Updates

CHAPTER 1

1.11, 20.53 The updated Employment Tribunal Road Map 2022-23 continues the reform programme and the permanent place that video hearings will have in employment tribunals.

1.52, 22.6 From 1 April 2022 the Trade Union (levy payable to the Certification Officer) Regulations 2022 and the Trade Union (power of the Certification Officer to Impose Financial Penalties) Regulations 2022 bring in new powers to the Certification Officer, set out in Schedule A3 of the Trade Union and Labour Relations (Consolidation) Act 1992. These include a power to levy from a Trade Union a maximum of 2.5% of its income, to investigate a complaint by anyone, not just a union member, and to order financial penalties on unions for breaches.

1.67 At the time of writing (April 2023), The Retained Law (Revocation and Reform) Bill 2022 had completed the Report Stage of the House of Lords. The Bill proposes that all retained EU law, if not already in an Act of Parliament, will be repealed by 31 December 2023 unless it is specifically preserved by the government (known as the ‘sunset clause’). Any retained law by that date will then be called ‘assimilated law’.

If the Bill comes into force as it is, this could affect a large tranche of employment legislation that is in the form of Regulations rather than statute, such as Working Time, TUPE, Agency Workers, Part-Time Workers, Fixed Term Workers, etc, unless a positive decision is made to keep them.

It is not yet clear, however, if the government will extend this deadline, or make any further changes to the proposed legislation, given the huge amount of law that will have to be reviewed by the proposed date.

CHAPTER 2

2.14 Although there was no reason in principle why a director/shareholder of a company could not also be an employee or worker (Secretary of State v Neufeld [2009] EWCA Civ 280 CA), it does not necessarily follow that simply because he does work for the company and receives money from it he must be one of the three categories of individual identified in s 230(3) (Rainford v Dorset Aquatics Limited EA-2020-000123-BA).

2.32 The IR35 ‘off payroll’ rules, which required a business to determine the tax status of the individual, will no longer be in place from April 2023. Instead, the onus will be on the contractor.

2.62 In another of the gig economy employment status line of case, in Stuart Delivery v Augustine [2021] EWCA Civ 1514 the Court of Appeal upheld a decision that, on the fact of this particular case, the claimant’s ability to release a slot to other couriers via the respondent’s app was not a sufficient right of substitution to remove the obligation on the Claimant to perform his work personally and so he was a worker.

Just because someone provides services via an app, however, does not necessarily mean that they will be found to be a worker or employee. On the facts of Johnson v Transopco UK Ltd [2022] EAT 6 they had contracted as two businesses and the app was found to be a client of the taxi driver. Although there was an obligation to perform services personally, there was no dependant work relationship between them.

2.69 Tax decisions are somewhat different to employment cases when it comes to employment status. In HMRC v Atholl House Productions Ltd [2022] EWCA Civ 501, which related to IR35 and a journalist at the BBC, it was confirmed that the Autoclenz approach of looking at the true nature of the employment contract only applies in case relating to statutory employment or worker rights. It does not apply in tax cases, and contractual terms should not be disregarded unless they are unrealistic. See also Kickabout Productions Ltd v HMRC [2022] EWCA Civ 502.

2.115 The Apprenticeships (Miscellaneous Provisions) (Amendment) (England) Regulations 2022 came into force on 6 April 2022 and amend The Apprenticeships (Miscellaneous Provisions) Regulations 2017. They set out the framework for a pilot programme of flexi-job apprenticeships in a specified list of sectors, allowing for a 3-month commitment at a time instead of 12 months, allowing for different blocks of apprenticeship adding up to 12 months in total to be taken.

2.160, 23.42 The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 came into force on 21 July 2022. These amend the Conduct of Employment Agencies and Employment Businesses Regulations 2003, which had prohibited an employment business (such as an agency) from supplying workers to cover for those taking official industrial action. The regulations are currently the subject of judicial review proceedings, with the TUC arguing that they violate Article 11 of the ECHR.

2.174 In Kocur v Angard Staffing Solutions Ltd and Royal Mail Group Ltd [2022] EWCA Civ 189 the Court of Appeal confirmed the EAT decision that the right in the Agency Workers’ Regulations is simply to be informed of vacancies in the hirer’s business, not to be considered for them on equal terms as directly recruited staff.

2.186 The Exclusivity Terms for Zero Hours Workers (Unenforceability and Redress) Regulations 2022 came into force on 5 December 2022. They extend the ban on exclusivity clauses to those workers whose average weekly earnings is below the lower earnings limit (£123 per week)

2.62 The Supreme Court confirmed the decision of the CAC in Independent Workers Union of Great Britain v Central Arbitration Committee [2023] UKSC 43.

2.66 A person cannot be an employee or worker of two different employers at the same time in respect of the same work (United Taxis Ltd v Comolly [2023] EAT 93).

