of one. The dismissal was therefore procedurally unfair.

(Valimulla v Al-Khair Foundation)

Settlement of future claims

The EAT has confirmed that future claims can be validly settled under settlement agreements, as long as the terms of the agreement are sufficiently clear.

The claimant had been absent from work as a result of ill-health since 2008. In 2012, he raised a grievance that included a complaint about him not having been placed on the respondent’s disability plan. The parties entered into a compromise agreement (the predecessor to settlement agreements), under which the claimant agreed to move onto the disability plan and to receive fixed disability salary payments. The agreement included a waiver of disability discrimination complaints, with a carve-out relating to future claims. Importantly, however, this carve-out did not apply to issues connected to the grievance or the claimant’s transfer to the disability plan. The claimant later sought to bring a disability discrimination complaint on the basis that his salary payments had not increased.

The tribunal found that the claimant was barred from bringing this claim as a result of the terms of the compromise agreement. Upholding this finding, the EAT rejected the claimant’s argument that future claims cannot be waived under settlement agreements. Instead, it agreed with the findings from a similar case in the Court of Session in Scotland and held that future claims can be validly waived under qualifying settlement (or compromise) agreements, as long as the claims to be waived are identified using appropriately clear language. It did not make a difference that the claimant in this case was a continuing employee – there was nothing in principle preventing a waiver of future claims. As the claimant’s claims were covered by the wording of the waiver in the agreement, they were dismissed.

(Clifford v IBM United Kingdom Ltd)

Update posted: 13 June 2024

Legal updates

Manifesto News

The Conservative Party and the Liberal Democrats published their manifestos this week ahead of the general election. Below we pick out some of their employment-related pledges.

Conservative Party manifesto:

Cut employee National Insurance to 6% by April 2027 and, by the end of the next Parliament, abolish National Insurance for self-employed people;
Continue to implement minimum service levels legislation to limit the impact of industrial action on public services;
Maintain the National Living Wage (NLW) in each year of the next Parliament at two-thirds of median earnings, which on current forecasts would mean the rate of NLW would rise to around £13 per hour; and
An overhaul of the fit note process, including moving the responsibility for issuing fit notes from GPs towards specialist work and health professionals.

Liberal Democrats manifesto:

Establish a new ‘dependent contractor’ employment status in between employment and self-employment, and review the tax and National Insurance status of employees, dependent contractors and freelancers;
Set a 20% higher rate of minimum wage for people on zero-hours contracts at times of normal demand, in order to compensate the individuals for the uncertainty of fluctuating working hours;
Introduce a right for zero-hours and agency workers to request a fixed-hours contract after 12 months, with such a request not to be unreasonably refused;
Align the rate of Statutory Sick Pay (SSP) with the National Minimum Wage, and make SSP available from the first day of absence, rather than the fourth;
Double the rate of statutory maternity and shared parental pay to £350 per week;
Extend parental pay and leave entitlements to the self-employed and make those rights ‘day one’ rights; and
Make caring a protected characteristic under the Equality Act 2010 and require employers to make reasonable adjustments to enable employees with caring responsibility to provide that care.

In this blog post, Kate Redshaw and James Leeman consider the Liberal Democrats and Conservative Party employment law proposals, and what they could mean for employers, in more detail.

We will continue to keep you informed on key pre-election employment news and analysis, including on any new points raised in today’s Labour Party manifesto (which, at the time of writing, has only just been published). In the meantime, why not check out our recent article which explores Labour’s ‘Plan to Make Work Pay’. The article can be found here, and is also linked in our thought-leadership section below.

Criminal disclosures and NDAs

Shortly before the dissolution of Parliament ahead of the general election, new legislation was passed which will make non-disclosure agreements (including confidentiality clauses) unenforceable where they prevent victims from reporting crime or making several other types of disclosure related to a crime.

Clauses will be void where they prevent a victim, or a person who reasonably believes that they are a victim, from disclosing information to certain categories of people. This will include disclosures to:

a person who has law enforcement functions to enable them to carry out those functions (for example, a disclosure to the police to enable them to investigate the criminal conduct);
a qualified lawyer providing legal advice in relation to the criminal conduct; and
victim support services or the victim’s child, parent or partner, for the purposes of obtaining support in relation to the criminal conduct.

Employers will need to ensure that any confidentiality provisions, for example those in contracts of employment and settlement agreements, do not fall foul of these new rules – many contracts will already contain carve-outs that permit employees to make some of the types of disclosure detailed in the new legislation but, before it comes into force, it will be important for employers to carry out reviews to check that all of the permitted disclosures are allowed under their confidentiality clauses. No commencement date for the new rules has yet been announced so employers will need to keep a close eye on developments in this area.

EU Settlement Scheme

On 21 May, the Home Office announced further amendments it intends to make to the EU Settlement Scheme. In what would be a key change, pre-settled status holders would automatically have their status extended by 5 years where they have not obtained full ‘settled’ status prior to expiry of their pre-settled status. This follows changes introduced last year, which resulted in pre-settled status holders having their status automatically extended by 2 years.

The Home Office also stated that the pre-settled status expiry date would be removed from digital profiles generated by the online right to work check system, and that employers would no longer be required to carry out follow-up right to work checks where a relevant individual remains in their employment. It is not yet clear when each of the above changes will come into effect and how they might be impacted by the general election.

Third party benefits

In a recent judgment, the EAT held that an employer could not rely on its contractual terms with a third party in order to withdraw certain benefits from its former employees.

After they were made redundant, a group of claimants argued that their employer’s failure to provide life-long travel discounts (operated by a third party association) was a breach of their employment contracts. As part of its defence, the employer contended that the claimants’ entitlement to such benefits had been withdrawn. It relied on a right of withdrawal in the agreement between the employer and the association, as well as a notification issued by the association to the employer withdrawing the post-redundancy benefits from those employed after a certain date.

At first instance, the tribunal found that the right of withdrawal had been incorporated into the claimants’ contracts and that their contracts had been varied by the association’s notification. The EAT overturned this on appeal. It held that the right of withdrawal in the agreement with the association had not been incorporated into the employees’ contracts – it was not enough that the claimants were aware that the benefits were operated by the association. The employer could therefore not rely on that right of withdrawal to remove the travel benefits. The case is a useful reminder of the importance of ensuring that appropriate wording on third party benefits (such as provisions noting where a benefit is contingent on a third party continuing to provide it) is included in express terms in employment contracts

(Adekoya v Heathrow Express Operating Co Ltd)

Thought-leadership, themes and trends

Labour’s employment law proposals

The Labour Party recently published it’s ‘Plan to Make Work Pay’, which sets out its proposals for employment law reform. Don’t forget to check out our article, in which we take a closer look at the reforms, and what they could mean for employers.

Event

Effective grievance management

3 July 2024 (London) / 3 October 2024 (Bristol)

If you are spending increasing amounts of time on grievances or want to learn more about effective grievance management, why not come along to our in-person panel event to pick up some top tips.

After a quick overview of the legal framework and key considerations to be aware of when dealing with a grievance, our panel will discuss how to approach some of the most common issues which cross our desk when advising on grievances. Check out the registration page for more details, including the common issues that our panel will cover.

Update posted: 30 May 2024

Legal updates

Labour’s employment law proposals

Following the announcement of the general election last week, the Labour Party published it’s ‘Plan to Make Work Pay’, which sets out its proposals for employment law reform. The plan builds on and supersedes its Green Paper, ‘A New Deal for Working People’.

The proposals are wide-ranging and could have a significant impact on the world of work, if Labour were to win the election and bring these changes into effect. Headline reforms include making basic employment rights (like unfair dismissal rights) available from day one of employment, updating trade union legislation and moving towards a single status of worker (rather than the current system which differentiates between workers and employees).

In this article, we take a closer look at the reforms and what they could mean for employers. Watch this space for further analysis on this, and other employment law proposals announced in the lead-up to the general election.

Codes of Practice update

Prior to the dissolution of parliament ahead of the general election, there was a ‘wash-up’ period in which several pieces of pending legislation were reviewed. Two important codes of practice progressed during this period:

Legislation bringing a new code of practice on dismissal and re-engagement (often referred to as ‘fire and rehire’) into force on 18 July 2024 was passed. Read more about the code here. Where an employer has unreasonably failed to comply with the code, any awards for relevant employment tribunal claims can also be increased by up to 25%. Legislation which would have extended these uplift powers to apply to a protective award of up to 90 days’ pay made for an employer’s failure to comply with its collective consultation obligations does not appear to have been passed during the wash-up period, so it remains to be seen whether that change will be made.

The enacting legislation states that the code does not apply where the prospect of dismissal and re-engagement has been raised by the employer with the employee and/or their representatives before the code comes into effect on 18 July 2024.

A code of practice on the fair and transparent distribution of tips was approved by the House of Lords. Further legislation is required in order to confirm the commencement date of the code and the measures under the Employment (Allocation of Tips) Act 2023 – both were anticipated to come into force on 1 October 2024 but watch this space for more news on these timings. Read more about the code and the measures included in the Act here.

Other legislation progressed?

During the wash-up period, the Paternity Leave (Bereavement) Act 2024 was passed – this Act will enable regulations to be passed which set out the leave that can be taken by a father or partner in circumstances in which the child’s mother or adopter dies, and to remove the requirement for such fathers and partners to have 26 weeks’ service. Further details on this entitlement to leave, including the length of that leave, are expected to be set out in regulations in due course.

We will have to wait until after the general election to see how other pending legislation, announced reforms and consultations (see further below) progress. One of the main outstanding areas for reform in the employment space is the new right to request a predictable working pattern – it was expected to come into force this autumn, but we have been awaiting further details on the right, including the length of service a worker would need to have in order to be eligible to make a request. We will keep you posted if there are any further developments in relation to this right.

Consultation on TUPE and Works Council reforms

Earlier this month, the government launched a consultation into proposed changes to the TUPE Regulations. These proposed changes are:

to reaffirm that only employees (and not workers) are protected by the TUPE Regulations; and
to remove the obligation to split employees’ contracts between multiple employers where a business or services are transferred to more than one transferee.

Each of these proposals aims to tackle uncertainties that have arisen from recent caselaw, around the scope of TUPE and the practical implications where there are multiple incoming transferees. The consultation closes on 11 July 2024.

The consultation also sets out a proposal to abolish the remaining framework that is in place for European Works Councils (EWCs) in the UK. After Brexit, steps were taken to remove the obligation for relevant multi-national businesses to set up new EWCs in the UK, but the framework remained in place for existing EWCs to operate. It is this framework that the consultation proposes to abolish to allow remaining EWCs in the UK to be disbanded.

Read the consultation here >

Challenge to minimum service levels strike restrictions

The Public and Commercial Services Union (PCS) has reportedly been granted permission to pursue judicial review proceedings challenging the legislation that introduced minimum service levels affecting border security. Although its challenge is specific to border security, equivalent legislation applies to other specified public services, including passenger rail and fire & rescue services.

One of PCS’ arguments is that the minimum service level requirements fail to give lawful and proportionate protection to the right to strike, which forms part of the right to freedom of assembly and association under Article 11 of the European Convention on Human Rights. A hearing to consider the case is expected later this year.

EHRC priority areas

In its business plan for 2024-2025, the Equality and Human Rights Commission (EHRC) identified six priority areas. These include:

tackling sexual harassment in the workplace, including via a campaign to help employers prepare for the new duty to prevent sexual harassment of their employees in the course of their employment which comes into force on 26 October 2024. Read more about how to prepare for the new duty here.
regulating AI, including looking at tools that could tackle algorithmic bias and discrimination.

Read the plan here >

Thought-leadership, themes and trends

Sexism in the City – NDAs here to stay

Earlier this month, the Treasury issued its response to the Treasury Committee’s ‘Sexism in the City’ inquiry report. In this blog post, James Green considers the Treasury’s response to the recommendation for a ban on the use of non-disclosure agreements (NDAs) in sexual harassment cases.

Event

Effective grievance management

3 July 2024 (London) / 3 October 2024 (Bristol)

Update posted: 16 May 2024

Event

Effective grievance management

3 July 2024 (London) / 3 October 2024 (Bristol)

Legal updates

EHRC guidance on duty to prevent sexual harassment

The EHRC has indicated that it will consult this summer on planned changes to its technical guidance on sexual harassment and harassment at work. The changes will account for the new duty on employers to take reasonable steps to prevent sexual harassment in the workplace, which will come into effect on 26 October 2024.

Once the new duty is in force, the EHRC will have powers to enforce it and tribunals will be able to uplift awards of compensation in relevant cases by up to 25% where an employer has failed to take the necessary reasonable steps to prevent the sexual harassment. The updated technical guidance, the final version of which is expected to be published in September 2024, will therefore be a must-read for all employers. In the meantime, click below to read our article exploring how employers can prepare for the new duty.

On a separate but related note, the Labour party also recently announced its intention (if elected) to introduce legislation to protect interns and volunteers from sexual harassment.

Individual liability for discrimination

Where acts committed by individual respondents in the course of their employment are found to be discriminatory and meet the test for individual liability, those individuals are liable regardless of whether the employer is also found to be vicariously liable for their discriminatory conduct.

The claimant, a newly qualified teacher, brought a disability discrimination claim against the school, her mentor teacher and the headteacher. The tribunal upheld claims against the school arising from an email sent by the mentor teacher and a comment in a report completed by the headteacher. However, it dismissed the equivalent claims against the mentor teacher and headteacher because it found that their acts were misguided attempts to address a complex situation.

On appeal, the EAT held that the tribunal did not have discretion to decide not to hold the individual respondents personally liable – where it has found (as it had in this case) that a discriminatory act took place in the course of the individual’s employment and the act amounts to a breach of the Equality Act 2010 by the employer, the tribunal is bound to find that the individual is liable. There is a statutory defence to this (broadly, where the individual reasonably relies on a statement by the employer that the act is not in breach of discrimination protections), but it did not apply in this case. The question of whether the employer is also vicariously liable for those acts (as it was in this case) is not relevant – the employer’s liability does not take away the individuals’ liability.

(Baldwin v Cleves School and others)

WorkWell pilots

Last week, the government announced new ‘WorkWell’ pilots that are set to be rolled out in 15 areas in England from October this year. These pilots, which will be available to those with health conditions or disabilities, aim to provide better connections with existing local support services, such as physio and counselling. Support will also be available to identify workplace adjustments that would help the individual stay in, or return to, work.

With sickness absence rates reportedly at their highest level for a decade, the WorkWell scheme is part of a wider package of welfare reforms designed to help those with health conditions or disabilities look for, or remain in, work. WorkWell will be a voluntary scheme and individuals will be able to self-refer, or be referred by their employer, GP or other local services.

Volunteer was a ‘worker’ when entitled to remuneration

The EAT has considered the question of whether a volunteer was a ‘worker’ when carrying out activities which attracted a right to remuneration.

The claimant volunteered for the respondent’s coastguard rescue service (CRS). The volunteer handbook stated that the relationship was a “voluntary two-way commitment where no contract of employment exists”. The documentation also included provisions stating that volunteers were expected to comply with a code of conduct and maintain competence (including through training), and that failure to follow the code may result in termination of membership of the CRS. Importantly, volunteers were also entitled to remuneration for some activities.

After his membership of the CRS was terminated following a disciplinary hearing, the claimant issued a claim arguing that the respondent had breached his right to be accompanied at that hearing. To be eligible for this claim, he needed to show he was a ‘worker’. At first instance, the tribunal held that the claimant was not a worker, in part because there was no automatic right to remuneration for any activities.

On appeal, the EAT stated that it was not relevant that volunteers needed to submit a claim for remuneration and that many volunteers had not done so – the right to remuneration was the important factor. Taking this and the remainder of the documentation into account, the EAT determined that the claimant was a worker when he carried out activities for which he was entitled to remuneration. However, the EAT did not reach a finding in relation to time spent carrying out activities for which there was no entitlement to remuneration – whether the claimant was a worker at those times remains an open question for the tribunal.

(Groom v Maritime and Coastguard Agency)

Thought-leadership, themes and trends

How can HR successfully roll out AI?

With most organisations now actively seeking out ways in which they can use AI to improve productivity and save costs, there is a real focus on having the right AI strategy in place. In this article for People Management, Kate Redshaw explores HR’s role in shaping that strategy and helping organisations harness the full potential of AI.

Update posted: 2 May 2024

Legal updates

‘Fire and rehire’ code of practice

The implementation date for the new statutory code of practice on dismissal and re-engagement (often referred to as ‘fire and rehire’) has now been announced – it is set to take effect on 18 July 2024.

The code sets out the steps that an employer should follow when it is contemplating changes to terms and conditions and envisages it might dismiss employees if they do not agree to the proposed changes. Where an employer has unreasonably failed to comply with the code, any awards for relevant employment tribunal claims can also be increased by up to 25%. Draft legislation has been published that would, if passed, extend the tribunal’s power to apply such an uplift to a protective award made for an employer’s failure to comply with its collective consultation obligations. Protective awards can be up to 90 days’ pay per employee, and the uplift would be applied on top of this, so the consequences of unreasonably failing to comply with the code could be significant.

Whistleblowing detriment

When assessing in a whistleblowing detriment case whether a decision was materially influenced by a protected disclosure, the motivation of the decision-maker and another person should not be merged.

The claimant, a doctor, made several complaints about a colleague. These included a complaint that the colleague had not carried out a proper handover of her duties and that this had had a negative impact on patient care. Following a later confrontation between the claimant and her colleague, the claimant was suspended, subjected to a disciplinary investigation and issued with a written warning. The claimant argued that these detriments were on the ground that she had raised protected disclosures, including the complaint about her colleague’s handover. The claimant argued that the disclosure contributed to a dysfunctional relationship between her, her colleague and a manager, and that this relationship gave rise to the series of detriments. The colleague and the manager were not the decision-makers who took the suspension, investigation and disciplinary decisions.

The tribunal found that the decision-makers were not motivated to any extent by the protected disclosure. Upholding this, the EAT found that, in detriment cases, the tribunal should not merge the motives of the decision-maker and another person – it must separate their motives. This means that it is only the decision-maker’s knowledge and motive that is relevant. This differs from whistleblowing dismissal cases, in which it would be relevant if a decision-maker had been influenced by a more senior employee who was motivated by a protected disclosure and hid that behind an invented reason.

(William v Lewisham and Greenwich NHS Trust)

Fit note reform

As part of its previously announced review into possible reforms of the fit note process, the government has issued an open call for evidence. In its launch document, the government has highlighted themes that it is particularly interested in views and evidence on, including the experiences of employers, individuals, carers and clinicians. Employers are invited to share their views on a range of topics, including how effective the current fit note process is at meeting employer needs and what additional information could be contained on fit notes that would support employees to successfully return to work following sickness absence. The call for evidence closes on 8 July 2024.

Holiday pay

The EAT has considered the meaning of ‘a series of deductions’ for the purposes of a holiday pay unlawful deductions claim, in light of the principles set out in last year’s Supreme Court decision in Chief Constable of the Police Service of Northern Ireland v Agnew.

In one of the first appellate cases to apply the principles set out in Agnew, the EAT held that:

The tribunal had erred in applying the so called ‘three-month break rule’, which had, prior to Agnew, established that a gap of three or more months between deductions would break a series of deductions.
Deductions that all arose because of a failure to factor in different allowances that should have been included in holiday pay were ‘sufficiently similar’ for the purposes of determining whether they formed part of a series of deductions.
It was not possible to retrospectively designate which holiday days would count towards the different ‘pots’ of annual leave that UK employees are entitled to – four week’s ‘Euro Leave’, additional UK leave and contractual leave. Instead, all holiday days were to be treated equally as part of the composite of the different types of leave. The question of how this works in practice remains unanswered.

