Employment Law Update - August 2024

News ??

In the first King’s Speech since the general election, the new Labour government has confirmed that it will introduce an Employment Rights Bill within its first 100 days and will publish a draft Equality (Race and Disability) Bill.?

On 17 July 2024, the King’s Speech, confirmed that the government’s Employment Rights Bill will deliver on the policies they set out in their “Plan to Make Work Pay” document, the most notable of these being:

1. Minimum wage changes- In the briefing notes that accompanied the King’s Speech, 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”.
2. Minimum service levels- Last 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 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.
3. Day one rights- The right to claim unfair dismissal will become a ‘day one’ right instead of the current requirement for a two year qualifying period. This leaves open the question as to the role probationary periods will play and whether dismissal may yet be possible in that trial window. It will be interesting to see how this issue is dealt with in the legislation. This proposal also states that it will provide “basic individual rights” from day one for all workers (i.e. not just employees). Extending rights to all employees and workers from day one would be a huge change, and it remains to be seen as to how the employment tribunals will cope with the potentially huge number of additional claims.
4. Time limit to bring claim- There is a plan to extend the time limit for bringing tribunal claims from 3-6 months. This will likely also cause a further strain on the existing stretched employment tribunal system.
5. Fire and rehire- The practice which occurs when contractual terms need to be changed but are not agreed and are imposed unilaterally will become unlawful. There is already a Code of Practice on Dismissal and Re-Engagement so we wait to see how this will be expanded upon and whether there will be any exceptions.
6. Maternity discrimination- It will become unlawful to dismiss an employee within 6 months of return from maternity leave (except in specific circumstances). We assume that redundancy will still be a (potentially) fair reason to dismiss within this period.
7. Zero hour contracts- There is a commitment to ban what are called ‘exploitative zero hours contracts’. In some situations, zero hours contracts can be genuinely beneficial for both parties, so we will keep a close eye on how “exploitative” contracts are defined here.
8. Unions- There is a pledge to address trade union law to ‘strengthen the worker voice’. This includes changing collective bargaining rights, a right of access to the workplace for unions, and a duty to inform workers that they have a right to join a union.

Tipping changes in force from 1 October 2024

The Employment (Allocation of Tips) Act 2023 will come into force on 1 October 2024. An accompanying code of practice on the fair and transparent distribution of tips was approved by the House of Lords shortly before the election. The new act introduces a range of new measures, including the fact that:

• employers will be required to pass on tips in full to workers;?
• tips must be allocated in a fair and transparent way;
• employers of businesses where tips are left more than occasionally are required to have a tipping policy in place;?
• tips must be distributed within one month following the month in which they were received;
• workers will have a right to request a copy of their tipping record in order to enable them to bring a claim to employment tribunal where they believe they are not receiving tips;?
• employers will be required to maintain a record of how every tip has been dealt with for three years from the date the tip was paid; and
• employers must have regard to the new statutory Code of Practice when distributing tips.?

If tips are received within your business, it is recommended that your tips policy is reviewed ahead of the introduction of the new act.

Case Law Update ??

Cairns v Royal Mail Group - The Claimant was employed as a postal delivery person with outdoor duties. A knee injury (amounting to a disability) meant he could no longer work outdoors. The Respondent began a consultation to dismiss him on grounds of ill-health retirement. At the time, no other indoor vacancy existed but there was soon to be a merger whereby indoor roles would have become available. The Claimant was dismissed.? The Employment Appeal Tribunal?held that it would have been a reasonable adjustment for the Respondent to have kept him in employment so that he could be assigned to an indoor role, on upcoming merger of the two postal offices.

This is an important reminder to ensure that where a dismissal for ill health is considered, all circumstances should be considered (including what might happen in the near future) in determining what adjustments should be made and before a decision in relation to future employment is made.

Wharton v Sheehan Haulage & Plant Hire - The Employment Appeal Tribunal, held that the tribunal was wrong to conclude that the Claimant started Acas early conciliation too late. In unlawful deductions from wages claims, the three-month time limit runs from the date of deduction (not the date of termination of employment). This means that employees who are dismissed and receive their final payment later on have differing deadlines for any claims for unfair dismissal and unpaid wages.

Keirle and others v Notaro Homes - The Claimants were dismissed. The Respondent alleged that the dismissals were because of social media posts made by the Claimants. The Claimants alleged that the real reason was that they had made protected disclosures and claimed automatic unfair dismissal on grounds of whistleblowing. ? The employment tribunal made a finding that their protected disclosures were the real reason for their dismissals and their claims succeeded. The tribunal also found that the social media posts amounted to misconduct, but decided not to apply any reduction to the compensatory award in respect of Claimant’s contributory conduct. The Respondent appealed and the Employment Appeal Tribunal?held that,?although a finding of contributory conduct usually results in some reduction to the compensatory award, there is no legal requirement that there must be a reduction in every such case. The tribunal had to reduce the compensatory award by ‘such proportion as is just and equitable’ (s123(6) Employment Rights Act 1996), but it could decide that no reduction at all was just and equitable.

Bailey v Stonewall Equality Ltd and others - The EAT has held that a charity did not cause 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 the allegation against the chambers but found that the charity had not caused or induced that discrimination, based on the complaint by the charity being a “protest” rather than a “threat”. The EAT agreed that the Tribunal’s conclusions were correct. ?

Thank you for reading our Employment Law Update. If you would like to read future updates, subscribe today! Thank you to our contributors:

Phil Cookson, Partner

Desley Sherwin, Partner

Laura Hill, Senior Associate

George Miller, Chartered Legal Executive