2.127 The maximum penalty for employing an illegal worker has increased to £45,000 per illegal worker for a first offence and £60,000 per illegal worker for a repeat offender.

2.148, 2.185, 2.186 The Workers (Predictable Terms and Conditions) Act 2023 has received Royal Assent and it expected to come into force in September 2024. It amends the Employment Rights Act 1996, inserting a new section 80I and is intended to give workers and agency workers the right to request more predictable terms and conditions of work. It works in a manner similar to that of the right to request flexible working (see chapter 6).

The work pattern can be:

(a)the number of hours that the worker works,

(b)the days of the week on which, and the times on those days when, the worker works,

(c)the period for which the worker is contracted to work, and

(d)such other aspects of the worker’s terms and conditions of employment as the Secretary of State may specify by regulations,

The legislation also specifies that if a worker works under a worker’s contract with a fixed term of 12 months or less then it is regarded as having a lack of predictability, and the worker can apply for it to be longer or to be made permanent.

Like the regime for applying for flexible working, the employer:

(a)must deal with the application in a reasonable manner,

(b)must notify the worker of the decision on the application within the decision period, and

(c)may only reject the application because the employer considers that one or more of the following grounds applies—

the burden of additional costs,
detrimental effect on ability to meet customer demand,
detrimental impact on the recruitment of staff,
detrimental impact on other aspects of the employer’s business,
insufficiency of work during the periods the worker proposes to work,
planned structural changes, and
such other grounds as the Secretary of State may specify by regulations.

It is expected that there will be a minimum service requirement of 26 weeks, but this is yet to be confirmed. Workers can make two applications in a 12 month period.

Where the employer has failed to deal with the application in a reasonable manner or has rejected it it based on incorrect facts, a claim can be made within 3 months to an employment tribunal. The maximum compensation is eight weeks’ pay subject to the weekly cap.

The worker has a right not to suffer a detriment for making such an application or bringing proceedings, and any dismissal for these reasons will be automatically unfair.

There is expected to be an ACAS code of practice to cover this topic.

CHAPTER 3

No important updates

CHAPTER 4

4.34 In Ali v Heathrow Express and Redline Assured Security Ltd EA-2021-000353-JOJ the claimant worked for the Heathrow Express. For the purpose of security checks, the respondent carried out a test using a bag containing a box, some electric cabling and a piece of paper with the words ‘Allahu Akbar’ written in Arabic. The claimant, a Muslim, heard about this and complained that it amounted to harassment of him by reference to his religion.

The EAT upheld the ET’s decision that it was not, in all the circumstances, reasonable for him to perceive the conduct as having an effect falling within section 26(1)(b). He should have understood that, in using this phrase, the second respondent was not seeking to associate Islam with terrorism, but, in the context of recent incidents in which the phrase had been used by terrorists, had used it in order to produce a suspicious item based on possible threats to the airport.

4.36 The law against third party harassment has had a chequered history. Originally created by the courts in Burton v De Vere Hotels [1996] IRLR 596, where the comedian Bernard Manning had made harassing comments against two waitresses, the EAT held the employing hotel to be liable. This was later rejected by the House of Lords in Pearce v Governing Body of Mayfield School [2003] ICR 937. It was then brought back in the Equality Act, in an easier to prove form of ‘related to’ a protected characteristic (rather than the old ‘on grounds of’), only to be repealed in the Enterprise and Regulatory Reform Act 2013. Fast forward to the ‘Me Too’ era and 2023, and the Worker Protection (Amendment of Equality Act 2010) Bill proposes reinstating protection against third party sexual harassment together with a proactive duty on employers to take all reasonable steps to prevent sexual harassment, with a 25% uplift where the employer fails to do so. This is currently working its way through Parliament.

4.88 The EAT said that the symptoms of menopause in Rooney v Leicester City Council [EA-2020-000070-DA] were substantial impairments that could be long term and so could be a disability.

4.97 The ET has found that long Covid can be a disability on the facts of the case (but this is not binding) Burke v Turning Point Scotland Case No: 4112457/2021.

4.162 The case of Mackereth v The Department of Work and Pensions [2022] EAT 99 shows that while a belief may be a protected characteristic, the employer does not have to allow all manifestations of that belief, especially where there is a conflict with another protected characteristic.

Here, the claimant was a doctor and a Christian who refused to use the preferred pronouns of transgender service users. This conflicted with the respondents’ policies and the claimant left, claiming religious discrimination.

The EAT found that the ET had been entitled to draw a distinction between the claimant’s beliefs and the way he wished to manifest those beliefs. ET had not erred in finding the measures adopted by the respondents were necessary and proportionate to meet a legitimate focus on the needs of potentially vulnerable service users, and on the risks to those individuals and, in consequence, to the respondents.