The case now returns to the tribunal to determine a number of issues in light of these findings, including whether the deductions were part of a series – this will involve consideration of the timing between the deductions, albeit it is clear that a three month-break alone will not break a series.

(British Airways PLC v Mello and others)

Distributing tips fairly

Last week, the government issued a response to its consultation into the draft code of practice on the fair and transparent distribution of tips. As well as publishing an updated draft code alongside the response, the government also stated that the code and the measures contained in the Employment (Allocation of Tips) Act 2023 will come into force on 1 October 2024. Read more about the code and the measures included in the Act here.

Read the response and the updated code here >

Employment law reforms

With a host of recent and upcoming reforms in 2024, check out our employment law reforms timeline to keep on top of the changes and help you plan ahead.

Employment law reforms timeline >

Thought-leadership, themes and trends

Positive management of sickness absence

Managing sickness absence is a notoriously tricky area for employers to navigate but it’s an important one - barely a day goes by at the moment without a headline about the high levels of sickness absence in the UK. In this blog post, Menna Chmielewski shares five tips on how to positively and effectively manage sickness absence.

AI in recruitment

With the demand for AI-generated efficiencies growing day-by-day, the Department for Science, Innovation & Technology recently published new guidance on ‘Responsible AI in Recruitment’. In this blog post, Eilidh Wood explores that guidance and how it can help organisations navigate the ethical and other risks of using AI in talent management processes.

Update posted: 18 April 2024

Legal updates

No protection against detriment for striking workers

In an important decision published yesterday, the Supreme Court has held that the statutory provision that prohibits an employer from subjecting a worker to a detriment for taking part in the activities of a trade union does not include protection where the worker is taking part in lawful strike action during their working hours. The Court found that it is not possible for it to read the statutory wording in a way to incorporate such protection as to do so would mean the Court would be legislating (which would be outside of its powers).

As it stands, a worker therefore does not have statutory protection against sanctions short of dismissal where they take part in lawful strike action during working hours. However, the Supreme Court went on to find that the failure to protect workers in this way is incompatible with Article 11 of the European Convention on Human Rights, which protects freedom of assembly and association and incorporates the right to strike. The Court concluded that the right of an employer to impose any sanction short of dismissal for taking part in lawful strike action nullifies the right to strike. It also noted that the current statutory provision ‘encourages and legitimises unfair and unreasonable conduct by employers’.

As a result, the Court issued a declaration of incompatibility stating that the statutory provision is incompatible with Article 11. It is now for parliament to decide what steps it wishes to take in light of the declaration of incompatibility, including whether to amend the legislation and, if so, how. In the meantime, employers should remain cautious of taking action against striking workers, particularly as they benefit from several other protections (including certain protections against dismissal).

(Secretary of State for Business and Trade v Mercer)

New government, Acas and EHRC guidance

Several new and updated pieces of guidance have been issued by the government, Acas and the EHRC in the last fortnight. Below is our round-up of the guidance, together with accompanying links.

The government and Acas have issued new guidance to coincide with the new statutory right to carer’s leave coming into effect on 6 April 2024. Although the guidance is not binding on employers, it aims to explain the statutory right and provide some practical pointers for employers. This includes a helpful table in the Acas guidance detailing the minimum notice that an employee is required to give before their leave is due to start.

Government carer's leave guidance >

Acas carer's leave guidance >

Acas has also issued updated advice on the statutory right to make a flexible working request. The updated advice, which is in addition to the new Code of Practice on the topic, takes into account several important changes to the right which took effect on 6 April 2024. Read more about those changes here.

Acas flexible working guidance >

The Department for Work and Pensions has issued new guidance aimed at helping managers to better support disabled people in the workplace. The Disability Confident guide, which has been prepared in conjunction with the CIPD, provides tips for managers on recruiting, managing and fostering the progression of those with a disability or health condition. It includes sections on reasonable adjustments (both during the recruitment process and during employment), managing sickness absence and career progression.

Disability Confident guide >

The Equality and Human Rights Commission (EHRC) has updated several of its pregnancy and family-related leave toolkits to reflect the 6 April 2024 changes to paternity leave and the right to request flexible working, as well as the extension of redundancy protections which also took effect on that date. The toolkits aim to help employers understand their legal obligations, including the now extended obligation to offer suitable alternative employment (where available) to pregnant employees and certain eligible family-leave returners in a redundancy situation. Read more about this protection here.

Access the toolkits here >

'Fire and rehire' code of practice

During a parliamentary debate earlier this week, the government indicated that it intends to bring the new statutory code of practice on dismissal and re-engagement (often referred to as “fire and rehire”) into effect before parliament’s summer recess in July this year.

The code sets out detailed steps that an employer should follow when it is contemplating changes to terms and conditions and envisages it might dismiss employees if they do not agree to the proposed changes. Employers contemplating changes to terms and conditions and potential dismissal and re-engagement will need to pay close attention to the steps required under the code. This is particularly the case as tribunals will be able to apply an uplift of up to 25% of compensation in relevant cases where an employer has unreasonably failed to comply with the code.

Read the draft code here >

Whistleblowing – knowledge of the disclosure

The EAT has held in a whistleblowing case that the decision-maker needs to be aware of the substance of the alleged protected disclosure, and not just that a disclosure has been made.

In an email to two HR consultants engaged by the respondent, the claimant alleged that the conduct of the respondent’s CEO amounted to bullying and harassment. After the claimant’s employment was terminated by the CEO a short while later, purportedly by reason of redundancy, he claimed automatic unfair dismissal on the grounds that he had made a protected disclosure. One of the HR consultants had informed the CEO of the claimant’s concerns about her use of WhatsApp and about the terms of a colleague’s departure, but she did not make direct reference to the claimant’s email and the CEO was not aware of the email until after he was dismissed.

The EAT held that, in order for the decision-maker to be fixed with knowledge of the disclosure and the employer therefore potentially be liable for automatic unfair dismissal, the decision-maker needs to know at least something of the substance of the disclosure that has been made – they ought to have some knowledge of what the employee is complaining or expressing concerns about. On the facts of this case, it was open to the tribunal to find that the CEO did not have sufficient information about the disclosure. It is worth noting that there is an exception in cases where the decision-maker has deliberately been kept in the dark about a disclosure, in which case a different test applies.

(Nicol v World Travel and Tourism Council and others)

Employment law reforms

With a host of recent and upcoming reforms in 2024, check out our employment law reforms timeline to keep on top of the changes and help you plan ahead.

Employment law reforms timeline >

Thought-leadership, themes and trends

Immigration rule changes – employer actions

The updated immigration rules are starting to bed in after several important changes took effect on 4 April 2024. Don’t forget to check out our recent article, which summarises the changes and sets out the key actions for employers to take in light of the reforms. We have also updated our employer’s guide to business immigration, linked below, to take account of the new rules.

Read our article >

Read our guide >

Privacy vs productivity: monitoring in the workplace

Pressures on productivity coupled with higher levels of homeworking mean that employers are increasingly looking to monitor employees’ activities. However, employers need to take care when implementing monitoring as a failure to do so could give rise to both scrutiny from the Information Commissioner’s Office and a risk of grievances and claims. In our recent article, we consider some key points for HR to address when considering employee monitoring.

Update posted: 4 April 2024

Legal updates

Flexible working changes take effect

Regulations were passed last week which confirm that, as anticipated, several changes to the right to request flexible working will take effect for requests made on or after 6 April 2024. From that date:

the employer must respond to the request within two months (down from three months);
the employer must not reject the request unless it has first consulted with the employee;
the employee will no longer need to set out the effects of their request on their employer and how those effects might be dealt with; and
the employee will be able to make two requests in any twelve-month period (currently they can only make one).

The ACAS Code of Practice on requests for flexible working has been updated to incorporate these changes and to reflect the fact that the right to make a flexible working request will be a ‘day one right’ from 6 April, meaning that employees will no longer need to have 26 weeks’ service before being eligible to make a request.

Employers need to amend their flexible working policies to reflect these changes and may also want to consider training or other forms of awareness-raising for line managers. If we can help you prepare for these changes, please do get in touch with your usual Burges Salmon contact.

New immigration rules in force

Significant changes to the UK’s immigration rules take effect from today. In our latest article, we summarise the changes and set out key actions for employers to take in light of these reforms.

To understand more about how the changes might affect your business, please contact Katie Hayes or Hannah Malone.

Improving D&I in the workplace

Last week, an independent ‘Inclusion at Work’ panel appointed by the government issued a report on improving diversity and inclusion in the workplace. The panel’s recommendations are that:

the government should endorse a new D&I framework, setting out criteria for organisations to apply when designing, implementing and evaluating their D&I initiatives;
the government should appoint a research partner to develop a digital tool to help leadership in organisations assess the impact and value for money of a range of D&I interventions; and
the Equality and Human Rights Commission (EHRC) should provide guidance for employers in relation to D&I practice, with particular focus on the implication of recent rulings for HR policies and staff networks.

The panel recommended that the EHRC clarify organisations’ legal duties and responsibilities relating to philosophical and religious belief, and that it commits to regularly updating guidance to ensure that employers understand how to apply the positive action provisions of the Equality Act 2010.

Read the report here >

Reasonable adjustments and trial periods

The EAT has found that an employer failed to make a reasonable adjustment when it failed to offer a disabled employee a trial period in an alternative role.

The claimant was employed as a pest controller when he was diagnosed with multiple sclerosis. When the claimant was unable to perform that role due to its physical demands, he interviewed for an administrator role. The employer rejected the claimant’s application due to his performance in written tests and concerns that he had irrelevant skills and experience. It did not consider offering the claimant the role on a trial basis or providing him with re-training, and a short while later he was dismissed from his substantive role due to his ill health.

The tribunal held that it would have been a reasonable adjustment to transfer the claimant to the administrator role for a trial period of 4 weeks. The EAT upheld this decision, noting that a proposed step does not have to be guaranteed to work in order for it to amount to a reasonable adjustment.

Whether a trial period in an alternative role is reasonable will be fact-specific in each case, taking into account the suitability of the role and the likelihood of the employee passing the trial period. On the facts of this case, the tribunal found that the employer’s concerns regarding the written tests could have been tested by offering the claimant a trial period and there was a 50% chance that the claimant would be confirmed in the new role at the end of that period.

(Rentokil Initial UK Ltd v Miller)

AI in recruitment

The Department for Science, Innovation & Technology has issued a new guidance document on ‘Responsible AI in Recruitment’. It provides guidance for employers to help mitigate the ethical risks associated with using AI as part of recruitment and hiring processes and comply with relevant legal requirements, including the government’s AI regulatory principles.

The guidance focusses on ‘assurance mechanisms’ for organisations to use when procuring AI systems from suppliers and when deploying AI in the organisation. These mechanisms include completion of impact assessments, risk assessments and bias audits, creation of an AI governance framework within the organisation and different types of testing of the AI systems. The guidance breaks down these assurance mechanisms by reference to the different stages of procuring and deploying AI, and it helpfully sets out suggested questions for the organisation to ask itself at each stage.

Read the guidance here >

Injury to feelings awards increased

The injury to feelings compensation awards that tribunals can make in discrimination cases are set to increase from 6 April. For claims issued on or after 6 April 2024, the new bands (known as “Vento bands”) are:

for less serious cases, a lower band of £1,200 to £11,700;
for cases that do not merit an award in the upper band, a middle band of £11,700 to £35,200; and
for the most serious cases, an upper band of £35,200 to £58,700.

In the most exceptional cases, an award that exceeds £58,700 could be made.

Employment law reforms

With a plethora of reforms on the way in 2024, check out our employment law reforms timeline to keep on top of the changes and help you plan ahead.

Employment law reforms timeline >

Thought-leadership, themes and trends

Privacy vs productivity: monitoring in the workplace

Pressures on productivity coupled with higher levels of homeworking mean that employers are increasingly looking to monitor employees’ activities. However, employers need to take care when implementing monitoring as a failure to do so could give rise to both scrutiny from the Information Commissioner’s Office and a risk of grievances and claims. In this article, we consider some key points for HR to address when considering employee monitoring.

What does HR need to know about AI?

As HR professionals, it’s crucial to be at the forefront of AI integration within your organisation. In the latest article in our ‘What do you need to know about AI’ series, Kate Redshaw and Katie Russell explore what HR need to know about AI to manage risk and unlock value.

Flexible working after fifty

With legal changes to the right to request flexible working just around the corner, Hannah Malone has written a blog post exploring how flexible working can benefit different demographics and can help employers widen the talent pool. Retention of the over-50s, which was recently promoted in the ‘50+ Choices: Flexible After Fifty’ report, is a key example of this.

Event

Financial Services sector: Navigating the FCA’s new rules on non-financial misconduct

18 April 2024 / 12pm - 1pm

In this webinar, we will explore how firms regulated by the FCA should deal with allegations of non-financial misconduct, clarifying regulatory expectations, assessing key risk areas and identifying practical tips for managing successful investigations.

Update posted: 21 March 2024

Legal updates

Employment law reforms timeline

With a plethora of reforms on the way in 2024, check out our employment law reforms timeline to keep on top of the changes and help you plan ahead.

View the timeline here >

Changes to Immigration Rules

The Statement of Changes to the Immigration Rules published on 14 March 2024 makes significant changes to the Skilled Worker route, as well as changes to other immigration routes. In particular, substantially increased minimum salary thresholds will apply to new Skilled Worker visa applications where the Certificate of Sponsorship (‘CoS’) has been assigned on or after 4 April 2024 (save where transitional measures apply):

the general salary threshold will be increasing to £38,700 per year; and
the ‘going rate’ that is also required for the role in question is being increased in line with the median salary for that occupation.

Certain discounts to the salary thresholds will continue to be available for eligible roles/individuals, and those who make an application with a CoS that was assigned to them before 4 April 2024 will continue to benefit from the immigration rules in place before 4 April 2024. In addition, individuals who were granted permission as a Skilled Worker under the rules in place before 4 April 2024 and have continuous permission as a Skilled Worker since that point will benefit from certain transitional arrangements up to and including 3 April 2030.

Importantly, the UKVI Sponsor Management System will be unavailable from 7pm on 2 April 2024 until 9am on 4 April 2024. Therefore, sponsors looking to take advantage of the existing, lower thresholds which apply where a CoS is assigned before 4 April will need to assign the CoS before 7pm on 2 April.

The Statement also confirms that a new Immigration Salary List (see here), will allow specific shortage occupations to benefit from a discounted general salary threshold (but the current 20% discount to the ‘going rate’ for these roles is being removed).

The majority of the changes will take effect from 4 April 2024. Employers will need to consider how these changes might affect employees currently on Skilled Worker visas or with limited immigration permission and the extent to which these changes might impact their recruitment strategy moving forwards. To understand more about how these changes might affect your business, please contact Katie Hayes or Hannah Malone.

Redundancy protection for pregnant employees and family-leave returners

Regulations have been passed which extend certain redundancy protections to a wider category of employee from 6 April 2024. The requirement to offer suitable alternative vacancies (where available) to certain employees in a redundancy situation has been extended to cover:

pregnant employees who inform their employer of their pregnancy on or after 6 April 2024;
employees who have returned from statutory maternity or adoption leave, where that leave ends on or after 6 April 2024; and
employees who have returned from at least 6 consecutive weeks of statutory shared parental leave (and are not already covered by the maternity and adoption protection), where that leave starts on or after 6 April 2024.

Pregnant employees will be protected from the point at which they inform their employer of their pregnancy, whilst eligible parents returning from maternity, adoption or shared parental leave will be covered for 18 months after the expected week of childbirth, the date of placement for adoption or the date of the child’s birth (depending on their particular circumstances).

As well as factoring in this extended protection when planning any restructuring exercises, employers will also need to have adequate record-keeping arrangements in place to enable them to identify all employees entitled to be offered suitable alternative vacancies should a redundancy situation arise.

Paternity changes

Regulations were passed last week which will provide more choice and flexibility around how and when statutory paternity leave is taken. For children whose expected week of birth begins after 6 April 2024 or expected placement for adoption is on or after 6 April 2024, eligible fathers and partners will be able to:

take the leave at any time in the first year after birth or placement for adoption, rather than in the first eight weeks; and
take the leave in two separate one-week blocks, rather than having to decide between taking one week only or taking two weeks of leave in one block.

The notification requirements have also changed so that less notice is required of the dates of leave.

Employers need to prepare for these changes, including amending their paternity leave policies and checking that their payroll and time & attendance systems are ready for the changes. If we can help you prepare for these changes, please do get in touch with your usual Burges Salmon contact.

Parental leave and unfair dismissal

The EAT has held that there is no strict requirement for an employee to have given formal notice of their intention to take parental leave to benefit from protection against dismissal on the ground that they sought to take parental leave.

The claimant had informal discussions with his line manager and HR about taking parental leave and later informed the respondent’s managing director that he would be seeking parental leave. The claimant did not make a formal written application for parental leave. Around a month later, he was dismissed by reason of redundancy. The claimant brought a claim alleging that he had been automatically unfairly dismissed as he contended that the real reason for his dismissal was that he sought to take parental leave. The respondent argued that he had not sought to take the leave as he had not given notice to take it and so his claim should be struck out.

The tribunal refused to strike out the claimant’s claim, and the EAT upheld this decision. In order to demonstrate that he ‘sought to take’ parental leave, it was not an absolute requirement that the claimant must have given the relevant notice – other factors were relevant to the question of whether he ‘sought to take’ the leave. The claim will now return to the tribunal.

(Hilton Food Solutions Ltd v Wright)

Compensation limits increased

The usual annual increases to compensation and statutory payments will soon take effect. From 6 April 2024, two key new limits are:

the limit on a week's pay for the purpose of calculating statutory redundancy payments and basic awards - £700 (up from £643); and
the limit on a compensatory award for unfair dismissal - £115,115 (up from £105,707).

The new rates will apply to dismissals that take place on or after 6 April 2024.

Thought-leadership, themes and trends

Sexism in the City inquiry report

The Treasury Committee recently published a report following its ‘Sexism in the City’ inquiry. In this blog post, James Green explores the recommendations from the report and considers what they could mean for firms in the financial services sector.

Event

Financial Services sector: Navigating the FCA’s new rules on non-financial misconduct

18 April 2024 / 12pm - 1pm

Update posted: 7 March 2024

Legal updates

Employment law reforms timeline

2024 is set to be a bumper year for employers with a plethora of reforms on the way. With changes coming thick and fast, it is difficult to keep on top of all the developments and what they might mean for your organisation. To help you plan ahead, we have put together an employment law reforms timeline with links to further detail.

View the timeline here >

Belief discrimination

Terminating the contract of a Christian actress after a Facebook post expressing her beliefs relating to homosexuality came to light was not discriminatory, according to the EAT.

The claimant was set to play a lesbian role in a production of ‘The Colour Purple’. After the claimant’s casting was announced, a social media storm developed regarding a previous Facebook post made by the claimant in which she stated her religious beliefs in relation to homosexuality. In response to the publicity storm, the claimant’s contracts with the theatre and her agency were terminated. She issued a claim alleging, amongst other things, direct discrimination on the ground of religion or belief.

The tribunal found that the theatre terminated the contract because of the effect of the adverse publicity on the cohesion of the cast, audience reception, the producers’ reputation and the standing and commercial successful of the production. The agency’s reason for terminating the contract was its fear that the publicity storm threatened the agency’s survival. The tribunal concluded that neither the claimant’s belief nor manifestation of her belief were the operative reason for the decisions taken and that the real reasons were separable from any such belief and/or any manifestation of it. The EAT upheld these conclusions, noting that the tribunal had carried out a detailed evaluation of the evidence.