4.236 The Vento bands for claims presented from 6 April 2023 are:

- Lower band of £1,100 to £11,200 (less serious cases)

- Middle band of £11,200 to £33,700 (cases that do not merit an award in the upper band)

- Upper band of £33,700 to £56,200 (the most serious cases), with the most exceptional cases capable of exceeding £56,200.

4.36, 4.56 Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force in October 2024. It amends s40 of the Equality Act and creates a new positive duty on employers to take ‘reasonable steps’ to prevent sexual harassment of employees in the course of their employment. This applies to sexual harassment as defined in s26(2) of the Equality Act, that is unwanted conduct of a sexual nature. The Act gives employment tribunals power to uplift compensation by 25% where the employer has breached the duty.

A person cannot be harassed if they did not know about the purported harassment (here in relation to the claimant’s disability) – Greasley-Adams v Royal Mail Group Limited [2023] EAT 86.

4.162 In Higgs v Farmor’s School [2023] EAT 89, an evangelical Christian school administrator posted views on social media that sex education normalised homosexuality. When a parent complained she was dismissed, despite denying she was homophobic but stating she was entitled to her views.

The issue was whether the tribunal should have considered if the dismissal was because of the school’s objection to her views or to her manifestation of them. It should ‘carry out the requisite balancing exercise’ when assessing the school’s response, and in this case, it ‘failed to carry out any assessment of the proportionality of [its] actions and whether, in particular a less intrusive response to dismissal would have been proportionate.’

Following Eweida, the EAT gave guidance to the principles underpinning the approach when assessing the proportionality of any interference with rights to freedom of religion and belief and of freedom of expression.

The foundational nature of the rights must be recognised: the freedom to manifest belief (religious or otherwise) and to express views relating to that belief are essential rights in any democracy, whether or not the belief in question is popular or mainstream and even if its expression may offend.
Those rights are, however, qualified. The manifestation of belief, and free expression, will be protected but not where the law permits the limitation or restriction of such manifestation or expression to the extent necessary for the protection of the rights and freedoms of others. Where such limitation or restriction is objectively justified given the manner of the manifestation or expression, that is not, properly understood, action taken because of, or relating to, the exercise of the rights in question but is by reason of the objectionable manner of the manifestation or expression.
Whether a limitation or restriction is objectively justified will always be context-specific. The fact that the issue arises within a relationship of employment will be relevant, but different considerations will inevitably arise, depending on the nature of that employment.
It will always be necessary to ask:

whether, balancing the severity of the limitation on the rights of the worker concerned against the importance of the objective, the former outweighs the latter.
whether a less intrusive limitation might be imposed without undermining the achievement of the objective in question; and
whether the limitation is rationally connected to that objective;
whether the objective the employer seeks to achieve is sufficiently important to justify the limitation of the right in question;

In answering those questions, within the context of a relationship of employment, the considerations identified by the intervenor are likely to be relevant, such that regard should be had to:

the content of the manifestation;
the tone used;
the extent of the manifestation;
the worker’s understanding of the likely audience;
the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s ability to run its business;
whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk;
whether there is a potential power imbalance given the nature of the worker’s position or role and that of those whose rights are intruded upon;
the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients;
whether the limitation imposed is the least intrusive measure open to the employer.

4.162 A theatre which dismissed an actress from playing a lesbian role where she had previously posted on Facebook that she believed homosexuality to be a sin had not discriminated against her because her belief was not the reason for her dismissal, but rather the risk of adverse publicity (Omooba v Michael Garret Associates [2024] EAT 30).

4.236 The Vento bands from 6 April 2024 are:

- lower band of £1,200 to £11,700

- middle band of £11,700 to £35,200

- upper band of £35,200 to £58,700 with the most exceptional cases capable of exceeding £58,700

4.251 The Police, Crime, Sentencing and Courts Act 2022 s193, in force from 28 October 2023, made the following changes to rehabilitation periods:

Sentence	Adults	Under 18s

(Adult)Community Order/ Youth rehabilitiation order	The last day on which the order has effect	The last day on which the order has effect

Custody of one year or less	One year	6 months


Custody of more than one year and less than 4 years	4 years	2 years

Custody of more than 4 years*	7 years	3.5 years

*excluding serious sexual, violent, or terrorist offences, which continue to never be spent

Note also that The Equality Act 2010 (Amendment) Regulations 2023 came into force on 1 January 2024 and bring into domestic law certain EU provisions which would otherwise have ceased under the Retained EU Law (Revocation and Reform) Act 2023. These are:

That special treatment can be afforded to women in connection with pregnancy, childbirth or maternity;
That less favourable treatment on grounds of breastfeeding constitutes direct discrimination on grounds of sex;
That women are protected from unfavourable treatment after they return from maternity leave where that treatment is in connection with the pregnancy or a pregnancy-related illness occurring before their return;
That women are protected against pregnancy and maternity discrimination in the workplace where they have an entitlement to maternity leave which is equivalent to compulsory, ordinary or additional maternity leave under the Maternity and Parental Leave etc. Regulations 1999;
That a claimant without a relevant protected characteristic, who suffers a disadvantage arising from a discriminatory provision, criterion or practice together with persons with the protected characteristic may bring a claim of indirect discrimination;
That employers and equivalent for other work categories covered by Part 5 of the 2010 Act may be liable for conduct equivalent to direct discrimination if a discriminatory statement is made regarding recruitment, even when there is not an active recruitment process underway;
That an employee is able to draw a comparison for the purposes of equal pay claims with another employee where their terms are attributable to a single body responsible for setting or continuing the pay inequality and which can restore equal treatment, or where their terms are governed by the same collective agreement;
That the definition of disability must be understood as specifically covering a person’s ability to participate in working life on an equal basis with other workers.

CHAPTER 5

5.57 There was some discussion as to whether mandatory ethnicity pay gap reporting would be introduced, but it has now been decided that this will not take place, following a report by the Commission on Race and Ethnic Disparities. Employers can, however, report voluntarily.

The statutory payments for statutory maternity, paternity, etc pay from April 2023 rise to £172.48 and the lower earnings limit will be £123.

The Neonatal Care (Leave and Pay) Bill is currently going through Parliament. It proposes a day one right for employee who are parents of babies receiving neonatal care up to the age of 28 days and who have a continuous stay in hospital of 7 days or more. The leave must be taken within 16 months of the birth and will be for a minimum of a week. The maximum amount of leave is yet to be confirmed.

This right would be paid for those with 26 weeks’ service and who earn above the lower earnings limit.

CHAPTER 6

Following on from the Coronavirus pandemic and the Taylor Review, there has been some movement in legislation furthering flexible working and family rights, with a number of Bills going through Parliament. These are not yet legislation, but show the way that things may be changing.

6.42, 18.62 Reg 10 of the Maternity and Parental Leave regulations provide that where a redundancy situation arises during maternity leave and it is not practicable to continue to employ the mother under the existing contract, she is entitled to be offered any suitable employment on terms and conditions that are not substantially less favourable. The Redundancy (Pregnancy and Family Leave) Bill proposes that this protection is extended to protect employees from redundancy during or after pregnancy or after periods of maternity, adoption or shared parental leave, giving an extended period of protection. It would amend the ERA 1996 to enable the Secretary of State to make regulations on this subject.

Further proposed legislation is as follows:

The Carer’s Leave Bill is intended to allow employees a day one right to one week’s unpaid leave a year to provide or arrange care for a dependant with a long-term care need.

The Employment Relations (Flexible Working) Bill, which proposes to

- Protect workers with less than the lower earnings limit from exclusivity clauses, so they would not be restricted from working for multiple employers

- If an employer cannot accommodate a request to work flexibly, they will be required to discuss alternative options before they can reject the request.

- Remove the 26-week qualifying period before employees can request flexible working, making it a day-one right

- Require employers to consult with their employees, as a means of exploring the available options, before rejecting a flexible working request

- Allow employees to make 2 flexible working requests in any 12-month period

- Require employers to respond to requests within 2 months, down from 3

- Remove the requirement for employees to set out how the effects of their flexible working request might be dealt with by their employer

Although the Government had said it would make the right to request flexible working a day one right, the bill does not cover this and the Government have indicated that this will be delivered through secondary legislation.

The Workers (Predictable Terms and Conditions) Bill is intended to combat ‘one-sided flexibility’, whereby workers on zero hours contracts are often on standby for work that never comes, and to give workers the right to request a predictable working pattern. The process mostly mirrors that of the right to request flexible working. The right would simply be one to make the request, and the employer to consider it reasonably and can reject the request for the same reasons as those for flexible working. If passed, the worker would be able to make two applications in one year.

Workers would have a right not to be subjected to a detriment for making the application, and any dismissal for this reason would be automatically unfair.

Another change that has taken place is the trial of the four-day week in a number of companies, paying 100% of pay for four days’ work. This has largely been a success, with almost all the companies taking part finding that there was no loss of productivity and a greater work/life balance. It is to be noted that the choice of a four-day week has become a legal choice for workers in Belgium.

A number of statutes covering family friendly matters have been passed.

The Neonatal Care (Leave and Pay) Act is expected to come into force in April 2025. It allows parents of new babies who are admitted into neo-natal care up to 12 weeks of paid leave, in addition to other leave such as maternity and paternity leave. Regulations with the detail of the regime have not yet been published.
The Carer’s Leave Act allows the Secretary of State to make regulations to entitle employees who care for a dependant one week’s unpaid leave each year.

This is a day one right.
The Carer’s Leave Regulations 2024 set out the details of the regime. They apply to employees who have a dependant with a long-term care need who want to be absent from work to provide or arrange care for that dependant.
The minimum period of carer’s leave an employee may take is half a working day and maximum period is one continuous week, but this need not be taken on consecutive days.
An employee must give notice in writing of their intention to take carer’s leave, confirming their entitlement to take it and giving notice, whichever is the earlier of:

twice as many days in advance of the earliest day specified in the notice as the number of days or part days to which the notice relates, or
three days in advance of the earliest day or part day specified in the notice

The employer can postpone this leave if they reasonably consider that the operation of their business would be unduly disrupted if the employee took carer’s leave during the period identified in the notice. If so, the employer must give notice of the postponement before the leave was due to begin, and must explain why the postponement is necessary. The employer must then allow the leave to be taken within one month of the start-date of the leave originally requested.
An employee who returns to work after an isolated period of carer’s leave is entitled to return to the job in which they were employed immediately before the absence.
Employees are protected from detriment and dismissal because they take, or seek to take, carer’s leave (or the employer believes they are likely to do so), and any dismissal for this reason would be automatically unfair.

The Employment Relations (Flexible Working) Act 2023 will allow employees to make two applications a year rather than one, and reduce the time for an employer to make a decision from three months to two. In addition, the Flexible Working (Amendment) Regulations 2023, which came into force on 6 April 2024, made the right to request flexible working a day one right to applications made after that date.
The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 partly came into force on 6 April 2024, arising from the Protection from Redundancy (Pregnancy and Family Leave) Act 2023. The regulations extend the period of special protection from redundancy for employees who are on maternity leave, adoption leave or shared parental leave (see below).

6.54 (also chapter 18) The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 extend the protected period for redundancy protection in the following ways:

The protected period for maternity will also cover pregnancy (where the employer is informed of pregnancy on or after 6 April 2024) and will be for 18 months from the first day of the estimated week of childbirth
The protected period after leave has been taken will apply to any maternity or adoption leave that ends on or after 6 April 2024
The protection will apply to shared parental leave starting on or after 6 April 2024

CHAPTER 7

7.42 Statutory Sick Pay from April 2023 will be 109.90.

7.87 Recent rulings, such as Uber v Aslam and Pimlico Plumbers v Smith, found that many of those in the gig economy are workers and so entitled to holiday pay, etc. The issue then arises: what happens when a worker has taken leave but not been paid for it, as the employer had not regarded them as a worker? In Smith v Pimlico Plumbers Ltd [2022] EWCA Civ 70, the latest in the long-running Pimlico Plumbers case saga, the respondent had disputed the appellant’s entitlement to paid leave, and did not pay him for it. Mr Smith nevertheless took unpaid leave for which he ought to have been paid. He took no steps to invoke the right to payment until after his contract was terminated by the respondent.

Referring to King v Sash Window Workshop (C-214/16), the Court of Appeal reiterated the principle that the right to paid annual leave cannot be lost unless the worker has had the opportunity to exercise that right before the termination of the employment relationship. They said that there is a clear analogy between workers who do not take leave, and those who take unpaid leave, where in both cases, their contracts do not recognise the right to paid leave and their employers refuse to remunerate leave. In both cases, like the worker who is prevented by illness from taking annual leave, they are prevented by reasons beyond their control from exercising the right. The worker who takes leave in these circumstances, knowing it is unpaid leave, will not derive the necessary rest and relaxation from it, because it is unpaid.

If a worker takes unpaid leave when the employer disputes the right and refuses to pay for the leave, the worker is not exercising the right in the legislation. A worker can only lose the right to take leave at the end of the leave year when the employer can meet the burden of showing it gave the worker the opportunity to take paid annual leave, encouraged them to take it and informed them that the right would be lost at the end of the leave year. If the employer cannot meet that burden, the right does not lapse but carries over and accumulates until termination of the contract, at which point the worker is entitled to a payment in respect of the untaken leave. In this case therefore Mr Smith was entitled to a payment in respect of the unpaid leave.

7.71 In changes relating to retained EU law reform, The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 came into force on 1 January 2024. These regulations amend regulation 9 so that an employer does not have to keep a record of daily working hours of workers if it can show compliance without doing so.

7.84 The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 also make changes to holiday pay from 1 April 2024. These apply to workers who work irregular hours or only part of the year.

They provide the following for such workers (note that these do not apply to regular workers:

In relation to annual leave, employers can calculate holiday pay for such workers as 12.07% of the number of hours that they have worked in that pay period (including any period of sick leave and statutory leave). It can only be replaced by a payment in lieu when the employment is terminated.

Again for such workers, holiday pay may be paid by way of a 12.07% uplift to the worker’s remuneration for work done.