Belief discrimination cases continue to dominate the appeal courts, and an important Court of Appeal hearing is scheduled for October this year in the Higgs v Farmor’s School litigation. It is a fast-moving and complex area of law, so make sure you take appropriate advice if you are faced with a situation involving beliefs in the workplace.

(Omooba v Michael Garrett Associates Ltd and another)

Menopause guidance

The Equality and Human Rights Commission (EHRC) has issued new guidance for employers on menopause in the workplace. The guidance, which can be found here, aims to help employers understand their legal obligations when they have workers who are experiencing menopausal symptoms.

The guidance confirms, in line with case law in this area, that menopausal symptoms can be amount to a disability if the usual definition under the Equality Act 2010 - a mental or physical impairment that has a substantial and long-term adverse effect on the worker’s ability to carry out normal day-to-day activities - is met. The guidance is accompanied by explainer videos, covering employers’ legal obligations, examples of workplace adjustments and practical advice on having conversations about the menopause.

In this blog post, Eilidh Wood takes a closer look at the guidance and considers what employers can do to create a menopause-friendly workplace.

Carer’s leave

The Carer’s Leave Regulations 2024 have now been passed, which means that the new right to carer’s leave will come into force as anticipated on 6 April 2024. From that date, any employee who has a dependant with long-term care needs will be entitled to up to one week’s unpaid carer’s leave in any twelve-month period.

Leave can be taken in one continuous block or on separate days but a minimum of a half a day must be taken at a time. There are certain notification requirements that an employee must follow when informing their employer of the dates on which they intend to take their leave and limited circumstances in which an employer can postpone the leave requested. The employer cannot require the employee to supply evidence in relation to a request for carer’s leave.

Employers should now prepare for the new right, including considering the implementation of a carer’s leave policy and checking that payroll and time & attendance systems are ready for the new type of leave. If we can help you prepare for this new right, please do get in touch with your usual Burges Salmon contact.

Immigration salary list

The Migration Advisory Committee (MAC) has published its recommendations for the new ‘Immigration Salary List’, which is set to replace the current ‘Shortage Occupations List’. These lists set out occupations where employers face a shortage of suitable labour and accordingly where certain reduced salary thresholds apply for immigration permission purposes.

The proposed Immigration Salary List includes significantly fewer roles than the existing Shortage Occupations List (21 compared to the current 37), meaning that, if it is adopted by the government, significantly fewer roles would qualify for a reduction to the general salary threshold for sponsorship under the Skilled Worker route. Given that the general salary threshold is due to increase markedly on 4 April 2024 to £38,700 (up from £26,200), the result would be a more restricted pool of roles which are eligible for sponsorship. For the majority of roles on the ISL, a reduced general salary threshold of £30,960 is listed – this reduced rate could be relied on in certain circumstances, depending on the going rate for the role.

Sponsoring employers will need to keep a close eye on developments – we will keep you posted on key updates in future Employment Edits.

Thought-leadership, themes and trends

Business reaction to Labour’s proposals

In this blog post, Kate Redshaw and Shannon Willett consider what the business community has been saying about Labour’s proposals for employment law reform and take a look at more of those proposals.

Spotlight on Platforms

In our latest ‘Spotlight on Platforms’ video, James Green considers two key priorities for the FCA - culture and conduct – and how we have supported platform clients to prepare for some major change in this space.

Watch here >

Responsible business report

Last week, we launched our latest Responsible Business report, highlighting our firm’s initiatives and collaborations to deliver for our clients, people and communities and support our transition to Net Zero by 2026.

Read the report here >

Webinar on-demand

Hot Topics in Employment Law 2024

Don’t forget that our Hot Topics in Employment Law webinar is available on-demand. In the webinar, we bring you up to date on the ‘need to know’ employment law changes, cases and trending themes and help you plan for the year ahead.

Watch now >

Update posted: 22 Februrary 2024

Legal updates

'Fire and rehire' code of practice

Earlier this week, the government issued its response to the consultation into a new statutory code of practice on dismissal and re-engagement (often referred to as “fire and rehire”). Alongside its response, the government issued an updated draft code.

The draft code sets out detailed steps that an employer should follow when it is contemplating changes to terms and conditions and envisages it might dismiss employees if they do not agree to the proposed changes. The code makes it clear that ‘fire and rehire’ should be a last resort and employers should not raise the prospect of dismissal unreasonably early or use a threat of dismissal as a negotiating tactic where dismissal is not, in fact, envisaged. The code also recommends that employers should contact ACAS for advice before raising the prospect of dismissal and re-engagement.

The updated code is now subject to parliamentary approval, and we await further details on when it will come into force. Once in force, Tribunals will be able to apply an uplift of up to 25% of compensation in relevant cases where an employer has unreasonably failed to comply with the code. Employers contemplating changes to terms and conditions and potential dismissal and re-engagement will need to pay close attention to the steps required under the code.

Read the response and the updated code here >

Labour Party’s employment law proposals

The Labour Party’s proposals for employment law reform have hit the headlines again this week, with several business commentators providing their reactions to the proposals. The proposed reforms, which were first published in a 2022 Green Paper titled ‘A New Deal for Working People’, include proposals to create a single status of worker, make more employment rights ‘day one’ rights, ban zero hours contracts, outlaw fire and rehire and introduce sectoral collective bargaining. Some business leaders have raised concerns that the ‘full fat’ version of these proposals (if implemented) could significantly increase costs for businesses. The TUC on the other hand recently described the reforms as ‘transformative policies’ that would be good for the economy.

In this blog post, Kate Redshaw explores the proposals and considers what the reforms could mean for employers.

Discrimination and TUPE

The EAT has held that liability for discrimination claims does not transfer when the alleged perpetrator of that discrimination transfers to another employer under TUPE.

The claimant issued a claim against his employer alleging, amongst other things, that he had been discriminated against and harassed by his colleague, X. Following a subsequent TUPE transfer, X’s employment transferred to a different company, Credential. The claimant’s employment did not transfer to Credential as he had resigned in response to the discrimination, and this was well before the TUPE transfer. The claimant’s employer argued that Credential should be added as a party, as it alleged that liability for the claims transferred to Credential as a result of the transfer of X’s employment under TUPE.

The EAT held that liability under the Equality Act 2010 arose in connection with the employer’s contract with the claimant. It was not the purpose of TUPE for the rights and obligations in connection with a non-transferring employee, such as the claimant, to transfer to the transferee. Liability therefore did not transfer to Credential and the claimant’s employer remained liable for the claims.

(Sean Pong Tyres Ltd v Moore)

Occupational health taskforce

The government has appointed Dame Carol Black to lead a new occupational health taskforce. The taskforce will review occupational health provision and produce a voluntary framework for businesses. The government has stated that the framework, which is expected this summer, will set out minimum levels of occupational health needed to stop sickness-related job losses.

These steps are designed to help employers to support those returning to work after sickness absence, and to improve employer awareness of the benefits of occupational health provision, all with a view to reducing sickness absence levels.

Thought-leadership, themes and trends

AI deployment - stop, look and listen

Remember the Green Cross Code? In this blog post, Kate Redshaw explores how the code’s mantra of 'stop, look and listen' could help HR with their approach to deploying AI.

Competition in UK labour markets

In late January, the Competition and Markets Authority (CMA) published a research report on competition and market power in UK labour markets. In this blog post, Shachi Nathdwarawala explores some of the key findings in the report.

Webinar on-demand

Hot Topics in Employment Law 2024

Watch now >

Update posted: 8 February 2024

Webinar on-demand

Hot Topics in Employment Law 2024

Our Hot Topics in Employment Law webinar is now available on-demand. In the webinar, we bring you up to date on the ‘need to know’ employment law changes, cases and trending themes and help you plan for the year ahead.

Watch now >

Legal updates

Employment tribunal fees

Last week, the government launched a consultation into the proposed introduction of a £55 fee for employment tribunal claims and appeals to the EAT. The proposed tribunal fee is a flat rate so would remain the same regardless of whether the claim covers one complaint or multiple complaints. Those who cannot afford the fee would be supported via a fee remission scheme.

A previous fee regime was in force from 2013 to 2017, before the Supreme Court held that it was unlawful as it effectively prevented access to justice. The new proposed fee rate of £55 is much lower than the rates under the previous fee regime, which included fees of up to £1,200 for an unfair dismissal or discrimination claim.

The consultation closes on 25 March 2024. If implemented, the fees may be payable from as early as November 2024.

Read the consultation here >

Illegal working penalties

The implementation date for increased illegal working penalties has now been confirmed – the new rates will come into force from 13 February 2024. From that date, the maximum civil penalty will be £45,000 per illegal employee for a first breach (up from £15,000), and £60,000 per illegal employee for repeat breaches (up from £20,000). An employer could face a civil penalty if they are found to have employed an illegal employee and have not conducted valid right to work checks.

An updated code of practice on preventing illegal working will also come into force on 13 February 2024.

Read the code here >

Equal pay and pay reporting expansion

Earlier this week, the Labour Party announced its proposal (if elected) to extend full equal pay rights to black, Asian and ethnic minority workers and disabled workers. Currently equal pay claims can only be brought where there is an alleged difference in pay or other contractual terms based on sex, although it is open to workers with other protected characteristics to bring direct or indirect discrimination claims in relation to their pay. Equal pay claims are governed by a different and more complex mechanism, and it remains to be seen whether that mechanism would be adapted if it were to be applied to workers with other protected characteristics.

It has also been reported that Labour would introduce mandatory ethnicity and disability pay gap reporting and would enact the ‘dual discrimination’ provisions of the Equality Act 2010, which have not yet been brought into force. Dual discrimination allows an employee to bring a discrimination complaint based on multiple protected characteristics (e.g. age and sex). Further details on these proposals are awaited.

Minimum service levels challenged

The Public and Commercial Services Union (PCS) has indicated that it intends to launch judicial review proceedings challenging the legislation that introduced minimum service levels affecting border security. Although part of this legislation is specific to border security, PCS’ statement also refers to challenging the Strikes (Minimum Service Levels) Act 2023. That Act grants the Secretary of State the power to set minimum service levels for specified public services in key sectors, including health services, education and transport.

Thought-leadership, themes and trends

Mind your messaging

In this blog post, Annelise Tracy Phillips shares her thoughts on the importance of careful messaging when describing diversity, equity and inclusion aspirations.

AI integration

Kate Redshaw was pleased to contribute to a thought-provoking HR Grapevine article on the value of being cautious when it comes to AI integration.

HR developments for financial services firms

In this update, James Green highlights the key people-related developments for financial services firms to look out for in 2024, including SMCR reform and new rules on non-financial misconduct.

Time to Talk Day

To mark Time to Talk Day, Pip Galland and Emily Fox shared some reflections on how employers can 'walk the talk' on mental health support and employee wellbeing.

Update posted: 25 January 2024

Event

Webinar: Hot Topics in Employment Law 2024

1 February 2024 / 12.00pm – 1.00pm

2024 is shaping up to be a significant one for employers with a plethora of reforms in the pipeline – and the potential for radical change if a Labour government comes to power. There is a lot to keep on top of so do join our webinar to make sure you are in the know and can plan ahead.

Legal updates

Acas Code on flexible working requests

Acas has published an updated draft Code of Practice on requests for flexible working. The Code, which reflects the change to make the right a ‘day one’ right, is expected to come into force on 6 April 2024 alongside several procedural changes. Those procedural changes include a reduction in the amount of time that an employer has to respond to a request (from three months to two months) and an increase in the number of requests an employee can make in any twelve-month period (from one request to two requests).

The draft Code provides guidance for employers to help them respond to requests. It is likely to be one of the main reference points for employers to determine what level of consultation to carry out under the new requirement for consultation with an employee before rejecting any flexible working request.

Read the draft Code here >

Paternity leave changes

Draft legislation was published earlier this month which sets out proposed reforms designed to provide more choice and flexibility around how and when statutory paternity leave is taken. If these changes are approved, eligible fathers and partners will be able to:

take the leave at any time in the first year after birth or placement for adoption, rather than in the first eight weeks (as is currently the case);
take the leave in two separate one-week blocks, rather than having to decide between taking one week only or taking two weeks of leave in one block (as is currently the case); and
provide 28 days’ notice of the dates of their leave, with a few limited exceptions.

These changes are set to apply to children whose expected week of birth begins after 6 April 2024 or expected placement for adoption is on or after 6 April 2024. The legislation now awaits parliamentary approval.

Immigration health surcharge increase

The implementation date for the planned increase to the Immigration Health Surcharge has now been confirmed. The surcharge is payable by visa applicants and their dependants to fund their access to the NHS, but in practice is commonly reimbursed by employers. The increased rates (from £624 to £1,035 per year per adult and from £470 to £776 per year per chid) will apply to applications made on or after 6 February 2024.

Settlement of future claims

The Scottish Court of Session has held that a future discrimination complaint was waived under the terms of a settlement agreement.

The claimant entered into an agreement after opting for voluntary redundancy. The settlement terms included:

an enhanced redundancy payment, notice pay and an additional payment to be calculated under the terms of a collective agreement;
an agreement not to pursue claims for direct or indirect discrimination on the grounds of age; and
a statement that the waivers were irrespective of whether or not he was aware of such claims at the date of the agreement.

The respondent later concluded that the claimant, who was 61, was ineligible for the additional payment because the collective agreement did not apply to those over the age of 60. The claimant brought a claim for post-employment age discrimination relating to the decision not to pay the additional payment.

The Court of Session concluded that the claimant was barred from pursuing the age discrimination complaint as a result of the settlement agreement. It held that waiver of future claims was possible in these circumstances but made it clear that the scope of settlement will hinge on the exact wording in the agreement. The case underlines the importance of careful drafting of settlement terms to ensure that the parties are clear on the type of claims that are being waived.

(Bathgate v Technip Singapore PTE Ltd)

Industrial action update

Yesterday, the Trades Union Congress (TUC) and the Recruitment & Employment Confederation (REC) issued a joint statement urging the government not to go ahead with its proposal to remove the rule that prevents employment agencies from supplying agency workers to cover the duties normally performed by striking workers. The TUC and REC stated their belief that the use of agency staff could prolong strikes and inflame conflicts between employers and permanent staff. They also noted concerns raised by the Equality and Human Rights Commission regarding the potential impact on the right to freedom of assembly and association under Article 11 of the European Convention on Human Rights. Consultation into the proposal closed on 16 January and the government’s response is awaited.

In other industrial action news, the government has published a draft revised Code of Practice on Picketing. The Code has been amended in light of the new requirement, where minimum service levels have been set, for trade unions to take reasonable steps to ensure that their members identified in a work notice do not take part in the strike. The revised Code signposts to the separate Code of Practice on reasonable steps to be taken by a trade union, which came into effect on 8 December 2023.

Thought-leadership, themes and trends

FCA ramps up efforts to tackle sexual harassment

James Green considers evidence from the Treasury Committee's ‘Sexism in the City’ Inquiry last week and what it means for firms, as the FCA gave further indications of its intention to crack down on non-financial misconduct.

Non-financial misconduct and the new duty to prevent sexual harassment

Given the FCA’s focus on non-financial misconduct (including harassment), the new duty to take reasonable steps to prevent sexual harassment is of particular importance for financial services employers. In this blog post, James Green and Rebecca Mullins explain how to prepare for the new duty.

Update posted: 11 January 2024

Thought-leadership, themes and trends

Five employment law actions for 2024

In this video, our Head of Employment, Adrian Martin shares his suggestions on what should be on your employment law 'to do' list for 2024.

Watch here >

Preventing workplace sexual harassment

In October 2024, a new duty for employers to take reasonable steps to prevent sexual harassment of their employees will come into force. In this article, Katie Russell and Rebecca Mullins look at the new duty and what employers can do to prepare for its introduction.

Legal updates

Holiday pay and entitlement reforms

On 1 January, significant holiday pay and entitlement reforms took effect and the government issued accompanying guidance.

The onus now shifts to employers to review their current holiday arrangements and decide on next steps. The reforms represent a significant shake-up of holiday pay arrangements, particularly for workers who qualify as ‘irregular hours’ or ‘part year’ workers, so there is a lot for employers to consider and review. In this article, we set out our pick of the key actions for employers to take as part of this review.

Immigration changes – update

The government has provided some further details on its planned changes to several key immigration routes. In relation to the Skilled Worker route, it has indicated that individuals already in the route prior to the changes coming into effect, which is anticipated to be in Spring 2024, will be exempt from the new minimum salary threshold of £38,700 when they change employer, extend or settle. Full details of transitional arrangements and further policy details are expected in the coming months so sponsoring employers should watch this space.

In other immigration news, the previously announced increase to the Immigration Health Surcharge (from £624 to £1,035 per year per adult and from £470 to £776 per year per child) is expected to come into effect in the coming weeks. The surcharge is payable by visa applicants and their dependants to fund their access to the NHS, but in practice is commonly reimbursed by employers. The earliest the increase can take effect is 31 January 2024, but the exact implementation date will depend on when the Order is made. We will keep you posted on this in upcoming Employment Edits.

Distributing tips fairly

Last year, the Employment (Allocation of Tips) Act 2023 was passed by parliament. Once fully in force, the Act will introduce a range of new measures, including a new duty on employers to ensure that all qualifying tips are allocated fairly between workers and a requirement for relevant employers to have a written policy on how they deal with tips.

To support employers with these measures, the Department for Business and Trade has now issued a draft statutory code of practice on the fair and transparent distribution of tips. The draft code includes guidance on what types of payment constitute qualifying tips and how an employer should choose the factors to determine the allocation and distribution of such tips. The consultation into the draft code will close on 22 February 2024. The government’s aim is for the final code and the full measures in the Act to come into force on 1 July 2024.

Given some changes may take time to implement, employers in the hospitality and other affected sectors should take steps now to prepare for these measures. Steps could include reviewing the draft code, auditing current tipping arrangements and considering what changes may be required in readiness for the new measures coming into force.

Read the draft code here >

Events

Hot Topics in Employment Law 2024 webinar

1 February 2024 / 12.00pm – 1.00pm

Disciplinary allegations and regulatory misconduct in Financial Services

17 January 2024 / 12.30pm - 1.30pm

In this MBL webinar, James Green will share his top tips for HR professionals managing investigations into disciplinary allegations involving regulatory misconduct in the Financial Services sector. Check out this page for more details on how to sign up.

Details here >

Update posted: 14 December 2023

Save the date: 1 February 2024

Hot Topics in Employment Law 2024 webinar

1 February 2024 / 12.00pm – 1.00pm

2023 has been another busy year for HR professionals and in-house employment lawyers, and 2024 looks set to be an even busier one! Our Hot Topics webinar on 1 February will bring you up to speed on recent cases as well as key reforms and trending topics, to make sure you’re in the know and can plan ahead for a successful 2024 (and beyond).

Registration will open in the new year.

Legal updates

Flexible working

Legislation has been passed this week which removes the requirement for an employee to have 26 weeks’ continuous service with their employer in order to be eligible to make a flexible working request. This change, which will take effect for applications made on or after 6 April 2024, will make the right to make a flexible working request a ‘day one’ right.

We anticipate that the other changes to flexible working requests contained in the Employment Relations (Flexible Working) Act 2023 (including the change to allow two requests in any 12-month period) will also apply to applications made on or after 6 April 2024, but confirmation of this point is awaited.

Carer’s leave

Draft regulations have been published which provide details on how the new statutory right to carer’s leave will operate from 6 April 2024. The headline points from the draft regulations are:

Any employee who has a dependant with long-term care needs is entitled to up to one week’s unpaid carer’s leave in any 12-month period when they ‘want[s] to be absent from work to provide or arrange care’;
Leave can be taken in one continuous block or on separate days but a minimum of a half a day must be taken at a time;
The employee must comply with certain notification requirements, and there are limited circumstances in which an employer can postpone the leave requested; and
The employer cannot require the employee to supply evidence in relation to a request for carer’s leave.