CHAPTER 8

8.39 The rates for the national minimum wage and national living wage from 1 April 2023 are as follows:

(a) national living wage (workers aged 23 and over) £10.42 per hour;

(b) national minimum wage (workers aged 21 to 22) £10.18 per hour;

(d) national minimum wage (16–17-year-olds) £5.28 per hour.

8.40 Apprentices under the age of 19, or over 19 in the first year of their apprenticeship, are entitled to a minimum wage of £5.28 per hour.

8.41 The rate for accommodation offset will increase to £63.70 per week (£9.10 per day). These figures are reviewed annually.

Employment (Allocation of Tips) Bill is working its way through parliament and is intended to ensure that employers pass on all tips to staff.

8.39-8.41 The minimum wage rates from 1 April 2024 are as follows:

(a) national living wage (this now applies to workers aged 21 and over) £11.44 per hour

(b) national minimum wage (workers aged 18-20) £8.60

(c)national minimum wage (workers aged 16-17) £6.40

(d) apprentice rate £6.40

Accommodation offset £9.99 per day

8.43 (d) The National Minimum Wage (Amendment) (No. 2) Regulations 2023 remove the live-in domestic worker exemption under the National Minimum Wage Regulations 2015.

The Employment (Allocation of Tips) Act 2023 is expected to come into force on 1 October 2024, and is intended to ensure that tips, gratuities and service charges paid by customers are allocated to workers, making amendments to s.27 of the ERA 1996. Employers have to pay these by the end of the following month, have a written policy on tips and to keep records of all tips and service charges for three years. There is expected to be a code of practice to cover this area.

Under s27K a worker may make a complaint to an employment tribunal in relation to the employer’s failure in how or when tips are dealt with. The claim must be brought within 12 months from the date of the failure to comply, and compensation can be awarded of up to £5000.

CHAPTER 9

9.78 Further changes relating to retained EU law reform are brought in by The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023. These make amendments to the Transfer of Undertakings (Protection of Employment) Regulations 2006, allowing employers to consult directly where there are no appropriate representatives where

the employer employs fewer than 50 employees; or
there are fewer than 10 transferring employees.

CHAPTER 10

10.83 Secure Care UK Ltd v Mott [2021] UKEAT 2019-000977 In a claim for automatically unfair dismissal after making a protected disclosure, the ET was found to have applied the wrong legal test. They had applied the ‘materially influences’ test applicable to section 47B claims for detriment by reason of making a protected disclosure (see Fecitt v NHS Manchester [2012] ICR 372), rather than the sole / principal reason test required by the terms of section 103A.

10.114 In Chell v Tarmac Cement And Lime Ltd [2022] EWCA Civ 7 the Court of Appeal upheld the decision that on the fact of this case, where the employee had been engaging in horseplay, there was no vicarious liability.

10.26 The ICO has published guidance on monitoring workers while complying with the Data Protection Act 2018. It emphasises that any monitoring should have a clearly defined purpose and employers must use the least intrusive means when doing so.

10.115 Although not an employment case, in Trustees of the Barry Congregation of Jehovah's Witnesses v BXB [2023] UKSC 15 the Supreme Court emphasised that there is a two-stage test for determining vicarious liability:

The first stage test is whether the relationship between the defendant and the tortfeasor was one of employment or akin to employment;
The second stage asks whether the wrongful conduct was so closely connected with acts that the tortfeasor was authorised to do that it can fairly and properly be regarded as done by the tortfeasor while acting in the course of the tortfeasor's employment or quasi-employment.

CHAPTER 11

11.112 Following the case of R (Independent Workers’ Union of Great Britain) v Secretary of State for Work and Pensions and another [2020] EWHC 3050 (Admin), the Personal Protective Equipment at Work (Amendment) Regulations 2022 amend the Personal Protective Equipment at Work Regulations 1992 by extending the duty on employers to provide PPE to workers, not just to employees.

11.61; 17.161 In Goldstein v Herve [2024] EAT 35 the EAT held that the ET had been entitled to find that the claimant had a reasonable belief that the circumstances connected with her place of work during the pandemic as being potentially harmful to health and safety and/or as giving rise to a serious and imminent danger, and the detriment she had suffered (including criticism of her work and failure to pay notice pay and holiday pay), meant her resignation was therefore an automatically unfair dismissal for the purposes of section 100(1)(d) ERA.

The facts here were contrasted with those in Rodgers v Leeds Laser Cutting Limited [2022] EWCA Civ 1659.

CHAPTER 12

No important updates

CHAPTER 13

No important updates

CHAPTER 14

No important updates

CHAPTER 15

No important updates

CHAPTER 16

No important updates

CHAPTER 17

For dismissals taking place from 6 April 2023, a week’s pay has increased to £643.

The maximum compensatory award has increased to £105,707.