If the regulations are approved, employers will need to implement a carer’s leave policy and ensure that their payroll and time & attendance systems are ready for the new type of leave.

Redundancy protection for pregnant employees and family-leave returners

Further draft regulations have been published this week which would, if approved by parliament, extend certain redundancy protections to a wider category of employee. The requirement to offer suitable alternative vacancies (where available) to certain employees in a redundancy situation is set to be extended to cover:

pregnant employees;
employees who have returned from statutory maternity or adoption leave; and
employees who have returned from at least 6 consecutive weeks of statutory shared parental leave (and are not already covered by the maternity and adoption protection).

Pregnant employees would gain this additional protection from the point at which they inform their employer of their pregnancy, whilst eligible parents returning from maternity, adoption or shared parental leave would be covered for 18 months after the expected week of childbirth, the date of placement for adoption or the date of the child’s birth (depending on their particular circumstances).

The changes are due to take effect for statutory maternity or adoption leave which ends on or after 6 April 2024, a relevant period of shared parental leave which starts on or after 6 April 2024 and to pregnant employees who inform their employer of their pregnancy on or after 6 April 2024. Employers will need to be mindful of these changes when planning any restructuring exercises involving potential redundancies.

Significant immigration changes

In a bid to reduce net migration, the Home Secretary recently announced major changes to several key immigration routes. The most significant changes for employers are that:

the minimum salary threshold under the Skilled Worker route will rise from £26,200 to £38,700;
there will be an end to the 20% reduction to the Skilled Worker minimum salary threshold for jobs on the shortage occupations list; and
in line with the approach already taken for students, overseas care workers will no longer be able to bring dependants with them under the Health and Care Worker visa route.

The above changes are expected to take effect in spring 2024. Employers will need to factor these changes into their recruitment planning and where possible, in order to fall within existing lower salary thresholds, may wish to consider sponsoring workers at an earlier stage, or for a longer period, than they would otherwise do. Our business immigration team are well placed to advise on when this might be a possibility.

Redundancy consultation

The EAT has held that an employee’s redundancy dismissal was unfair where the employer failed to carry out meaningful workforce consultation at a formative stage.

The respondent identified a need to reduce headcount in its recruitment team and it carried out a scoring exercise using a standard set of subjective criteria from its US parent company. The claimant scored lowest in this exercise. The respondent then held three individual consultation meetings with the claimant, before dismissing him. No consultation took place with the workforce prior to the scoring exercise.

The EAT held that there was a clear absence of consultation at the formative stage, which meant there was no opportunity to discuss different approaches to any aspect of the employer’s redundancy process. Although potential gaps in the individual consultation with the claimant could be corrected during an appeal, the failure to consult with the workforce could not. The decision underlines the importance of appropriate workforce consultation, even where collective consultation obligations are not triggered.

(De Bank Haycocks v ADP RPO UK Limited)

Industrial action updates

In the last week, minimum service levels under the Strikes (Minimum Service Levels) Act 2023 have come into force for passenger rail, ambulance and border security services. Relevant employers in those sectors are now able to issue work notices identifying workers required to work during a strike in order to meet those minimum service levels.

In related news, a Code of Practice on the reasonable steps that a trade union should take in order to meet its duties under the Act has been approved and issued. If a trade union fails to take reasonable steps to ensure that its members identified in a work notice do not take part in the strike, it could face claims from the employer. Some of the recommended reasonable steps in the Code include identifying those workers on a work notice who are the union’s members and issuing relevant members with an individual communication encouraging them to comply with the work notice. The Code took effect from 8 December 2023.

Thought-leadership, themes and trends

Healthy culture in financial services

In this blog post, James Green considers the FCA’s continued focus on driving change through healthy cultures (including via new rules on D&I and non-financial misconduct).

Non-financial misconduct

James Green was pleased to be quoted in an interesting City A.M. article and provide his comments on the challenges firms will face with the FCA's increasing focus on non-financial misconduct.

Team news

Welcome back to senior associate Victoria Newman on her return from maternity leave this week. Victoria advises employers and employees in both the public and private sectors on a broad range of contentious and non-contentious employment and HR issues. She has particular experience in defending complex employment tribunal claims and resolving employment disputes.

Update posted: 30 November 2023

Team news

Last week was an exciting week for our team, as we were named ‘Employment Law Firm of the Year’ at the Personnel Today Awards 2023. The award was in recognition of the work we have done in supporting our clients and the wider HR community in responding to the cost-of-living crisis.

This is the second time we have won this prestigious award and we are thrilled that our efforts have been recognised in this way. We are grateful to all our clients who supported our submission by providing such positive feedback. We would like to thank you, our clients and wider circle of contacts, for the trust that you show us, which we very much appreciate.

Legal updates

Employment status for collective bargaining

The Supreme Court has ruled that Deliveroo riders are not in an ‘employment relationship’ for the purposes of Article 11 of the European Convention on Human Rights, and so do not have the right to form and join trade unions.

The Independent Workers Union of Great Britain (IWGB) applied to be recognised for collective bargaining purposes on behalf of a group of Deliveroo drivers. The application was rejected by the Central Arbitration Committee (CAC) as it found that the riders, who were described as ‘independent contractors’ in the paperwork with Deliveroo, were not ‘workers’. IWGB challenged this, arguing that it was a breach of Article 11.

Article 11 includes a right to form and join trade unions but that particular right is only open to those in an employment relationship. The Supreme Court took a range of factors into account when concluding that the riders were not in an employment relationship. The Court paid close attention to the fact that the riders were able to send a substitute in their place, without prior approval from Deliveroo. This broad right of substitution, which the Court noted was virtually unfettered, was inconsistent with there being an employment relationship.

(Independent Workers Union of Great Britain v Central Arbitration Committee and another)

Minimum wage increased rates announced

Last week, the government announced increases to the National Living Wage and National Minimum Wage. It has also adjusted the National Living Wage (which currently applies to workers aged 23 or over) so that it will apply to 21 and 22 year-olds as well.

The new rates, which apply from 1 April 2024, will be:

£11.44 per hour for workers aged 21 and over;
£8.60 per hour for 18 to 20 year olds; and
£6.40 per hour for 16 to 17 year olds and apprentices.

Preventing illegal working

The government has issued an updated draft code of practice on preventing illegal working. The new code is due to come into force from 22 January 2024 and at the same time as the previously announced higher rates of civil penalties that apply where an employer employs a person who does not have the correct permissions to work in the UK.

From 22 January 2024, the maximum civil penalty will be £45,000 per illegal employee for a first breach (up from £15,000), and £60,000 per illegal employee for repeat breaches (up from £20,000). An employer could face a civil penalty (as well as potential criminal sanctions) if they are found to have employed an illegal employee and have not conducted valid right to work checks.

On the topic of right to work checks, why not check out our on-demand webinar (see below) which covers the prevention of illegal working regime and right to work checks as well as an introductory guide to employing overseas nationals in the UK.

Occupational health and fit note reforms

The Department for Work and Pensions has issued its response to the ‘Working Better’ consultation it ran earlier this year looking at the provision of occupational health (OH). The actions the government intends to take forward include development of a voluntary minimum framework for quality OH provision, setting out the minimum level of OH intervention that employers should adopt.

As part of its ‘Back to Work’ plan, the DWP has also announced that it will consult on reforms to fit notes, with a view to making access to specialist work and health support quicker and easier. Before the consultation, trials will be run in some care boards offering triage, signposting and support to those who have received a fit note for a prolonged period of time.

Industrial relations news in brief

The government has launched a consultation into its proposal to remove the rule that prevents employment agencies from supplying agency workers to cover the duties normally performed by striking workers. The government originally removed this rule earlier this year, before the High Court determined the change was unlawful due to a lack of consultation.

New guidance was published last week regarding the ‘work notices’ that can be issued under the Strikes (Minimum Service Levels) Act 2023. The guidance is a must read for those working in sectors where minimum service levels have been or might be set.

Earlier this week, the government launched a consultation on the most appropriate approach for delivering minimum service levels for education services.

Webinars on-demand

Employing overseas nationals in the UK: an introductory guide for employers

Our most recent webinar is now available on-demand. In the webinar, we provide an overview of the UK immigration system (with a focus on the key immigration routes for employers) and cover the prevention of illegal working regime and right to work checks.

Watch now >

Right to work checks

Megan Summers and Katie Hayes have recorded a new on-demand webinar for MBL: ‘Right to Work Checks - A Bite Size Guide for HR Professionals’. The webinar will be available from tomorrow for MBL subscription holders.

Details here >

Update posted: 16 November 2023

Legal Updates

Working time changes on the way

After completing consultation into proposed holiday, working time and TUPE reforms announced earlier this year, the government has now issued its response to that consultation along with draft legislation setting out the changes it intends to make. The draft legislation includes some significant changes to holiday entitlement and pay for irregular hours and part-year workers. With many of the changes due to take effect in the first 6 months of 2024, employers do not have long to take stock and review their own practices. In our article, we take a closer look at the changes and what they mean for employers.

Read our article here >

Equality Act amendments

In the lead up to 1 January 2024, when various aspects of EU law are going to be disapplied under the Retained EU Law (Revocation and Reform) Act 2023, the government has issued draft legislation seeking to codify certain principles of EU discrimination law to ensure that those principles remain binding after the end of this year. We may see more updates like this in the coming weeks as the government seeks to provide certainty and avoid the risk of certain interpretative effects of EU case law falling away when the Act takes effect.

The draft legislation includes provisions seeking to:

replicate the single source test for equal pay claims, which allows employees to compare their pay to comparators employed by other organisations, but whose terms and conditions are attributable to the same single source;
ensure that work-related activities are considered when assessing whether someone is disabled for the purposes of disability discrimination protections; and
expand the circumstances in which women can be afforded special treatment to include treatment in connection with maternity (and not just treatment in connection with pregnancy or childbirth).

Industrial action updates

There have been a number of developments on the industrial action front since our last Employment Edit.

The government has issued its response to the consultation on the draft Code of Practice on the reasonable steps that a trade union should take in order to meet its duties under the Strikes (Minimum Service Levels) Act 2023. Where a minimum service level has been set and a strike notice has been given, an employer can issue work notices to relevant unions identifying the staff who are required to work during the strike in order to meet the minimum service level. If a trade union fails to take reasonable steps to ensure that its members identified in such a work notice do not take part in the strike, it could face claims from the employer.

The draft Code of Practice contains recommended reasonable steps, including identifying those workers on a work notice who are the union’s members and issuing relevant members with an individual communication encouraging them to comply with the work notice. An updated Code, which no longer requires a union to send a communication to the wider membership in order to demonstrate reasonable steps, will now be reviewed by parliament before it can come into effect.

Separately, the government has introduced draft legislation setting out the minimum service levels that it intends to introduce for passenger rail, border security and ambulance services. For passenger rail, for example, the level is equivalent to 40% of the operator’s normal timetable operating as normal. If approved by parliament, these levels may be in force by the end of 2023.

Finally, the government has announced that it intends to issue a consultation on removing the rule that prevents employment agencies from supplying agency workers to cover the duties normally performed by a worker who is taking part in a strike (after the government’s previous attempt to do so was ruled unlawful due to a lack of consultation).

Thought-leadership, themes and trends

Competition issues in UK labour markets

In her latest blog post, Kate Redshaw looks at what employers and HR professionals need to know in light of the Competition Market Authority (CMA) making potential competition issues in UK labour markets an area of focus for 2023-24.

AI in the legal sector

Katie Russell was pleased to have the opportunity to contribute to The Scotsman’s ‘Legal Review 2023: Striking the right balance’, and to share her thoughts on AI.

Spotlight on Fintech

In this 'Spotlight on Fintech' video, Ellen Goodland shares details of our experience of supporting fintechs with their people-related issues.

Watch here >

Events

Webinar - Employing overseas nationals in the UK: an introductory guide for employers

Date/Time: 21 Nov 2023 / 12.00pm - 1.00pm

With the recent Home Office announcement that illegal working penalties will see a threefold increase, now is a great time to get to grips with the basics of the UK immigration system or just refresh your knowledge. Our webinar will give an overview of the system, with a focus on the key immigration routes for employers. We will also cover the prevention of illegal working regime and right to work checks.

Update posted: 2 November 2023

Team news

The two best-known legal directories, Legal 500 and Chambers, have recently published their latest editions and we are delighted that our employment team has retained tier 1 rankings in both. A huge thank you to our clients for providing amazing feedback. We share some of their comments below.

‘There is a strong ethos for high-quality work which comes through everyone you encounter and work with.’

‘The team really take time to understand the issues, the organisation, business risk appetite and preferred approach.’

‘The team approaches work in a collaborative and friendly manner, which makes them feel like colleagues. They are both pragmatic and thoughtful in their approach. They work across my team who are at different levels and pitch information and advice appropriately. Invaluable contribution to our team.’

On the topic of team news, welcome back to associate Hannah Malone on her recent return from maternity leave. Hannah advises on the full spectrum of employment law issues, including complex tribunal claims and the employment aspects of corporate transactions. She is also a specialist in business immigration matters, including sponsor licences and duties, visa applications and right to work requirements. Hannah will be sharing her knowledge at our upcoming business immigration webinar on 21 November (more on this below).

Legal updates

Duty to prevent sexual harassment

The government has passed new legislation, the Worker Protection (Amendment of Equality Act 2010) Act 2023, which will introduce a new duty for all employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment.

If an employer is in breach of this duty, it could face:

potential enforcement action by Equality and Human Rights Commission (EHRC); and/or
a potential uplift of up to 25% in compensation if a tribunal finds that an employee has been subjected to sexual harassment and the employer failed to take reasonable steps to prevent that harassment.

The main provisions of the Act (including the new duty) will come into force in October 2024. In the meantime, employers should review their policies, procedures and training programmes to ensure that they are taking sufficient steps to meet the new duty. The EHRC’s technical guidance on sexual harassment and harassment at work (first published in 2020) will be updated to reflect the new duty and to set out the steps that employers should take.

Predictable working patterns – ACAS code

ACAS has published a draft Code of Practice on handling requests for a predictable working pattern, to accompany the new right to make such requests (which is due to come into force in autumn 2024). The Code has been published in draft form, as ACAS seeks views on it as part of a consultation which closes on 17 January 2024.

The draft Code includes guidance on how an employer should handle a request for a predictable working pattern, which includes a number of similar recommendations to those that ACAS suggests when an employer is handling a flexible working request. It also provides guidance on when a request might be considered to be both a request for flexible working and a request for a predictable working pattern, and states that a worker may only have one live request with their employer at any one time.

Read the draft code here >

Disclosing criminal records

The periods within which certain criminal convictions must be disclosed to prospective employers have been reduced in order to remove a barrier that some ex-offenders faced when seeking employment. Amendments to the Rehabilitation of Offenders Act 1974 mean that, with effect from 28 October 2023, certain offences will become ‘spent’ sooner and will not need to be disclosed to employers after that point. For example, custodial sentences of more than four years will now be spent seven years after the sentence has been served, unless the individual commits a further offence in that period. Previously, such convictions were never spent. There are exceptions to these new rehabilitation periods, including for certain serious offences (which will never be spent) and where the role involves working with vulnerable people (which will continue to be subject to stricter disclosure requirements via DBS checks).

Thought-leadership, themes and trends

Labour’s employment proposals

With a general election on the horizon, Kate Redshaw explores the Labour party's proposals to introduce significant changes to employment law (if elected) and considers what those reforms could mean.

Bonus cap scrapped!

James Green considered the potential impacts of the FCA and PRA removing the bonus cap for banks, building societies and certain PRA-designated investment firms.

Insolvency practitioners & collective redundancies

James Green looks at a Supreme Court decision published yesterday which confirmed that administrators do not have personal criminal liability where a company fails to file an HR1 to notify the Secretary of State before making collective redundancies.

Events

Webinar - Employing overseas nationals in the UK: an introductory guide for employers

Date/Time: 21 Nov 2023 / 12.00pm - 1.00pm

Update posted: 19 October 2023

Legal updates

Holiday pay claims unlocked

Last edition we reported on a landmark holiday pay decision which was a breaking news story. In Chief Constable of the Police Service of Northern Ireland v Agnew, the Supreme Court confirmed that a gap of three or more months between deductions will not automatically break a series of deductions, and nor will a lawful payment. These findings could have significant ramifications for unlawful deductions claims, particularly for those relating to holiday pay.

As the dust has started to settle after the decision, we have written an article taking a closer look at the Supreme Court’s decision and focussing on the key practical takeaways for employers. Check out our article to see what the case means for holiday pay and other unlawful deductions claims.

Read our article here >

Updated fit note guidance

Against the backdrop of research results indicating that sickness absence rates are at their highest level in a decade (more on that below), the government has updated its guidance on fit notes. The guidance sets out actions that employers and line managers should take when they are provided with a fit note (also known as a ‘statement of fitness for work’) by an employee. The guidance has been updated to include an employer’s checklist and a guide explaining each of the sections of the fit note. It also includes a number of case studies, including a case study looking at a phased return to work and another concerning adjustments for an employee with long covid.

Read the guidance here >

Flexible working guidance

Ahead of planned changes to the right to request flexible working, ACAS has launched a ‘Flex at work’ campaign to help employers manage flexible working in the workplace. The campaign promotes the various resources that ACAS has available on this topic, including an updated written guide to making a flexible working request and upcoming webinars looking at five top tips for handling such requests.

The changes to the statutory right to request flexible working are due to come into effect in 2024, but an exact date and draft legislation making the right to make a request a ‘day one’ right is awaited from the government. ACAS intends to update its guidance in 2024 when those changes come into force. Watch this space for more news in this area.

Access ACAS' resources here >

Thought-leadership, themes and trends

Mental health first aid

Pip Galland, senior associate in the employment team and co-chair of our mental health first aid network, reflects on the role that mental health first aid can play in a successful wellbeing strategy.

Sickness absence

Sickness absence rates have reportedly reached their highest level for a decade, with an average of 7.8 days sick leave per employee per year. Pip Galland explores how preventative measures can help to reduce sickness levels.

Management incentive plans

Nigel Watson and Claire Withers, from the Burges Salmon share plans and incentives team, have written an article exploring how to bridge the gap between convenience and complexity when establishing a cash-based management incentive plan for a private equity backed company.

Events

Employing overseas nationals in the UK: an introductory guide for employers

Date/Time: 21 Nov 2023 / 12.00pm - 1.00pm

Update posted: 5 October 2023

Legal updates

Holiday pay: Supreme Court decides on the ‘three-month break’ rule

Yesterday the Supreme Court ruled on the validity of the three-month break rule which has, outside of Northern Ireland, been used to limit holiday pay (and other unlawful deductions of wages) claims.

Upholding the decision of the Northern Ireland Court of Appeal (NICA), the Supreme Court has confirmed that a gap of three or more months between deductions will not necessarily break a series of deductions. This means that, even when there has been a three-month gap between underpayments, a claimant may still be able to claim for those ‘pre-gap’ underpayments if they form part of a series of deductions (it is a question of fact whether a deduction forms part of a series).

Equally a correct payment of holiday pay will not automatically break the series of deductions if that correct payment of holiday pay was calculated by reference to ‘basic pay’ as opposed to ‘normal pay’ (which should include an element to reflect overtime that is usually worked). The decision further highlights the importance of calculating holiday pay correctly, inclusive of relevant remuneration in addition to basic pay.

This decision, unlike the decision of NICA, is binding in England, Wales and Scotland as well as in Northern Ireland and applies to all forms of payment in addition to holiday pay. However, its impact in these jurisdictions is likely to be more limited. This is because there is a two-year back-stop on unlawful deduction claims relating to holiday pay (and certain other types of pay). This back-stop means that an unlawful deduction claim is limited to two years’ worth of losses dating back from the presentation of the claim.