17.162 The case of Rodgers v Leeds Laser Cutting Ltd was appealed to the EAT and then the Court of Appeal [2022] EWCA Civ 1659, which confirmed the ET’s decision. The ET had found on the facts of the case that the employee did not believe that there were circumstances of serious and imminent danger at his workplace and that any such a belief would not have been reasonable and so there was no automatically unfair dismissal.

The court further gave guidance on how to approach section 100 (1) (d):

(1) Did the employee believe that there were circumstances of serious and imminent danger at the workplace? If so:

(2) Was that belief reasonable? If so:

(3) Could they reasonably have averted that danger? If not:

(4) Did they leave, or propose to leave or refuse to return to, the workplace, or the relevant part, because of the (perceived) serious and imminent danger? If so:

(5) Was that the reason (or principal reason) for the dismissal?

Following the P&O Ferries decision to dismiss a large number of staff in 2021, a statutory code of practice on dismissal and re-engagement (aka ‘fire and rehire’) has been drafted and is, at the time of writing, being consulted upon.

17.44 During her work within the cultural bureau of the embassy, the claimant was participating in the public service of the embassy, not merely its private administration, and so the respondent could claim state immunity (The Royal Embassy of Saudi Arabia (Cultural Bureau) v Alhayali [2023] EAT 149, following Benkharbouche v Embassy of Sudan [2017] ICR 1327 SC and the State Immunity Act 1978 (Remedial) Order 2023).

17.6, 17.15-17 Omar v Epping Forest District Citizen Advice: [2023] EAT 132: in a ‘heat of the moment resignation’, the EAT set out principles to be considered, among which are:

A notice of resignation or dismissal once given cannot unilaterally be retracted, and the person cannot change their mind unless the other party agrees.
Words of potential dismissal or resignation, must be construed objectively in all the circumstances of the case with normal rules of contractual interpretation. The subjective uncommunicated intention of the speaking party are not relevant; the subjective understanding of the recipient is relevant but not determinative.
What must be apparent to the reasonable bystander in the position of the recipient of the words is that:

The speaker used words that constitute words of immediate dismissal or resignation or notice for this. It is not sufficient if the party merely expresses an intention to dismiss or resign in future; and,
The dismissal or resignation was ‘seriously meant’, or ‘really intended’ or ‘conscious and rational’. The alternative formulations are equally valid and relate to whether the speaker of the words appeared genuinely to intend to resign/dismiss and also to be ‘in their right mind’ when doing so.

The point in time at which the objective assessment must be carried out is the time at which the words are uttered. The question is whether the words reasonably appear to have been ‘really intended’ at the time they are said. However, evidence as to what happened afterwards is admissible insofar as it is relevant and casts light, objectively, on whether the resignation/dismissal was ‘really intended’ at the time.
The same rules apply to written words of resignation / dismissal as to spoken words.

17.163 Accattatis v Fortuna Group (London) Ltd was appealed to the EAT, [2024] EAT 25, which remitted the case back to the ET, stating:

‘[T]the effect of the phrase in section 100(2) beginning "including, in particular…" is that the tribunal must in every case consider and take into account whatever evidence it has specifically regarding the employee's knowledge and the facilities and advice available to them at the time when they took, or proposed to take, the steps in question.

...the paradigm scenario with which it is concerned (and which section 100(1)(d) would not cover – see Rodgers at [18]) is one in which the employee's response to the perceived danger was not to leave, seek to leave, or stay away from the workplace or a dangerous part of it, but to attempt to mitigate the danger by taking some immediate proactive step to tackle its source. It is easy to see why their knowledge, and/or the facilities or advice available to them at the time, would be regarded as highly pertinent to whether such conduct should be judged appropriate in such a case. But in any event the words apply to any and every case that is properly regarded as falling within section 100(1)(e).’

CHAPTER 18

18.42, 18.46 When consultation should occur is key. The principles in Williams v Compair Maxam and Polkey v Dayton, with appropriate adaptation, apply to all redundancy situations, not just those involving collective redundancies. The reason for consultation to take place at a formative stage is because that means that a consultation can be meaningful and genuine. That must mean that, for a process to be fair, consultation should occur at a stage when what an employee advances at that consultation can be considered and has the potential to affect the outcome. This particularly applied in this case, where there was a pool of one Mogane v Bradford Teaching Hospitals NHS Foundation Trust [2022] EAT 139

18.62, 6.42 Reg 10 of the Maternity and Parental Leave regulations provide that where a redundancy situation arises during maternity leave and it is not practicable to continue to employ the mother under the existing contract, she is entitled to be offered any suitable employment on terms and conditions that are not substantially less favourable.

The Redundancy (Pregnancy and Family Leave) Bill proposes that this protection is extended to protect employees from redundancy during or after pregnancy or after periods of maternity, adoption or shared parental leave. It would amend the ERA 1996 to enable the Secretary of State to make regulations on this subject. It is currently working its way through Parliament.

See also 6.54 The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024

CHAPTER 19

19.50 A twelve-month non-competition restrictive covenant was upheld by the High Court in Law by Design Limited v Ali [2022] EWHC 426 (QB).

19.25 Following consultation on non-compete clauses, the government has signalled an intention to legislate on this topic. Details for this are not yet known.

19.53 A restrictive covenant which covers what was contemplated by the parties, but also covers unintended ‘fantastical’ areas can still be valid (Boydell v NZP Pharma Limited [2023] EWCA Civ 373).

CHAPTER 20

20.12 A number of cases were decided by the EAT in 2022 relating to extension of time.

- In Wells Cathedral School Ltd v Souter EA- 2020-000801-JOJ time in a discrimination claim was extended as the claimant had waited to exhaust the grievance procedure. The mere fact that a grievance process has been initiated and pursued first, and/or may still be being pursued, is not automatically of itself enough. This does not mean that a claimant can secure a guaranteed extension of time merely by presenting a grievance and at least until the internal process has run its course. Whether or not it is just and equitable to extend time will depend on the tribunal’s weighing in the balance of all the factors that it regards as relevant in the given case.

- In MTN-1 Ltd v O’Daly [2022] EAT 130 , applying the Court of Appeal guidance in J v K [2019] EWCA Civ 5, time was extended in a case where the CEO of the Respondent suffered from mental health issues. The EAT said that these impairments ‘materially and substantially influenced and explain why this appeal was put in late’.

- The EAT found that the merits of a claim are not necessarily an irrelevant consideration when deciding whether it is just and equitable to extend time in a discrimination claim Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132.

20.36 A potential victimisation claim was held to be within a widely drafted COT3 which covered any claim ‘arising directly or indirectly out of or in connection with the claimant’s employment with the respondent, its termination or otherwise’, and so the claimant was not permitted to pursue the claim Arvunescu v Quick Release (Automotive) Ltd [2022] EWCA Civ 1600.

20.53, 1.11 The updated Employment Tribunal Road Map 2022-23 continues the reform programme and the permanent place video hearings will have in employment tribunals.

CHAPTER 21

21.50 In Mercer v Alternative Future Group Ltd [2022] EWCA Civ 379 the Court of Appeal found that 146 TULRCA, which protects workers against detriment related to taking part in the activities of an independent trade union, does not extend to taking part in industrial action, and therefore action short of dismissal would be legal where an employee had taken part in a strike. The court suggested that, depending on the facts of the case, the legislation may be in breach of Article 11, but that this was for Parliament to decide.

CHAPTER 22

CHAPTER 23

23.42, 2.160 The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 came into force on 21 July 2022. These amend the Conduct of Employment Agencies and Employment Businesses Regulations 2003, which had prohibited an employment business (such as an agency) from supplying workers to cover for those taking official industrial action. The regulations are currently the subject of judicial review proceedings, with the TUC arguing that they violate Article 11 of the ECHR.

Further in relation to strike action, the Strikes (Minimum Service Levels) Bill is working its way through Parliament, and could affect those in areas such as the NHS, education, fire and rescue, border security, and nuclear decommissioning.

23.47, 23.70 The Strikes (Minimum Service Levels) Act 2023 came into force on 20 July 2023. It amends s.234B of TULRCA 1992, giving the Secretary of State the power to specify minimum service levels within the following categories:

health services;
fire and rescue services;
education services;
transport services;
decommissioning of nuclear installations and management of radioactive waste and spent fuel;
border security.

It would allow employers to:

Identify the persons required to work during the strike in order to secure that the levels of service under the minimum service regulations are provided, and
Specify the work required to be carried out by them during the strike in order to secure that those levels of service are provided.

This ‘work notice’ must be given within the period beginning with the day on which the notice under section 234A is given and ending with either

The 7th day before the earliest strike date to which it relates, or
Any later day that is agreed between the employer and the union.

23.42, 2.160 The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 which purported to amend the Conduct of Employment Agencies and Employment Businesses Regulations 2003, and allow workers on strike being replaced by agency workers were found to be unlawful by the High Court in R (on the application of ASLEF and others) v Secretary of State for Business and Trade [2023] EWHC 1781 (Admin) because the Secretary of State had failed to comply with the statutory duty to consult before making the Regulations.

APPENDIX A

The annual increases are mostly set out in https://www.legislation.gov.uk/uksi/2023/318/schedule/made

More specific references such as maternity pay, national living wage, etc are found in the update to the relevant chapter.

The annual increases are mostly set out in the schedule to The Employment Rights (Increase of Limits) Order 2024, available at https://www.legislation.gov.uk/uksi/2024/213/made.

More specific references such as maternity pay, national living wage, etc are found in the update to the relevant chapter.