This decision is a breaking news story. We will be sharing our wider thinking on its implications shortly.

Chief Constable of the Police Service of Northern Ireland & PSNI another v Agnew & others (Northern Ireland) [2023] UKSC 33.

Employer successfully defends its requirement for weekend work

An Employment Tribunal has decided that an NHS Foundation Trust did not unlawfully discriminate against a community nurse, on the grounds of sex, when it dismissed her for refusing to work weekends. Mrs Dobson was asked to work occasional weekends, with notice, as the Trust looked to move to a more 24/7 service and to treating more patients at home. Mrs Dobson was unable to agree to this as she had two disabled children and said she had no family members to help with childcare.

Commenting that ‘an employer’s needs as a whole…must sometimes prevail’, the Tribunal decided that the Trust’s provision, criterion or practice of requiring its community nurses to work on occasional weekends was proportionate to achieving its legitimate aim (including to move to a more 24/ 7 service) when balanced against the disadvantage to Mrs Dobson (which it found to be at the lower end of the scale as it transpired some childcare was available).

It can be difficult for employers to win cases like this as the Tribunal is expected to take ‘judicial notice’ of the fact that, for childcare reasons, women are less likely than men to be able to accommodate certain working patterns which can leave employers at risk of indirect sex discrimination. To successfully defend this type of claim, you will need to show that your reasons for requiring the working pattern are sufficiently compelling to justify any disadvantage that the employee may suffer. This should include considering if there are alternative, less disadvantageous ways of resolving the issue before making any final decisions.

New guidance from the ICO on lawful monitoring of workers

Employers have long-since had policies in place allowing them to monitor their workers’ emails, internet usage, phone calls etc. However, the recent rise in home-working, coupled with ever more sophisticated technology, has seen some employers look to go further. Keystroke tracking, webcam footage and audio recordings are now increasingly common, for example.

With this in mind, the Information Commissioner’s Office has just released new guidance to help employers stay on the right side of the data protection laws. The guidance provides direction on how monitoring can be conducted lawfully and fairly as well as considering specific types of monitoring practices including the use of biometric data to monitor time-keeping and attendance.

National Living Wage to rise

This week the Chancellor of the Exchequer has committed to accepting the Low Pay Commission’s (LPC) recommendations on increasing the National Living Wage which will be announced in November. Based on the LPC’s latest forecast this would see the NLW, payable to those aged 23 and over, increase to over £11 per hour from April 2024.

Thought-leadership, themes and trends

FCA and PRA's proposals signal new approach to diversity and inclusion in financial services

Burges Salmon director, James Green, has been turning his mind to the FCA and PRA’s new proposals for diversity and inclusion in the financial services sector. Do the proposals signal a new approach?

Over before it begins: what to do when recruitment goes sour

Given the ongoing competition for talent, you may want to read Kate Redshaw's piece in HR Director on what to do if a new recruit decides not to join you.

Events

Save the date: 21 November 2023

Webinar: An introduction to business immigration in the UK

The UK immigration system has changed significantly over the last few years. Together with the recent Home Office announcement that illegal working penalties will see a threefold increase, now is a great time to get to grips with the basics or just refresh your knowledge.

Our webinar will give an overview of the UK immigration system, with a focus on the key immigration routes for employers. We will also cover the prevention of illegal working regime and right to work checks

Time: 12.00pm - 1:00pm
Booking information and further details will follow soon.

Technology Week: The Breakfast Club

Join our incentives partner, Nigel Watson and employment director, Jamie Cameron, who, together with Ghyston, will be hosting an engaging and insightful networking event at the Engine Shed, exploring the vibrant tech talent landscape in Bristol and the South West.

Date/Time: 10 Oct 2023 / 8.00am - 9.00am
Location: Engine Shed, Bristol

Podcast: The pivotal role of HR in making AI a success

In this podcast, Kate Redshaw, head of practice development for Burges Salmon's Employment team, spoke to XpertHR about the role for HR in AI deployment and shared her tips for how to get started if your organisation is at the beginning of your AI ‘journey’. Check out the podcast using the link below or via your usual podcast platform.

Listen here >

Update posted: 21 September 2023

Menopause and disability discrimination

An employment tribunal recently upheld disability discrimination claims raised by an employee suffering from menopausal symptoms.

After four years of positive performance ratings in her role as a telesales consultant, the claimant began to experience menopausal symptoms. These symptoms, which the claimant informed her line manager about, included emotional instability and inability to retain information. She received a lower performance rating in 2020, which prevented her from receiving a pay rise, in part due to the claimant’s extended time on calls and two poor calls. She later received a written disciplinary warning and a three month ‘success plan’ on the back of ongoing performance concerns. After a period of sickness absence and raising a grievance, the claimant resigned and brought employment tribunal proceedings.

The tribunal dismissed the claimant’s claims of age and sex discrimination, and her claim of constructive unfair dismissal. However, the tribunal upheld her disability discrimination claims. In particular, the tribunal found that the lower performance rating and the disciplinary warning were unfavourable treatment because of something arising in consequence of her disability. It also held that her employer failed to make reasonable adjustments after it knew about her disability. Some of the adjustments it suggested were reduced call time targets, consideration of a role without telephone duties, abandoning the disciplinary process or accepting her disability as mitigation.

Whilst not binding on other tribunals, this case is a useful reminder of the importance of considering the potential impact of someone’s disability (which might include menopausal symptoms) on their work, and ensuring that this is factored into any performance or appraisal process appropriately.

(Lynskey v Direct Line Insurance Services Ltd)

New right to request predictable working pattern

Legislation was passed into law earlier this week which will give certain workers and agency workers a new right to request a predictable working pattern.

Workers who have an unpredictable working pattern will be able to apply for a change to their terms and conditions of employment to get a more predictable working pattern. Eligible workers will include those on a fixed term contract of 12 months or less, and those on zero hours contracts. Employers will need to respond to such requests within one month and will only be able to reject an application on one or more statutory grounds, including where there is insufficient work during the periods of time the worker proposes to work. Eligible workers will be allowed to make a maximum of two applications during any period of 12 months.

Further details (including the length of service a worker will need to have in order to be eligible to make a request and a new ACAS code of practice on this topic) are expected to be published in due course. The government estimates that the right will come into force around a year from now.

Read the government’s press release here >

Podcast: The pivotal role of HR in making AI a success

With AI and its potential risks dominating the headlines, it can be easy to overlook the potential benefits it offers. For any organisation looking to maximise the impact of AI on their operations, HR professionals have a pivotal role to play in unlocking those benefits. In a podcast published last week, Kate Redshaw, head of practice development for Burges Salmon's Employment team, spoke to XpertHR about the role for HR in AI deployment and shared her tips for how to get started if your organisation is at the beginning of your AI ‘journey’. Check out the podcast using the link below or via your usual podcast platform.

Listen here >

Recruitment and withdrawn offers

Statistics and surveys continue to show a tight recruitment market in many sectors. Against that backdrop, Kate Redshaw has written a blog post exploring some of the tricky issues that can crop up when circumstances change during the recruitment process.

Read Kate’s blog post here >

Last chance! Bristol panel discussion: managing difficult long-term absence issues

Following a successful event in our London office, we are pleased to be re-running our long-term absence management panel discussion at our Bristol office on Tuesday 26 September 2023. Managing long-term absence is a notoriously difficult area, where it is all too easy for the employer to lose control of the situation. If this is an area you find tricky to manage, why not come along to our in-person event next week to pick up some top tips?

To find out more details of what we’ll be covering and to register for the event, click the link below.

Find out more here >

Attracting and retaining talent in the tech industry

On 10 October 2023, Lucy Pegler, a partner in the Technology team, will be joined by a range of fellow Burges Salmon experts for a panel event looking at how to attract and retain great talent in a fast-paced, evolving technology industry. The panel will discuss a range of topics that are affecting the technology sector, including retention of talent, flexible equity incentives, alternative working models and immigration after Brexit.

Update posted: 7 September 2023

Minimum service levels - reasonable steps to be taken by a trade union

The government has launched a consultation seeking views on the ‘reasonable steps’ a trade union should take in order to meet its duties under the Strikes (Minimum Service Levels) Act 2023. Where a minimum service level has been set and a strike notice has been given, an employer can issue work notices to relevant unions identifying the staff who are required to work during the strike in order to meet the minimum service level. If a trade union fails to take ‘reasonable steps’ to ensure that its members identified in such a work notice do not take part in the strike, it could face claims from the employer.

The consultation seeks views on a draft statutory Code of Practice providing guidance on those ‘reasonable steps’. The draft code contains recommended reasonable steps, including:

identifying those workers on a work notice who are the union’s members and, prior to any ballot for industrial action, keeping membership data up to date to help with that identification process;
issuing relevant members with an individual communication (referred to as a ‘compliance notice’) providing certain details, advising them not to strike and encouraging them to comply with the work notice; and
sending general communications (referred to as an ‘information notice’) with prescribed information to all members who the union believes may be induced to take part in the strike.

The draft code includes a template compliance notice and a template information notice. The consultation closes on 6 October 2023.

Access the draft code and the consultation here >

ICO guidance on workers’ health information

Last week, the Information Commissioner’s Office (ICO) published new guidance for employers on workers’ health data.

As the guidance acknowledges, health information is some of the most sensitive data that an employer may hold in relation to a worker. With that in mind and given the fact that health information is ‘special category data’ under the GDPR (meaning that there are additional legal hurdles that need to be overcome in order to lawfully collect and process that data), it is particularly important for employers to ensure that their handling of health information is carried out with care. As well as detailing employers’ legal obligations in relation to this type of data, the guidance also includes some examples of good practice which employers may want to consider.

Read the guidance here >

Equal pay single source protection to be retained

The government intends to introduce new legislation to replicate the current EU equal pay rule which allows employees to compare their pay to comparators employed by other organisations, but whose terms and conditions are attributable to the same single source – known as the ‘single source’ test. Employees have relied on this test in various circumstances, including outsourcing situations or where the work is in different locations.

The single source test is currently contained in the Treaty on the Functioning of the EU and would, without new legislation, not form part of UK law from 1 January 2024 under the terms of the Retained EU Law (Revocation and Reform) Act 2023. Following the government’s statement last week, draft legislation to introduce a UK-version of the single source test is expected before the end of this year.

Bristol panel discussion: managing difficult long-term absence issues

Following a successful event in our London office, we are pleased to be re-running our long-term absence management panel discussion at our Bristol office. Managing long-term absence is our most requested topic when we ask about preferred areas for training. We can’t say we are surprised as it is a notoriously difficult area, where it is all too easy for the employer to lose control of the situation. If this is an area you find tricky to manage, why not come along to our in-person event to pick up some top tips?

We will start with a quick run through of key considerations when managing long-term absence, before discussing how to approach some of the most common issues, including what to do when an employee goes absent with stress during a performance management process. To find out more details of what we’ll be covering and to register for the event, click the below.

Find out more here >

Update posted: 24 August 2023

Reasonable adjustments during recruitment

The EAT recently held that requiring applications via an online application form put a candidate with dyspraxia at a substantial disadvantage and triggered the employer’s duty to make reasonable adjustments.

Instead of completing the online application form (which would have required him to create a username and password), the claimant in this case emailed his CV to the respondent’s HR team and requested that he make an oral application because he has dyspraxia. The respondent contacted the claimant by email, informing him that he needed to complete the online form and asking which parts of the form he was finding it difficult to complete. The claimant did not inform the respondent of the particular difficulties he faced due to his dyspraxia, namely difficulties creating a username and password.

The tribunal held that the respondent had sufficient knowledge of the disadvantage experienced by the claimant to mean that it was under a duty make reasonable adjustments. Although the respondent did not know of the claimant’s particular difficulties in creating a username and password, the tribunal held that it ought to have known this as a reasonable employer would have telephoned the claimant to ask for more details about the difficulties he was facing with the process. Given his difficulties with written communication, the tribunal held that it was not reasonable to expect him to explain these matters in an email. The EAT upheld these findings and remitted the case to the tribunal to determine whether the claimant was a genuine applicant for the role. The case is a useful reminder of the importance of identifying where recruitment processes need to be adapted for applicants with disabilities – this could become even more important where artificial intelligence (AI) tools are used as part of the selection process.

(AECOM Ltd v Mallon)

AI and employment law

On the topic of AI, it continues to hit the headlines with many key stakeholders becoming increasingly nervous about the potential risks that AI poses to society and workplaces. Against this backdrop, the House of Commons library last week issued a research briefing on the topic of AI and employment law. The briefing considers, amongst other things, the ways in which AI is used in the workplace and the interaction between existing employment laws and the use of AI. It goes on to cover some of the proposals for AI regulation in the UK, including the government’s White Paper on AI regulation published in March this year, and details some approaches taken in other jurisdictions.

Read the report here >

Read our overview of the March 2023 White Paper here >

Positive action

Earlier this year, the government published new guidance on positive action in the workplace. In broad terms, positive action is where an employer treats those with a protected characteristic more favourably than others, with an aim of (amongst other things) enabling or encouraging those with the protected characteristic to overcome or minimise a disadvantage or to take part in a particular activity. In this blog post, Annelise Tracy Phillips (a Senior Associate at Burges Salmon) takes a closer look at the line between lawful positive action and unlawful positive discrimination.

Read Annelise’s blog here >

Share incentive plans and TUPE

An employee’s right to participate in a share incentive plan (SIP) transferred under TUPE even where that right was not contained in the employment contract, according to the Court of Session in Scotland.

The claimant voluntarily participated in a SIP with his original employer. The SIP was not mentioned in his employment contract and was instead contained in a separate share agreement. When the claimant’s employment transferred to the respondent under TUPE, the respondent said that it would not provide a SIP post-transfer and it would instead pay the claimant a one-off payment. The claimant argued that his right to participate in a SIP transferred under TUPE.

The EAT said that the SIP was part of the financial package of benefits the claimant received as an employee. It noted that the plan was not open to all members of the public and the claimant’s eligibility arose from his status as an employee. The EAT concluded that the SIP arose "in connection with" the employment contract. This meant that the respondent was obliged to provide the claimant with a scheme of substantial equivalence to the pre-transfer scheme. Last week, the Court of Session upheld the EAT’s findings. This case underlines the importance of carrying out thorough due diligence prior to any TUPE transfer to identify any share schemes or other benefits that could transfer, including those which are not in the employment contract.

(Ponticelli UK Limited v Gallagher)

Bristol panel discussion: managing difficult long-term absence issues

We will start with a quick run through of key considerations when managing long-term absence, before discussing how to approach some of the most common issues, including what to do when an employee goes absent with stress during a performance management process. For more details on what we will be covering and the format of the session, click here.

Update posted: 10 August 2023

Bristol panel discussion: managing difficult long-term absence issues

We will start with a quick run through of key considerations when managing long-term absence, before discussing how to approach some of the most common issues, including what to do when an employee goes absent with stress during a performance management process. For more details on what we will be covering and the format of the session, click here. Key details of the event are:

Date: Tuesday 26 September 2023

Registration and refreshments: 4:30pm - 5:00pm

Event starts: 5:00pm

Event finishes: 6:15pm

Drinks and nibbles: 6:15pm - 7:15pm

Location: Burges Salmon Bristol office, One Glass Wharf, Bristol, BS2 0ZX

Cost: Free of charge

If you would be interested in attending this event but at our Edinburgh office, please get in touch here.

Civil penalties for employing illegal employees

Earlier this week, the government announced a threefold increase to the civil penalties that apply where an employer employs a person who does not have the correct permissions to work in the UK.

All UK employers are required to prevent illegal working by conducting right to work checks to ensure that their employees have the right to work in the UK. If an employer is found to have employed an illegal employee and has not conducted valid right to work checks, they could face a civil penalty as well as potential criminal sanctions. This week the government announced that it intends to raise the maximum civil penalty to £45,000 per illegal employee for a first breach (up from £15,000), and £60,000 per illegal employee for repeat breaches (up from £20,000). These increased penalties are expected to come in to effect in early 2024.

This significant hike to the penalties puts even greater emphasis on the importance of having the correct right to work checks in place. Why not check out our guide for more information on this topic?

Read our guide here >

Burges Salmon Employment team news

It has been quite the fortnight for the Burges Salmon employment team with two pieces of exciting news to report:

We are thrilled to have been named as a finalist in the ‘Employment Law Firm of the Year’ category at the Personnel Today Awards 2023. The Personnel Today Awards celebrate the very best achievements and innovations in HR and L&D amongst a wide variety of organisations, in both the public and private sectors, across a diverse range of categories. Luke Bowery, Burges Salmon employment partner, said “This shortlisting is in recognition of the team’s work supporting clients and the wider HR community through a variety of challenges that they’ve faced over the past year, including the cost-of-living crisis.”

Read our press release here >

We are delighted that our Head of Practice Development, Kate Redshaw, has been appointed to The Law Society's Employment Law Committee. A core part of the committee’s work is to review and promote improvements in employment law and practice. Kate brings a wealth of experience to the role, and we know she will make invaluable contributions to the committee.

Early flexible working rights

Whilst several new and updated employment-based rights have recently been approved by parliament (including carer’s leave, neonatal leave and changes to flexible working rights), the implementation date for these changes is not yet known. Against this backdrop, Tesco recently announced that it will offer all employees the right to request flexible working from day 1 of employment. In her latest blog post Menna Chmielewski (an associate at Burges Salmon) considers whether we will start to see other employers looking to voluntarily introduce those rights earlier than legislation requires them to, in a bid to enhance their employee proposition.

Read Menna’s blog here >

Acas guidance – sickness absence

This week Acas issued updated resources to support employers and employees with queries relating to sickness absence. The resources include advice on a range of topics, including:

Fit notes and proof of sickness
Checking holiday entitlement and sick pay
Returning to work after absence
Recording and reducing sickness absence
Absence trigger points

As well as updated guidance (which forms part of Acas’ guidance on holiday, sickness and leave), Acas has produced a toolkit including factsheets and other resources.

Access the toolkit here >

Check out the updated guidance here >

Fair allocation of tips

Some parts of the Employment (Allocation of Tips) Act 2023 came into force on 31 July 2023. These newly in force provisions enable the Secretary of State to issue a statutory code of practice to provide guidance for employers on how to fairly and transparently distribute tips. The next step is for the government to issue a draft code for consultation, which is expected later this year.

Whilst the Act received royal assent in May this year, many of the key provisions (including the introduction of a duty for an employer to ensure that all qualifying tips, gratuities and service charges are allocated fairly between workers) will not come into force for some time. The latest estimate is that these key provisions will come into force in around May 2024, but this is yet to be confirmed.

Update posted: 27 July 2023

Flexible working reforms

Last week, the latest in a string of government-backed Private Members’ Bills was passed into law. The Employment Relations (Flexible Working) Act 2023 includes several changes designed to make it easier for employees to make flexible working requests. Under the Act:

an employee can make two requests in any twelve-month period (currently they can only make one);
the employer must respond to a request within two months (down from three months);
an employer cannot reject a request until it has consulted with the employee; and
an employee will no longer need to set out the effects of their request on their employer and how those effects might be dealt with.

The Act does not contain the most significant reform announced by the government in December 2022 – making the right to request flexible working a ‘day one right’. However, in its press release issued last week, the government said it expects secondary legislation (which we anticipate will implement the day one right reform) and the measures in the Act to come into force around a year from now. Employers should start reviewing their policies and procedures in readiness for this.

ACAS has also prepared an updated draft Code of Practice on handling flexible working requests. It has launched consultation on that draft Code, with consultation closing on 6 September 2023.

Read the press release here >

Read the ACAS consultation here >

Minimum service levels during strikes

Despite significant opposition, another notable bill was passed into law last week – the Strike (Minimum Service Levels) Act 2023 is designed to ensure minimum service levels are maintained in certain public services during industrial action.

Under the Act, the Secretary of State is given broad powers to set minimum service levels for specified public services in key sectors (including health services, education and transport). Where a minimum service level has been set, employers in that sector can then issue ‘work notices’ to relevant unions identifying the staff who are required to work in order to meet the level set. If a trade union fails to take reasonable steps to ensure that staff identified on the work notice do not take part in the strike, it could face claims from the employer. Workers identified on those work notices would also lose certain unfair dismissal protections if the reason for their dismissal is that they took part in the strike.

At this stage, the government has stated that it intends to implement minimum service levels in passenger rail, ambulance and fire and rescue services. It will also launch a consultation this summer seeking views on what reasonable steps a trade union might be expected to take to meet its duties under the Act. There remain a number of moving parts in this area and affected employers will want to keep a watching brief. We will keep you posted on further developments.

Agency workers and strikes

Sticking with the industrial action theme, the High Court has ruled that regulations introduced by the government last year to enable agency workers to provide cover during strikes are unlawful.

Until July 2022, employment agencies were prevented, by law, from supplying agency workers to cover the duties normally performed by a worker who is taking part in a strike or by any other worker who has been assigned to cover the striking worker. The government revoked that legislation with effect from 21 July 2022 so employment agencies were no longer prevented from supplying temporary workers to provide cover during strikes.

Several trade unions launched judicial review proceedings challenging the lawfulness of the regulations that brought about this change (the ‘Amendment Regulations’). Earlier this month, the High Court ruled that the government had not complied with its statutory duty to consult before making the Amendment Regulations and so the Amendment Regulations were unlawful. The High Court quashed the Amendment Regulations with effect from 10 August 2023, which means that the previous rules which prevented employment agencies from supplying agency workers to provide strike cover will take effect again from that date. Employers facing industrial action will need to make sure that their contingency plans do not fall foul of the reinstated rules.

EU Settlement Scheme

The government has announced amendments to the EU Settlement Scheme (EUSS) after the High Court ruled in December last year that some aspects of the scheme were unlawful. The original scheme, which was set up to enable eligible EU citizens (and citizens of Switzerland, Norway, Iceland or Liechtenstein) and certain family members to remain in the UK after Brexit, provided for two types of status:

Settled status - which gives the holder a right to live in the UK permanently. To be eligible, the individual needs to satisfy certain continuous residence requirements; and
Pre-settled status – which currently gives the holder a right to stay in the UK for 5 years from the date pre-settled status was granted.

The changes announced last week provide that from September 2023 individuals with pre-settled status will automatically have that status extended by 2 years if they have not obtained settled status. This ensures that individuals will not lose their immigration status if they do not apply to switch from pre-settled status to settled status in the original five-year period. The Home Office intends to automate this process and notify individuals of the extension directly.

The Home Office has confirmed that it also intends to take steps to automatically convert as many individuals as possible from pre-settled status to settled status (once they become eligible for such status), without the need for the individual to make an application. To enable this to happen, automated checks will be carried out from 2024 to establish whether the individual has met the continuous residence requirements.

Changes to visa fees and charges

The government recently announced significant increases to visa fees. The most significant increase is to the Immigration Health Surcharge, which is payable by visa applicants and their dependants to fund their access to the NHS, but in practice is commonly reimbursed by employers. This will increase from £624 to £1,035 per year for over 18s. Application fees for work visas (such as visas under the Skilled Worker and Global Business Mobility routes) and visitor visas will rise by 15%. In addition, fees associated with other services and applications (including settlement, citizenship and the priority application service) will increase by at least 20%.

Sponsoring employers should watch this space for further details on these increases and when they will come into effect but it is clear at this stage that the cost of recruiting overseas nationals is going to markedly increase.

Our specialist team of business immigration lawyers (who are also employment law experts) advises clients on a wide range of immigration matters, including planning an immigration strategy for the recruitment of overseas nationals, potential immigration routes into the UK, obtaining and maintaining sponsor licences, compliance with ongoing sponsor duties and supporting applications for immigration permission.

News in brief

As well as all the above, other top news stories include:

The government has launched two consultations looking at ways to increase the use of occupational health (OH) services. The first focusses on the role tax incentives could play in boosting OH provision and the second looks at non-financial ways to encourage greater employer use of OH services. Both consultations close on 12 October 2023.

The government has issued its response to its 2019 consultation on mandatory ethnicity pay gap reporting. In line with the approach detailed in the ‘Inclusive Britain’ report issued in March last year, the government confirms that it will not be introducing mandatory ethnicity pay gap reporting. Instead the government’s focus remains on supporting voluntary reporting. For more on this topic, read the response here and check out our article exploring the guidance on voluntary ethnicity pay gap reporting issued by the government in April this year.

Update posted: 13 July 2023

Paternity leave reforms

The government has published its response to a 2019 consultation on options for reforming family-related leave and pay.

Within the response, the government has set out proposed statutory paternity leave reforms designed to provide more choice and flexibility around how and when that leave is taken. Under those reforms, eligible fathers and partners would be able to:

take their statutory paternity leave entitlement in two separate one-week blocks, rather than having to decide between taking one week only or taking two weeks of leave in one block (as is currently the case); and
take that leave at any time in the first year after birth or placement for adoption, rather than in the first eight weeks (as is currently the case).

There are also proposed changes to notification requirements for paternity leave. Whilst the notice of entitlement to take leave would still need to be given 15 weeks before birth, the father or partner would only be required to provide 28 days’ notice of the dates of their leave. The government stated that secondary legislation detailing these reforms will be introduced in due course.

Despite calls from some quarters for an increase to the amount of paternity leave, the proposed reforms do not include any increase to the amount of paternity leave eligible fathers and partners can take.

Although the consultation considered potential changes to other types of family-related leave and pay, the only type of leave covered by the latest proposed reforms is paternity leave. The response did not detail any proposed reforms to shared parental leave, despite the low uptake of this type of leave since its introduction in 2015.

Read the government’s response here >

Second jobs – considerations for employers

As the cost of living crisis continues, it is becoming more common for employees to take on ‘side hustles’ and second jobs to supplement their main income. Some employers who have in the past been opposed to their employees working elsewhere may want to be more flexible given the ongoing economic situation – particularly where they are unable to offer employees additional shifts or significant pay awards.

Compensation for belief discrimination

In a case that has returned to the headlines in recent weeks, Maya Forstater has been awarded over £100,000 in compensation and interest. Last year, an employment tribunal found that Ms Forstater had suffered direct discrimination because of her beliefs when her employer did not renew her fellowship and decided not to offer her an employment contract because she posted tweets containing comments based on her gender critical beliefs. She also succeeded in a victimisation complaint. It was these direct discrimination and victimisation complaints that the tribunal was considering in its remedy judgment.

The compensation award included £25,000 for injury to feelings. This was based on the tribunal’s conclusion that this case fell at the top of the middle Vento band, in part because the discriminatory acts showed that the respondents did not want to be associated with Ms Forstater and affected her status in the organisation and the wider professional world. In addition, the compensation included £2,000 for aggravated damages due to public statements made on the respondents’ behalf that the tribunal found amounted to oppressive or high-handed conduct in overstating judicial observations about Ms Forstater’s belief. The remainder of the compensation related to loss of earnings, loss of earning capacity and interest.

(Forstater v CGD Europe and others)

Dual employment

In a rare case looking at the question of dual employment, the EAT recently held that an individual could not simultaneously be an employee or worker of two employers in respect of the same work.

The claimant, a taxi driver, was registered with United Taxis and provided driving services for the company through one of its shareholders. Details of the claimant’s working hours and remuneration were arranged between the claimant and the shareholder, and it was the shareholder who paid the claimant for his driving services. The claimant was required to comply with United Taxis’ manual and byelaws. When the relationship broke down and the claimant wished to bring employment tribunal proceedings, he brought claims against United Taxis and the shareholder. At first instance, the tribunal held that the claimant was a worker of United Taxis and an employee of the shareholder. In doing so, it implied a contract between United Taxis and the claimant.

On appeal, the EAT held that it was not necessary to imply a contract between United Taxis and the claimant, and that the tribunal could not properly find the claimant was simultaneously a worker of United Taxis and an employee of the shareholder in respect of the same work (a concept sometimes referred to as ‘dual employment’). The EAT referred to dual employment as ‘problematic’, further calling into question whether and in what circumstances dual employment would be legally possible. On the facts of this case, the EAT held that the claimant was a worker of the shareholder and he was neither a worker nor employee of United Taxis.

(United Taxis Limited v Comolly and anor)

Pensions webinar for employers

Chris Brown (director) and Helen Cracknell (associate) from the Burges Salmon pensions team recently hosted a webinar exploring current pensions issues from the employer’s point of view. The webinar touched on a wide range of topics including defined benefit scheme funding, an update on The Pensions Regulator’s powers under the Pension Schemes Act 2021 and scheme end of life options.

To watch the webinar on-demand or read more about the topics covered, click the link below.

Watch the webinar here >

Update posted: 29 June 2023

Burges Salmon Employment team news

We are delighted to announce that Katherine Flower joined the firm’s Employment team as a new partner on Monday 26 June 2023. With 17 years’ experience, Katherine has a broad employment practice – advising FTSE-100 companies at board and C-Suite level on the employment aspects of complex corporate transactions and restructures, board level exits and appointments, and sensitive investigations and disputes. Katherine will be based across both Burges Salmon’s London and Bristol offices.

Proportionality assessments in belief cases

The EAT has provided helpful guidance on factors that are relevant to assessing whether action taken by an employer in response to an employee’s manifestation of a protected belief is proportionate.

In social media posts, the claimant (a pastoral administrator and work experience manager in a school) criticised relationship education in schools, including teaching of same sex marriage and gender fluidity. The claimant was dismissed for gross misconduct. She brought a claim alleging direct discrimination because of, or harassment relating to, her philosophical beliefs. Her beliefs included a lack of belief in gender fluidity. The tribunal dismissed her claim, concluding that the reason for the dismissal was not the claimant’s beliefs and was instead the school’s concern that someone reading the posts could consider that she held transphobic and homophobic views.

On appeal, the EAT noted that a tribunal must first assess whether the claimant’s actions were a manifestation of her philosophical belief by determining whether there was a “sufficiently close or direct nexus” between the belief and the actions. The EAT held that there was such a nexus in this case, so the claimant’s posts were a manifestation of her beliefs.

The EAT then noted that, where a respondent’s actions were taken because a claimant had manifested their belief in a way to which objection could justifiably be taken, the tribunal must carry out a proportionality assessment to determine whether the interference with the claimant’s right to freedom of religion and belief and freedom of expression can be objectively justified. The EAT detailed various factors relevant to that proportionality assessment, including the content and tone of the manifestation, the extent and nature of the intrusion on the rights of others and the nature of the employer’s business (in particular, whether there is potential impact on vulnerable people). Notwithstanding the guidance it provided, the EAT emphasised that cases of this type will always be fact-specific. The EAT remitted the case back to the tribunal, for it to determine on the facts of this case the reason why the claimant was dismissed and, if relevant, carry out a proportionality assessment.

(Higgs v Farmor’s School and another)

No harassment when employee unaware of the unwanted conduct

In a recent decision, the EAT held that a claim of harassment cannot be made out where the claimant was unaware of the unwanted conduct at the relevant time.

The claimant alleged that there was unwanted conduct (disparaging comments about the claimant) which violated his dignity. The claimant did not know about the comments at the time they were made and only became aware of them during a later investigation into allegations that he had bullied colleagues. The EAT concluded that, when assessing whether the unwanted conduct violated the claimant’s dignity, a key component is the claimant’s perception of the conduct. There can be no perception of conduct until the claimant is aware of that conduct. No harassment could therefore have occurred before the claimant became aware of the comments.

(Greasley-Adams v Royal Mail Group Limited)

Supporting your people through the cost of living crisis

With inflation remaining stubbornly high and the rise in interest rates putting pressure on mortgage payers, you may be considering how you can continue to support your employees during the cost of living crisis. Our short guide for employers suggests many ways to help employees (including no- and low-cost options) and picks out some of the potential legal ‘red flags’ to take account of. Alongside the guide, we chat through some of the support options that employers can consider in a video from our ‘A Conversation about…’ series. You can access our guide and video below.

Access our guide here >

Watch our video here >

Ethical veganism not a genuinely held belief

An employment tribunal recently held that a care home worker who was dismissed after refusing to be vaccinated against COVID-19 did not have a genuinely held belief in ethical veganism. She therefore did not have a protected philosophical belief and her Equality Act claims were dismissed.

Some of the reasons given by the claimant for her refusal to be vaccinated related to her vegan diet. She alleged discrimination on the grounds of philosophical belief. The respondent accepted that ethical veganism can in principle amount to a philosophical belief under the Equality Act (as had been held in a case from 2018).

The key question in this case was whether the claimant could show she genuinely held a belief in ethical veganism. The tribunal held that she did not, citing a number of factors including the fact that the claimant used some products that were not vegan and she failed to explain how she modified her life to follow her belief, other than via her diet and avoiding some non-vegan products. The case is a useful demonstration of the need to assess an employee’s belief in each case and consider how they modify their life to follow that belief.

(Owen v Willow Tower Opco)

Update posted: 15 June 2023

Original grievance report was not legally privileged

The Court of Session has upheld a decision from last year requiring a respondent to disclose the original version of a grievance report which was produced before legal advice was taken.

The final version of a grievance report incorporated changes suggested by external legal advisers and contained an annotation stating that the report had been amended following legal advice. In tribunal proceedings, the claimant applied for the original un-amended version of the report to be disclosed but the respondent resisted this application as it said that the original report was protected by legal privilege.

The Court of Session held that the original version was not privileged and so must be disclosed. The fact that comparison of the original and amended versions of the document might allow someone to speculate as to the substance of the legal advice did not mean the original version of the document was privileged. The Court of Session also concluded that any privilege in the document had been waived by the respondent by revealing the legal advice to the investigator and/or by stating on the amended report that it had been altered as a result of advice. The decision is an important reminder for employers of the need to very carefully consider the timing of legal advice and who such legal advice can be shared with.

(University of Dundee v Chakraborty)

Subconscious discrimination

The EAT has rejected an argument that a tribunal must always expressly consider the possibility of subconscious discrimination in direct discrimination cases.

The claimant, who is of Indian origin, brought direct race discrimination claims regarding (amongst other things) an appraisal grade and the failure to offer her a particular role after she was temporarily redeployed. The tribunal rejected her claims. The claimant appealed to the EAT, alleging that the tribunal had failed to consider the question of subconscious discrimination.

The EAT dismissed the appeal – whether a tribunal needs to expressly consider subconscious discrimination will vary depending on the particular facts and circumstances of the case. There would need to be evidence from which the tribunal could infer that the respondent relied on incorrect assumptions. In this case, the tribunal found that there were real, non-discriminatory reasons for the decisions made by the respondent and there was no suggestion that the decisions were based on stereotyping or assumptions based on the claimant’s Indian origins.

(Kohli v Department for International Trade)

New workplace standard on menopause

The BSI, the UK National Standards body, recently launched a new workplace standard to help organisations support employees experiencing menopause or menstruation. The new standard (BS 30416) aims to provide examples of good practice and details practical steps employers can consider, including a review of work design and workplace facilities.

Pay in lieu of holiday on termination

The EAT has held that an agreement regarding the calculation of holiday on termination cannot permit the employer to pay less than would be required under the Working Time Regulations 1998 (WTR).

The WTR set out a formula that an employer should use to calculate a worker’s annual leave entitlement where the worker leaves part way through the leave year. Where the worker has taken less leave than their entitlement for that part year, the employer must pay them in lieu of that untaken leave using the usual holiday pay rules set out within the WTR. Generally speaking, the employer should apply these default rules to calculate the worker’s entitlement on termination but the WTR includes an exception allowing the employer and worker (or their union) to agree a different sum to be paid on termination. In this case, the claimant’s contract provided for a lower rate of pay for holiday outstanding on termination.

The EAT held that an agreement between an employer and worker (or their union) cannot provide for a calculation of holiday pay on termination which would mean the worker is paid less than the usual amount they would be entitled to under the WTR. The claimant’s contractual term was therefore not effective.

(Connor v Chief Constable of the South Yorkshire Police)

Update posted: 1 June 2023

Managing difficult long-term absence issues - panel event on 4 July 2023

Managing long-term absence is a notoriously difficult area, particularly where there are mental health issues to navigate. If managing long-term absence is an area that you are grappling with, why not check out our in-person panel event on Tuesday 4 July 2023 at 5pm.

We will start with a quick run through of key considerations when managing long-term absence. Our panel will then discuss how to approach some of the most common issues which cross our desk in this area, and the last part of the session will be reserved for you to share experiences and practical tips and ask the panel any remaining questions you might have. For further details on topics we will be covering and to register, follow the link below.

New statutory rights for carers and parents

Three government-backed Private Members’ Bills setting out new protections for carers and parents were passed into law last week. Eligible parents and carers will benefit from the following new protections, once the new laws are in force:

Carer’s leave - one week’s unpaid leave per year for employees who are providing or arranging care for dependants with long-term care needs.

Neonatal care leave and pay – up to 12 weeks’ paid leave for parents whose babies require neonatal care after birth. This will be in addition to any entitlement to other types of family-related leave, such as maternity or paternity leave.

Protection from redundancy for parents – a planned extension of the requirement to offer suitable alternative vacancies to a wider category of workers who are at risk of redundancy. Currently only applicable whilst an employee is on maternity, adoption or shared parental leave, the intention is for this requirement to be extended to cover pregnant employees and parents who have recently returned from family-related leave.

The full details of these entitlements (including who will be eligible for each) will be set out in secondary legislation. It is not yet known when these entitlements will come into effect but as an indication, when discussing neonatal care rights, the government estimated that those rights would come into effect in April 2025. This timeframe took into account the time required for secondary legislation, publication of guidance for employers and payroll providers and changes to HMRC IT systems. We will keep you posted on key developments on these new entitlements.

FCA consultation affecting smaller banks and building societies

The FCA is consulting on plans to lift some of the regulatory burden on smaller banks and building societies. In his latest blog post, James Green (a director at Burges Salmon) takes a look at the proposed changes to the remuneration rules.

Read James’ blog post here >

Minimum service levels during strikes

The House of Commons last week rejected amendments proposed by the House of Lords to draft legislation on minimum service levels in certain public services during industrial action. The rejected amendments include an amendment to limit the application of the legislation to England only and removal of the provisions which would enable an employer to claim against a trade union for failure to take reasonable steps to ensure workers in receipt of work notices do not take part in the strike. Given the different positions taken by the two Houses, it remains to be seen how this Bill will now progress

ICO guidance on subject access requests

The Information Commissioner’s Office (ICO) last week published new guidance for employers on responding to subject access requests. The guidance is wide-ranging and is set out in a question and answer format, with practical examples included. It covers topics such as when an employer can withhold information and how to handle a request for CCTV footage that contains images of other people.

We regularly support clients with their responses to subject access requests - we use digital solutions (to reduce costs and time) and advise on any strategic implications of the request. For further information on our subject access request service, please get in touch with Ellen Goodland or your usual Burges Salmon contact.

Read the guidance here >

New pensions triage tool

The Burges Salmon pensions team recently launched an important addition to its award-winning pensions triage tools. The new tool, which is free to access online by request, is designed to assist international companies on a broad range of UK pensions issues, including:

new regulatory powers;
scheme funding;
buy out and de-risking; and
notifiable events.

Employers will be able to use the interactive guide to understand the possible implications in connection with UK pensions for a wide range of events, including M&A activity, the payments of dividends and restructuring.

Post-Brexit employment law reforms

Last week, the government announced a change of approach to EU-retained law and released details of a package of proposed post-Brexit reforms to employment law. The proposals include a new limit on non-compete clauses of three months and changes to annual leave and TUPE consultation.

In our latest update, we take a look at the proposed reforms and what they might mean for employers.

Read our update here >

Save the date - absence management panel event on 4 July 2023

Minimum service levels during strikes

Earlier this year, the government introduced new draft legislation aiming to ensure minimum service levels (MSLs) are maintained in certain public services during industrial action. That draft legislation has now been reviewed by the House of Lords and has been subject to some significant amendments.

These amendments include:

a new provision making it clear that a failure by a worker to comply with a work notice (a notice requiring them not to take part in a strike in order to meet a MSL) is not a breach of contract or lawful grounds for dismissal;
removal of the provisions which enabled an employer to claim against a trade union for failure to take reasonable steps to ensure workers in receipt of work notices do not take part in the strike; and
an amendment to limit the application of the Bill to England only.

These amendments would, if approved in the House of Commons, significantly alter the impact of MSLs and an employer’s ability to enforce them. Given the differences between the original Bill and the amended version approved by the House of Lords, it remains to be seen how this Bill will now progress as it returns to the House of Commons for further debate.

Protection for workers’ tips

A government-backed Private Member’s Bill which provides new protections governing workers’ tips was passed earlier this month. Once the new laws are in force, it will be unlawful for an employer to withhold tips, gratuities and service charges from workers. A new statutory code of practice will also be introduced providing guidance on the fair distribution of tips. Alongside this, employers will be required to maintain written policies detailing how tips are allocated.

It is expected that these changes will come into force in 2024. Employers in the hospitality and other affected sectors will need to ensure that their practices are in line with the new legislation and the code of practice (once it is published).

Unfair dismissal where employer did not properly consider furlough

A redundancy dismissal was unfair where the employer had failed to properly consider the possibility of furloughing the claimant.

The claimant was a live-in carer who was made redundant in the early stages of the pandemic as her employer did not have any live-in care work that it could offer to her. The tribunal held that the claimant’s dismissal was unfair because the employer had not considered whether or not the claimant could have been furloughed for a period of time to see if there was any change to the availability of live-in care work.

The EAT upheld the tribunal’s finding and emphasised that it was the failure to properly consider the possibility of furlough that made the dismissal unfair, which does not go as far as requiring an employer to furlough an employee in these circumstances. Although furlough is no longer a live issue, the EAT’s findings provide a useful reminder of the importance of fully exploring ways of avoiding redundancy.

(Lovingangels Care Ltd v Mhindurwa)

Artificial intelligence oversight in the workplace

Employment senior associate Eilidh Wood was pleased to be quoted in an interesting report published by LexisNexis UK Market Tracker on AI oversight in the workplace. In particular, Eilidh commented on how the existing legal framework (including unfair dismissal protections) might be applied where AI is used to make or inform a decision to dismiss an employee.

Access the report here >

Wellbeing washing

In her latest blog post, Pip Galland (senior associate at Burges Salmon) looks at the rise of allegations of ‘wellbeing washing’ - a term coined to describe employers who make external displays of support for mental health initiatives whilst their internal wellbeing programmes are lacking. Pip identifies three ways employers can deliver a successful wellbeing programme and avoid such allegations by ensuring employee wellbeing sits at the heart of their culture.

Read Pip’s blog post here >

Update posted: 4 May 2023

Ethnicity pay gap reporting guidance

As we reported in the last edition of Edit, the government has issued new guidance for employers to give them the tools to identify, analyse and tackle ethnicity pay gaps. Although it is not mandatory, with ESG strategies high on the corporate agenda, many employers are voluntarily reporting on their ethnicity pay gap data and the steps they are taking to address any disparities. The new guidance should help them and other employers who are looking to set up ethnicity pay gap analysis moving forwards.

In our latest update, we take a closer look at the new guidance and explore four focus areas for employers to consider when implementing ethnicity pay gap reporting.

Read our update here >

Business immigration changes

New guidance for sponsors, which came into force on 30 March 2023, expands on the list of changes to a sponsored employee’s circumstances that sponsors must report to the Home Office. That list now includes where a sponsored employee has moved, or will be moving, to a hybrid working pattern, or where they are working remotely, or at a different location not previously declared to the Home Office, on a permanent or full-time basis. Given the prevalence of hybrid and remote working, this represents a significant expansion of a sponsor’s obligations.

The last month has also seen some changes to the Immigration Rules. The most notable change for employers is the increase in the minimum salary thresholds for both the Skilled Worker and Global Business Mobility (Senior or Specialist Worker) routes, but there have been a number of other changes including amendments to the Youth Mobility Scheme which mean that New Zealand nationals can now apply for a three year visa up to the age of 35. We have updated our business immigration guide for employers to reflect these changes.

Read our guide here >

Acas guidance on stress at work

Acas has published new guidance with advice for employers on how to manage stress at work. The guidance follows reports from a YouGov poll from earlier this year that one in three British workers believe that their organisation is not effective at managing work-related stress.

The guidance includes advice on how employers can spot signs of stress, communicate effectively with employees (including signposting them to the internal and external support available) and steps they can take to prevent work-related stress.

Read the guidance here >

Health and safety risk assessments

An employer was recently fined £3.5 million for health and safety failures after an epileptic employee died following a fall at work.

Mr Gunn, who worked at a Morrisons supermarket, fell from stairs during a seizure and later died as a result of his injuries. It is believed that Mr Gunn was using the stairs to access his locker, which was on the first floor despite requests from Mr Gunn’s mother for it to be moved to the ground floor to minimise his use of the stairs. The jury in the Crown Court found Morrisons guilty of several health and safety failures, including failure to carry out a suitable and sufficient assessment of the risks to employees and to review the risk assessment. The judge noted that Morrisons had failed to treat Mr Gunn as an individual and make appropriate changes.

HR and People teams will often be the first to know about an employee’s health condition, particularly where an employee discloses their condition when they join an organisation. This case underlines the importance of ensuring that a health and safety risk assessment is carried out for the employee, and that appropriate safety measures are put in place (and kept under review) to protect the health and safety of that employee.

Stop Press

The so-called Tipping Bill or the Employment (Allocation of Tips) Act 2023 to give it its full title received Royal Assent on 3 May. This Act, which comes into force in 2024, will see all tips go to workers by making it unlawful for employers to hold back service charges. An accompanying statutory code of practice will provide additional guidance.

AI is grabbing the headlines right now…but what does this mean for HR?

AI has continued to hit the headlines in recent weeks and the government recently published its long-awaited White Paper, ‘A pro-innovation approach to AI’, outlining its proposed approach to regulating AI moving forwards. Employers and unions are increasingly grappling with the impact of AI on workforces, with the TUC recently holding a conference specifically dedicated to the implications of AI in the workplace.

In her latest blog post, Kate Redshaw, head of practice development at Burges Salmon, explores these developments and considers how HR and People leaders could help their organisations unlock the potential of AI in a positive way.

Read Kate’s blog post here >

SMCR – a spring clean?

The Financial Conduct Authority and Prudential Regulation Authority recently published a joint Discussion Paper to kick off a review of the Senior Managers and Certification Regime (SMCR). James Green, a director at Burges Salmon, has written a blog post looking at the paper and a related call for evidence issued by the Treasury. James highlights some of the questions in the paper that are focussed on ways to improve the effectiveness, scope and proportionality of SMCR and considers the regulators’ likely direction of travel.

Read James’ blog post here >

Update posted: 20 April 2023

AI White Paper

As artificial intelligence (AI) is taking an increasingly prominent role in our everyday lives, many key stakeholders are becoming increasingly nervous about the potential risks that AI poses to society and the implications of AI in the workplace. Against a background of calls for additional regulation in this area, the government recently published its long-awaited White Paper, ‘A pro-innovation approach to AI’. The government is not proposing, at this stage, to introduce new legislation specifically to deal with the use of AI. Instead, it intends to rely on existing regulators – such as the Health and Safety Executive, Equality and Human Rights Commission and the ICO – to move forward protections in this area.

In our latest update, we take a closer look at the White Paper and what it has in store for employers.

Read our update here >

Ethnicity pay gap reporting guidance

Last year, in a policy paper titled “Inclusive Britain”, the government confirmed that it did not intend to introduce mandatory ethnicity pay gap reporting and that instead it would support employers with voluntary reporting. As part of that support, it has this week issued guidance to give employers the tools to identify, analyse and tackle ethnicity pay gaps.

The guidance includes advice on:

collecting ethnicity pay data for employees;
recommended calculations;
reporting on the findings; and
further analysis that may be needed to understand the underlying causes of any disparities.

Although ethnicity pay gap reporting is not mandatory, many employers are opting, as part of their diversity and inclusion initiatives, to voluntarily report on their ethnicity pay gap data and the steps they are taking to address any disparities. This information is often reported alongside the employer’s gender pay gap information. Much of the government’s new guidance (particularly the calculation methods) mirrors the guidance for gender pay gap reporting. However, the guidance acknowledges that ethnicity pay gap reporting is more complex given the greater number of ethnic groups and the need, in some cases, to aggregate data for some ethnic groups to protect confidentiality of individual employees whilst ensuring the results are reliable.

Read the guidance here >

Positive action in the workplace

The government has also published guidance on positive action in the workplace, a further measure promised in the Inclusive Britain report. Positive action is where an employer treats those with a protected characteristic more favourably than others, with an aim of (amongst other things) enabling or encouraging those with the protected characteristic to overcome or minimise a disadvantage or to take part in a particular activity. The Equality Act 2010 contains voluntary provisions allowing for positive action in certain circumstances, including where a group is underrepresented or where they may suffer disadvantage connected to the protected characteristic. One of the core requirements for positive action is that it must be proportionate.

The guidance is designed to help employers understand how they can utilise the positive action provisions to remove barriers to diversity in their workforce and enable equality of opportunity. The guidance explains the different positive action provisions set out within the Equality Act, including those relating specifically to recruitment and promotion. It also provides some advice on types of action that employers might consider and how an employer can assess whether its proposed action is proportionate.

Read the guidance here >

Right to work checks

We have recently updated our employer’s guide to right to work checks to reflect updated guidance from the Home Office on checks performed by Identity Service Providers (IDSPs). In particular, the Home Office’s guidance looks at when checks carried out by IDSPs can establish a ‘statutory excuse’ for the employer against a civil penalty in the event that an employee is found to be working illegally. Check out our updated guide below for more information.

Read the guide here >

Reasonable adjustments for mental health

Acas has published new guidance on reasonable adjustments for mental health conditions. The guidance, which provides practical tips for both employers and employees, covers a range of topics including:

Examples of reasonable adjustments for mental health;
Responding to employee requests for reasonable adjustments for mental health;
Managing employees when those reasonable adjustments are in place; and
Reviewing policies with mental health in mind.

Check out the guidance here >

Update posted: 5 April 2023

Whistleblowing framework review

Last week, the government launched a review into the whistleblowing framework – the legal protections in place for those who blow the whistle on workplace wrongdoing (for example, raising concerns about criminal offences or health and safety dangers). The government intends to gather evidence and views from whistleblowers, key charities, employers and regulators in order to understand how effectively the existing framework enables workers to blow the whistle, protects those that do from detriment and dismissal, and supports wider cultural change.

The government identified the following five core areas it wants to explore in this review:

how the framework has facilitated disclosures;
how the framework has protected workers;
how accessible whistleblowing information is;
the wider benefits and impacts of the framework; and
what best practice looks like in responding to disclosures.

The review is due to conclude by autumn 2023, after which the government will consider how to develop and improve the framework.

Kate Redshaw, head of practice development at Burges Salmon, has written a blog post exploring some of the areas that the review might touch on. In particular, Kate considers whether the scope of the requirement for the whistleblowing to be “in the public interest” is too broad and extends protection to workers airing private employment disputes.

Read Kate’s blog post here >

Statutory pay rates

New rates of statutory sick pay and statutory pay for various types of family-related leave come into force this week in England, Wales and Scotland. The new rates are:

Statutory sick pay – £109.40 per week (from 6 April 2023); and
Statutory maternity, adoption, shared parental and paternity pay - £172.48 per week (from 2 April 2023). The same rate of pay will apply to statutory parental bereavement pay.

Guide to UK employment law

Do you have colleagues who are new to HR or colleagues in other jurisdictions who would like an overview of UK employment law rights - if you do, why not send them our recently updated guide to UK employment law? In the guide, we explore the key stages of a UK employment relationship and explain some of the main risks to be aware of under UK law, when they might arise, and some of the practical issues involved in addressing them.

We regularly advise businesses who are setting up in the UK or expanding their UK operations and we work closely with in-house lawyers and HR specialists from other jurisdictions to help them navigate UK employment law protections. If we can help your business with any queries like this, please do get in touch using the details below.

Access the guide here >

Workplace wellbeing

With the number of fit notes issued in the UK hitting an all-time high, the steps employers take to support their employees’ wellness and wellbeing are more important than ever. In her latest blog post Menna Chmielewski (an associate at Burges Salmon) explores whether wellbeing initiatives are really delivering what’s needed in the post-pandemic workplace.

Read Menna’s blog post here >

Benefits propositions supporting different faiths in the workplace

Employment partner Luke Bowery and pensions partner Richard Knight were pleased to be quoted in an interesting article by Nick Martindale at Employee Benefits on how an employer’s benefits proposition can support different faiths in the workplace. Luke commented on issues relating to dress codes and arrangements for social events and Richard commented on the benefits of pension providers offering appropriate investment choices for employees of different faiths.

Read the article here >

Injury to feelings awards increased

The injury to feelings compensation awards that tribunals can make in discrimination cases are due to increase from tomorrow. For claims issued on or after 6 April 2023, the new bands (known as “Vento bands”) are:

for less serious cases, a lower band of £1,100 to £11,200;
for cases that do not merit an award in the upper band, a middle band of £11,200 to £33,700; and
for the most serious cases, an upper band of £33,700 to £56,200.

In the most exceptional cases, an award that exceeds £56,200 could be made.

Update posted: 23 March 2023

Diversity and inclusion newsletter

Exciting news – we will soon be launching a Diversity and Inclusion quarterly newsletter. We know that investing in D&I is a key priority for employers and it forms a core part of ESG strategies. In our newsletter, we will be sharing market insights and examples of best practice from a range of industries and we will take a look at legal developments relevant to D&I. Keep your eyes peeled for the first edition, coming out soon.

Learn more about Burges Salmon's approach to D&I here >

Compensation limits increased

This year’s increases to certain compensation and statutory payments were announced last week. Two key new limits are:

the new limit on a week's pay for the purpose of calculating statutory redundancy payments and basic awards - £643 (up from £571); and
the new limit on a compensatory award for unfair dismissal - £105,707 (up from £93,878).

The new rates will apply to dismissals that take place on or after 6 April 2023.

Spring budget

In last week’s budget, the Chancellor announced a range of reforms designed to tackle labour supply issues by removing barriers that stop some people from working. These reforms include:

Abolition of the pension lifetime allowance and changes to a range of other pension allowances and caps, including an increase to the annual allowance from £40,000 to £60,000 from 6 April 2023. These changes are aimed at encouraging older workers to remain in work as the government is concerned that the current allowances disincentive individuals from remaining in work;
Extension of free childcare hours for working parents - from April 2024 to include parents of 2-year old children and from September 2024 to include parents of children aged 9 months. The number of free hours parents will be able to access will increase over time – eligible parents will initially be entitled to 15 hours per week for 38 weeks of the year, with this entitlement increasing to 30 hours a week for 38 weeks of the year from September 2025;
The introduction of a new kind of apprenticeship programme, called “Returnerships”, targeted at the over 50s who want to return to work; and
A range of measures designed to support people with long-term health conditions, including a new voluntary programme called Universal Support which will aim to find appropriate jobs for individuals with disabilities and put in place the support they need.

Read the government’s labour market measures factsheet here >

Redundancy protections after maternity leave

As the Protection From Redundancy (Pregnancy and Family Leave) Bill progresses through the House of Lords, Menna Chmielewski (an associate in the employment team) has written a blog post looking at the proposed new rights for pregnant employees and employees returning after a period of family leave to be offered suitable alternative employment in redundancy situations. As well as considering the proposed changes, Menna identifies some key practical takeaways for employers.

Read Menna’s blog post here >

Employee’s aggressive conduct did not arise from disability

The EAT has upheld a finding that a claimant’s aggressive conduct was not something that arose from his disability.

The claimant, who has dyslexia, symptoms of Asperger’s Syndrome, neurodiversity and left-sided hearing loss, became involved in difficult interactions with co-workers including occasions in which he became “loud and angry“. He was the subject of disciplinary proceedings on two occasions. The claimant brought a claim alleging, amongst other things, that he had been treated unfavourably because of something arising from his disability.

Having analysed the medical evidence and the claimant’s own assessment of the impact of his health conditions, the tribunal found that the claimant’s behaviour during those interactions was not the consequence of his disability. Instead, the tribunal found that his behaviour resulted from him having a short temper and resenting being told what to do. This case is a useful reminder of how fact-specific claims of this type are and the need for tribunals to assess whether the conduct arises from the disability, before considering whether that conduct was the reason for the alleged unfavourable treatment.

(McQueen v General Optical Council)

Supporting your employees during the cost of living crisis

With the cost of living crisis continuing to hit the headlines and remaining high on the agenda for employers, why not check out our video and employer’s guide on supporting employees through the cost of living crisis. Topics include one-off cost of living payments, adjusting the timing of pay reviews and the pros and cons of permitting an employee to take on a second job.

Watch video >

View guide >

Update posted: 9 March 2023

Four-day working week trial

The UK’s six-month pilot of a four-day working week for five days’ pay has recently come to a close, with 92% of participating employers indicating that they intend to keep this working pattern for the time being.

In this article, Kate Redshaw, head of practice development, considers the outcome of the trial and asks whether the need for increased time efficiency could come at a cost. While there are certainly potential benefits to the shorter week, such as reduced burnout and a better work-life balance for staff, there are also practical considerations for employers to take into account. Kate explores these practical considerations in the article, which was first published by International Employment Lawyer.

Read Kate’s article here >

Webinar on-demand: How to manage restructuring and redundancy in 2023

Employment partner Luke Bowery recently teamed up with leading online HR resource XpertHR to deliver a webinar on managing restructuring and redundancy in 2023. In the webinar, now available to watch on demand, Luke gives an overview of the redundancy process, talks through a restructuring case study and considers some tricky scenarios that can arise for employers when making redundancies.

You can access the webinar, even if you are not a subscriber to XpertHR, for the next ten days – after that access will be restricted to subscribers only.

Watch the webinar here >

Updated gender pay gap reporting guidance published

Last week, the Government Equalities Office (GEO) published new guidance on gender pay gap reporting. The guidance, which is an important reference point for employers who are required to report on their gender pay gap information (those with 250 or more employees), has been updated to make it clearer and simpler, to remove some duplication and to locate the guidance all in one place. The GEO has stated that there are no changes to factual content and the way for organisations to work out and report their gender pay gap information has not changed.

Access the updated guidance here >

Without prejudice letter contained effective dismissal

The EAT has upheld a tribunal’s finding that a without prejudice letter, which erroneously referred to termination by “mutual agreement”, terminated the claimant’s employment.

After a period of long term sickness absence and an unsuccessful application for income protection, the claimant was informed by the respondent’s HR manager that the respondent was considering terminating his employment. The possibility of a settlement agreement was raised during that conversation but no agreement was reached. A few weeks later, the respondent sent the claimant a letter headed “without prejudice” that:

stated that his employment would terminate by “mutual agreement”;
included the claimant’s last date of employment (7 February) and details of the pay he would receive up to that date, as well as details of the pay in lieu of holiday and notice that he would receive; and
offered the claimant an ex gratia payment, subject to him signing the enclosed settlement agreement.

The tribunal held that this letter, read as a whole, amounted to an effective dismissal letter – the letter clearly communicated the termination, despite the “without prejudice” heading and the erroneous reference to his employment terminating by “mutual agreement”. The settlement offer related only to the ex gratia payment and could be separated out from the part of the letter that dealt with termination. The claimant’s employment was therefore validly terminated on 7 February and that was the date from which the time period for bringing a tribunal claim began. The EAT upheld these findings but noted that, where there are settlement discussions ongoing, it may be safer to separate out the open and without prejudice aspects into separate correspondence.

The case is a useful reminder for employers of the importance of ensuring that a letter of termination clearly and unambiguously communicates the employee’s dismissal and that any without prejudice communications are carefully drafted and separated out wherever possible.

(Meaker v Cyxtera Technology UK Limited)

Update posted: 23 February 2023

Webinar on demand: Hot Topics in Employment Law 2023

Earlier this month, we presented our popular webinar ‘Hot Topics in Employment Law 2023’ designed to bring you up to date on the ‘need to know’ employment law changes, cases and current themes and to help you plan for the year ahead.

An on-demand recording of the webinar is now available. For further details on the topics covered in the webinar and to access the recording, follow the link below.

Access the recording here >

Four day week trial

The results are in following a large-scale trial of a four day working week, which saw employees receive 100% of their usual pay whilst working the shortened week. The trial has been reported as a resounding success, with 56 out of the 61 participating companies deciding to continue with the four day week and 18 of those companies deciding to make the change permanent. Those participating reported various benefits, including a boost for recruitment and retention, fewer sick days and improved mental health of employees.

In this blog post Kate Redshaw, head of practice development, shares some thoughts on the four day week and the need for employers to protect time for creativity and investment in colleagues.

Read Kate's blog post here >

New anti-competition guidance for employers

The Competition and Markets Authority recently published a new short guide for employers detailing how they can comply with competition law when hiring employees. Shachi Nathdwarawala, a senior associate in the Burges Salmon competition team, takes a look at this new guide in her latest blog post.

Read Shachi’s blog post here >

EU Settlement Scheme

The Home Office has announced that it is not going to appeal a recent High Court judgment which held that aspects of the EU Settlement Scheme are unlawful. In its statement last week, the Home Office said that it is working to implement the judgment as swiftly as possible.

The EU Settlement Scheme was set up to enable eligible EU citizens (and citizens of Switzerland, Norway, Iceland or Liechtenstein) and certain family members to remain in the UK after Brexit. Under the scheme, those who started living in the UK by 31 December 2020 could apply for one of two types of status:

those who had lived in the UK for a continuous 5-year period were able to apply for ‘settled status’ (which gives the holder a right to live in the UK permanently); and
those with less than 5 years in the UK were able to apply for ‘pre-settled status’ (which gives the holder a right to stay in the UK for 5 years from the date pre-settled status was granted). Those wishing to stay longer must apply for settled status or other immigration permission before the expiry of their pre-settled status.

The Independent Monitoring Authority for the Citizens’ Rights Agreements argued that the scheme was unlawful as anyone with pre-settled status who fails to apply for settled status will automatically lose their right of residence in the UK. This, they argued, was not compatible with the terms of the EU withdrawal agreement. The High Court agreed – the terms of the withdrawal agreement do not allow for an individual to lose their residence right because they failed to make a second application under the scheme.

Whilst we await further news from the Home Office on what changes it intends to make to the scheme to implement the judgment, those with pre-settled status who wish to stay in the UK should continue to apply for settled status (or other immigration permission) where they are eligible to do so.

Redundancy and age discrimination

The EAT has considered a case relating to alleged age discrimination resulting from an expedited redundancy dismissal.

The claimant was dismissed by his employer by reason of redundancy. The employer did not comply with its usual processes and hurried through the dismissal process to avoid the claimant receiving an enhanced redundancy payment, which he would have been entitled to if he reached 55 years of age before his dismissal.

The tribunal found that the claimant’s dismissal was unfair. However, it dismissed the claimant’s age discrimination claim holding that the dismissal was a proportionate means of achieving a legitimate aim. The aim identified by the tribunal was the aim of saving costs, particularly given the employer’s regulator had expressed disapproval of windfall pension enhancements. The tribunal acknowledged that this was a “costs plus” argument. It also noted that the funds for the payment would have come from the public purse as the employer, a social housing landlord, was a public sector employer.

The EAT held that the tribunal had not:

a) properly analysed whether the claimant’s dismissal in breach of its own procedures was a proportionate means of achieving a legitimate aim; and

b) properly considered whether or not a previous case (Woodcock) which rejected an age discrimination claim resulting from an expedited dismissal was applicable, bearing in mind the fact that the employee in Woodcock could have been dismissed fairly before reaching the relevant age.

The EAT allowed the appeal and remitted the case to a different tribunal for it to be looked at again.

(Cook v Gentoo Group Limited)

Update posted: 9 February 2023

Webinar: How to manage restructuring and redundancy in 2023

The economic crisis is forcing businesses to make difficult decisions as they grapple with high inflation, a deflated economy and an increasing financial burden. Whilst some employers may need to look at redundancy programmes as a way to reduce costs, others, particularly those in sectors where talent is currently hard to find and retain, may hope to minimise or avoid compulsory redundancies by restructuring or looking for alternative cost-saving measures. Whatever approach is adopted, it is important that you plan ahead and follow a fair and legally compliant process.

To help you navigate those challenges, we are joining up with leading online HR resource XpertHR for a webinar on managing restructuring and redundancy in 2023. Led by employment partner, Luke Bowery, who has extensive experience in this area, this webinar will offer lots of practical advice. Luke will start by giving an overview of the redundancy process. He will then talk you through a restructuring case study, before finishing with a look at some tricky scenarios that can arise for employers when making redundancies. There will also be an opportunity to ask questions at the end.

Registration details for the webinar, which is on 23 February, and more details on what we are covering can be found by following the link below. The webinar is open to all - you do not need to be an XpertHR subscriber to attend.

New right to request predictable working pattern

In a move designed to combat the ‘one-sided flexibility’ experienced by zero hours workers, the government has backed a Private Member’s Bill that would give certain workers the right to request a predictable working pattern.

Under the proposed reforms, workers who have an unpredictable working pattern would be able to apply for a change to their terms and conditions of employment to get a predictable working pattern. Agency workers and workers on a fixed term contract of 12 months or less would also be eligible to make such applications. Employers would be required to deal with applications in a reasonable manner and would only be able to reject an application on one or more specific grounds, including where there is insufficient work during the periods of time the worker wishes to work. Eligible workers would be allowed to make a maximum of two applications during any period of 12 months.

Further details (including the length of service a worker would need to have in order to be eligible to make a request) are expected to be included in regulations to be published in due course. If passed, the changes will apply in England, Wales and Scotland.

Read the government’s press release here >

National Minimum Wage for term-time worker

The EAT has held that a term-time worker’s basic hours for National Minimum Wage (NMW) purposes should be determined by reference to her contract of employment and not by the hours she actually worked.

The claimant was a part-time learning support assistant in a school and was paid a salary in equal monthly instalments. Under her employment contract, she worked 21 hours a week during term-time and was entitled to “the usual school holidays as holidays with pay”. She brought a claim alleging that she had been paid less than the NMW because she argued those paid school holidays should have counted for NMW purposes, so that her basic hours were 21 hours over 52 weeks.

The EAT held that the tribunal should not have assumed that only the hours the claimant in fact worked (plus her statutory holiday entitlement) counted as basic hours. It noted that what constitutes basic hours for NMW purposes for a salaried hours worker can, depending on the terms of the contract, include certain non-working hours including notional hours attributable to periods of contractual paid holiday. The EAT has remitted the case to a different tribunal to determine the claimant’s basic hours based on her contract of employment.

Although the outcome of the case will turn on interpretation of the claimant’s particular employment contract, it is a further example (following last year’s Harpur Trust v Brazel case and the ongoing government consultation on holiday entitlement for part-year and irregular hours workers) of the legal complexities that can sometimes arise where an employee has an atypical working pattern. It also underlines the importance of careful drafting in employment contracts for these categories of employee.

(Lloyd v Elmhurst School Limited)

Video: A Conversation about…ways to support your employees during the cost of living crisis

With the cost of living crisis high on the agenda for employers, in our latest video Luke Bowery (partner) and Kate Redshaw (head of practice development) talk about various support options that employers could potentially consider. Topics include one-off cost of living payments, adjusting the timing of pay reviews and the pros and cons of permitting an employee to take on a second job.

In the video, we reference the guide we produced with options for how employers can support their employees through the cost of living crisis. You can access a copy of that guide below.

Watch video >

View guide >

Update posted: 26 January 2023

Industrial action – how can employers best prepare?

Although the latest figures show that UK inflation is slowing, the cost of living crisis continues to present a very real problem for employers. With many employers in the throes of, or about to commence, their annual pay negotiations, many trade unions are pushing hard to secure significant pay rises. Given businesses are grappling with their own financial pressures, this is creating real tension.

The government has responded to the ongoing strikes by introducing a number of measures and proposals. You can read about some of these steps in our updated guidance note, which also contains practical advice for employers facing industrial action (including suggested approaches to negotiations and contingency planning in the event that a strike should arise).

Read the guidance note here >

“Fire and rehire” code of practice consultation

The government has this week opened a consultation on a draft statutory code of practice on dismissal and re-engagement (often referred to as “fire and rehire”).

The draft code sets out detailed steps that an employer should follow in the event that it is contemplating changes to terms and conditions and envisages it might dismiss employees if they do not agree to the proposed changes. Some of the key points detailed within the draft code are:

the employer should consult with employees and/or their representatives about the proposed changes;
consultation should be meaningful, conducted in good faith and aim to arrive at an agreed resolution;
a threat of dismissal should not be used as a negotiating tactic;
the employer should share as much information as is reasonably possible to enable employees and their representatives to understand the need for the changes and be able to make counter proposals; and
“fire and rehire” should be a last resort and only considered where all reasonable alternatives have been fully explored.

Once the code is issued, Tribunals will be able to apply an uplift of up to 25% of compensation in cases where an employer has unreasonably failed to comply with it. Whilst many employers contemplating dismissal and re-engagement would follow similar steps as a matter of best practice, the draft code (if it were implemented in its current form) and the accompanying compensation uplift powers would represent a potentially significant shift.

The consultation closes on 18 April 2023.

Access the consultation here >

Holiday entitlement consultation

Continuing the consultation theme, the government has launched a consultation on the calculation of holiday entitlement for part-year and irregular hours workers.

On launching the consultation, the government acknowledged a disparity created by the Harpur Trust v Brazel Supreme Court case published last year. As a result of that case, part-year workers are entitled to a disproportionate amount of paid holiday relative to their total working hours, compared to workers with fixed working patterns across the year (including other part-time workers).

To address this disparity, the government intends to introduce a new 52 week reference period to calculate the holiday entitlement of part-year and irregular hours workers based on the hours they worked in the previous leave year. The total hours worked in that previous leave year would be multiplied by 12.07% to arrive at the worker’s holiday entitlement for the new leave year. A similar mechanism (based on monthly hours) would be applied to workers who have not yet worked a full year.

Although the core components of the proposed new reference period are detailed in the consultation, there are a number of unanswered questions as to how such a reference period would be incorporated into the Working Time Regulations and which workers would be subject to the new calculation mechanism. The consultation closes on 9 March 2023.

Access the consultation here >

Menopause in the workplace

The government has published its response to the Women and Equalities Committee’s report on menopause and the workplace. It has decided to accept some of the committee’s recommendations, including the introduction of a new menopause employment champion who will be appointed in due course and will report to DWP ministers at regular intervals.

However, some of the committee’s recommendations are not accepted. In particular, the government does not intend to:

work with a public sector employer to develop and pilot a ‘menopause leave’ policy;
create a new protected characteristic of menopause and a duty to make reasonable adjustments for menopausal employees; or
enact the dual discrimination provision in section 14 of the Equality Act (which is not currently in force), which protects against discrimination based on a combination of two relevant protected characteristics.

There are therefore no imminent changes planned to the employment rights of menopausal employees. Where employees’ working lives are impacted by their menopausal symptoms, they will continue to need to rely on existing legal protections and rights (including age, sex and disability discrimination protections and sick leave and pay entitlements).

Read the government’s response here >

Dismissal of employee on long term sickness absence

Last week, the EAT upheld a finding that a decision to dismiss an employee on long term sickness absence was objectively justified and did not therefore amount to disability discrimination.

The claimant suffered from anxiety and depression. In the three years leading up to his dismissal, he had been absent from work for a total of 245 days on 23 different occasions. The most recent of those occasions was an absence of around 7 months, which was ongoing at the time he was dismissed in December 2018.

The key issue for the tribunal to determine was whether or not the claimant’s dismissal could be objectively justified. The tribunal accepted that the employer had a legitimate aim of ensuring that staff were capable of demonstrating satisfactory attendance (which also comprised the aims of the maintenance of a fair, effective and transparent sickness management regime, and the efficient use of resources). In assessing whether or not the dismissal was a proportionate means of achieving that aim, the tribunal accepted that the claimant’s absence had an impact on the employer particularly on management time and morale in the claimant’s team. Taking other options into account and weighing up the discriminatory impact of the decision, the tribunal was entitled to find that dismissal was objectively justified.

The case underlines the importance of having a clear absence management policy in place and ensuring that any manager taking a decision under that policy carefully considers the impact of the employee’s absence on the business.

(McAllister v Commissioners for Her Majesty’s Revenue and Customs)

Video: A Conversation about…ways to support your employees during the cost of living crisis

In the video, we reference the guide we produced with options for how employers can support their employees through the cost of living crisis. You can access a copy of that guide below.

Watch video >

View guide >

Book now: Hot Topics in Employment Law webinar – 7 February 2023

The impact of the pandemic on our working lives may have reduced in 2022 but HR specialists hoping for quieter times may have been disappointed. 2022 was another busy year for HR and People teams, as employers grappled with the challenges we have identified above. Against this backdrop, we can also expect some changes to employment legislation in 2023 and, of course, the Employment Tribunals and higher courts have continued to be busy with a number of important decisions landing.

That’s a lot to keep on top of so do join our free Hot Topics in Employment Law webinar to make sure you’re in the know. During the one hour webinar, we will guide you through the need to know employment law changes from the last 12 months (including new cases and trending topics) and we look ahead at what 2023 has in store. Further detail on the topics we will be covering can be found on the registration page below.

Update posted: 12 January 2023

Book now: Hot Topics in Employment Law webinar – 7 February 2023

The impact of the pandemic on our working lives may have reduced in 2022 but HR specialists hoping for quieter times may have been disappointed. Rising inflation has left many employers grappling with how to best support their employees whilst facing challenging times themselves financially. This difficult background has, in turn, led to an increasing number of trade unions pushing hard for significant pay rises which is creating additional tensions for employers.

We can also expect some changes to employment legislation in 2023 and, of course, the Employment Tribunals and higher courts have continued to be busy with a number of important decisions landing.

That’s a lot to keep on top of so do join our free Hot Topics in Employment Law webinar to make sure you’re in the know. During the one hour webinar, we will guide you through the need to know employment law changes from the last 12 months (including new cases and trending topics) and we look ahead at what 2023 has in store. Further detail on the topics we will be covering can be found on the registration page below.

Video: Employment law themes for 2023

In our latest video, Adrian Martin (Head of Employment) gives his predictions for what this year might have in store for HR and in-house employment lawyers.

Watch here >

Minimum service levels during strikes

This week, the government has introduced new draft legislation which aims to ensure minimum service levels are maintained in certain public services during industrial action.

Under the draft bill, the Secretary of State is given broad powers to set minimum service levels for specified public services. For some services (fire, ambulance and rail services), the government intends to consult on the minimum service levels first. For a range of other services (including education and other health services), the government hopes that parties will reach a voluntary agreement on the level of service required although the Secretary of State will have the power to step in and set the level if necessary.

Where a minimum service level has been set, employers in that sector would then issue ‘work notices’ to relevant unions identifying the staff who are required to work in order to meet the level set. If the trade union fails to take reasonable steps to ensure that staff identified on the work notice do not take part in the strike, it could face claims from the employer. Workers identified on those work notices would also lose certain unfair dismissal protections if the reason for their dismissal is that they took part in the strike.

The bill has been met with significant opposition from other political parties and trade unions. Given the fierce debate on this topic, it is unclear how smoothly the bill will progress through the parliamentary approval process and whether the government will need to make changes to the draft bill in order for it to be approved. We will keep you posted on further developments in this fast moving area.

EU Settlement Scheme

The High Court recently held that aspects of the EU Settlement Scheme, the scheme set up to enable eligible EU citizens (and citizens of Switzerland, Norway, Iceland or Liechtenstein) and certain family members to remain in the UK after Brexit, are unlawful.

Under the scheme, those who started living in the UK by 31 December 2020 could apply for one of two types of status:

those who had lived in the UK for a continuous 5-year period were able to apply for ‘settled status’ (which gives the holder a right to live in the UK permanently); and
those with less than 5 years in the UK were able to apply for ‘pre-settled status’ (which gives the holder a right to stay in the UK for 5 years from the date pre-settled status was granted). Those wishing to stay longer must apply for settled status or other immigration permission before the expiry of their pre-settled status.

In its application for judicial review of the scheme, the Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA) argued that the scheme was unlawful as anyone with pre-settled status who fails to apply for settled status will automatically lose their right of residence in the UK. This, the IMA argued, was not compatible with the terms of the EU withdrawal agreement. The High Court agreed – the terms of the withdrawal agreement do not allow for an individual to lose their residence right because they failed to make a second application under the scheme.

The full impact of this decision and any potential appeal is not yet clear. In the meantime, whilst uncertainty remains, those with pre-settled status who wish to stay in the UK should apply for settled status (or other immigration permission) where they are eligible to do so.

Automatic unfair dismissal and COVID-19

The Court of Appeal has found that an employee who refused to return to his workplace in April 2020, citing concerns about the COVID-19 pandemic, was not automatically unfairly dismissed.

The claimant alleged that the decision to dismiss him was automatically unfair because his failure to return to work was in circumstances of serious and imminent danger. The tribunal accepted that the claimant had genuine concerns about the virus. However, taking into account a range of factors (including the size of the warehouse he worked in and the small number of employees on site), the tribunal concluded that the claimant did not reasonably believe that there were circumstances of serious and imminent danger within the workplace. The claimant was therefore not automatically unfairly dismissed.

The Court of Appeal upheld the tribunal’s conclusion. It also clarified that there is nothing in the relevant statutory provisions that requires that the danger should be exclusive to the workplace – someone may have a reasonable belief in a danger that is also be present outside of the workplace (for example on the bus or in a supermarket). This clarification did not change the outcome in Mr Rodgers’ case but it provides useful guidance for employers when they are faced with automatic unfair dismissal claims of this type.

(Rodgers v Leeds Laser Cutting Limited)

Podcast: Tricky redundancy selection issues

With many organisations facing significant costs challenges as a result of high inflation and increased operating costs, some employers may be considering restructuring and redundancy programmes. In a podcast he recorded with XpertHR in 2021, Luke Bowery (partner in the employment team) looked at some common tricky issues that can arise in redundancy selection exercises. We are re-sharing this podcast in case it in might be of interest to any organisations considering such programmes.

Listen to the podcast here >

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