Author: Duane Morris

2024 promises to be a busy year for employment legislation and there are still more proposals of change this week from the Labour Party with the announcement of their plans to expand discrimination legislation.

In widely reported commentary this week, Labour proposes to introduce the following reforms to discrimination legislation under their planned Race Equality Act:

• Additional requirements for organizations to include mandatory reporting and training obligations;
• An extension to equal pay claims to cover claims based on ethnicity and disability; and
• The introduction of the right to claim dual discrimination.

Continue reading “And There’s More: Labour Party Manifesto Proposals on Employment Law”

Does an employee who delays resigning following a fundamental breach of contract lose the right to bring a constructive unfair dismissal claim on the basis that they have affirmed the contract given the passage of time between the breach and the resignation?

Two recent cases heard before the Employment Appeal Tribunal (EAT) provide helpful guidance in confirming that where there is a delay between an alleged fundamental breach of contract and the employee’s resignation, the delay itself does not necessarily amount to the employee affirming the contract.

Continue reading “Constructive Unfair Dismissal ‒ Affirming the Breach of Contract”

As we enter into 2024, discussions continue regarding employees’ physical attendance in the workplace. For many employers, the uncertainty following the pandemic of how best to structure their working practices for both business efficacy and employee satisfaction led to a lack of clearly defined terms regarding minimum levels of attendance in the workplace.

Whilst many employers and employees have benefited from hybrid working practices, there are challenges for employers who are seeking to increase their employees’ workplace attendance, which includes considerations regarding whether changes in working patterns―such as hybrid or remote working―were contractually agreed to or whether these working patterns have become implied terms of employment.

As some employers seek to increase the level of employees’ workplace attendance, there has been a subsequent increase in flexible working request from employees wanting to maintain their hybrid or remote working patterns. This is expected to further increase from April of this year when the Employment Relations (Flexible Working) Act 2023 comes into force and the right to make a flexible working request becomes a “day one” right (as set out further below).

Continue reading “Flexible Working Requests ‒ The Importance of Consideration and Communication in Refusal”

As 2023 came to a close, so did the supremacy of EU law and all directly effective EU rights. Now it will be for the Retained EU Law (Revocation and Reform) Act 2023 to set out how EU derived case law and legislation will be used in the UK moving forward in 2024.

However, post-BREXIT employment reform is only one of a number of areas of change in 2024 that employers need to be aware of. From a day one right to flexible working requests, proactively preventing sexual harassment, statutory leave for carers, to the largest ever cash increase in the national minimum wage, 2024 will see many changes for employers and employees. Below is our summary of what this year will bring in employment law together with key dates to note and links to the legislation.

Continue reading “Looking Ahead to Employment Law Changes in 2024”

The Fees Regime 2013

The level of the 2013 fee regime categorised ET claims into Type A or Type B claims with different fees payable for each type. Type A claims (which covered simple disputes such as unpaid holiday pay) attracted an issue fee of £160 and a hearing fee of £230 and Type B claims (which covered more complex disputes such as discrimination) attracted an issue fee of £250 and a hearing fee of £950. The Employment Appeal Tribunal (EAT) attracted a £400 issue fee and a £1,200 hearing fee.

The Tribunal Fees Order coincided with a decline in cases being presented to the ET and was subsequently quashed by the Supreme Court on 26 July 2017 in the case of R (on the application of Unison) v Lord Chancellor UKSC 51 for being an “unlawful interference with the common law right of access to justice.” 

On 29 January 2024, the UK government announced the launch of an eight-week consultation period regarding the proposal to reintroduce “modest fees” in the ET. In the announcement, it was made clear that the Ministry of Justice had “carefully considered” the ruling of the Supreme Court in the Unison decision and recognised that the level of fees introduced in 2013 “did not strike the right balance between meeting the policy objective for claimants to meet some of the costs of the ET and EAT and protecting access to justice” and their approach to setting the proposed fees in 2024 would be based on three key principles of affordability, proportionality and simplicity.

Continue reading “Will 2024 See the Reintroduction of Fees in the UK Employment Tribunals?”

A 28 November 2023 EAT judgement serves as a reminder of the importance of following a full redundancy procedure for organisations located within the United Kingdom.

In the case of Joseph de Bank Haycocks v ADP RPO UK Limited, the claimant, Mr de Bank Haycocks, was employed by a UK subsidiary of a United States company. He was one of 16 people employed to recruit employees for a single client company.

As a result of the pandemic, there was a reduction in recruitment such that a decision was taken at the end of May 2020 to reduce the recruitment workforce from 16 to 14 roles. At the beginning of June 2020, the UK manager was provided with criteria for a selection matrix by the US parent company. The selection scoring was undertaken by the UK manager and the claimant came last in the rankings.

On 19 June 2020, the UK manager set out a timetable for the redundancy process which was due to commence with a 14-day period of consultation starting with meetings to be held on 30 June 2020. The claimant was called to a consultation meeting on 30 June 2020 and advised of the requirement for redundancies. A further meeting was held on 8 July 2020 and then a final meeting on 14 July 2020 at which the claimant was handed a letter of dismissal.

Continue reading “Caution for UK Subsidiaries in Undertaking a Redundancy Process”

National Minimum Wage

On 21 November 2023, the government announced the increases to the national minimum wage (NMW) that will apply from 1 April 2024 following its acceptance of the complete recommendation from the Low Pay Commission in what will be the largest historical increase of NMW, worth over £1,800 a year for a full-time worker.

Continue reading “UK Government Announces Historic Increase in Wages Effective 1 April 2024”

On 21 November 2023, following seven years of litigation between the Independent Workers Union of Great Britain (IWGB) and Deliveroo, the Supreme Court handed down its judgement in the case of Independent Workers Union of Great Britain v Central Arbitration Committee and another, finding that riders for Deliveroo do not hold the legal status of employees and as such did not fall within the scope of Article 11 of the European Convention of Human Rights which would have conferred rights on the riders to join and be represented by a trade union.

In 2017, the Central Arbitration Committee rejected an application by IWGB for union recognition on the basis that the Deliveroo riders did not meet the definition of “workers” under the Trade Union and Labour Relations (Consolidation) Act 1992. IWGB challenged this finding. Following seven years of litigation, the Supreme Court has now upheld that the Deliveroo riders were not in an employment relationship. As such, IWGB’s appeal to request that Deliveroo recognize the union for collective bargaining on behalf of riders has been rejected.

In determining the status of the Deliveroo riders, the Supreme Court found the following factors were “fundamentally inconsistent with any notion of an employment relationship”:

Continue reading “UK Supreme Court Clarifies What Constitutes an Employment Relationship”

In a busy week for the government, we have seen the publication of two new draft amending regulations introduced to restate and retain rights established in EU derived legislation that may otherwise have disappeared on 1 January 2024 due to Brexit. These are the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 and the Equality Act 2010 (Amendment) Regulations 2023, both published on 8 November 2023.

Continue reading “Government Announces New Amended Regulations Post-Brexit”

On Friday, 20 October 2023, the final amendments to the Worker Protection (Amendment of Equality Act 2010) Bill 2023 were agreed upon, and on 26 October 2023, the bill received royal assent to become the Worker Protection (Amendment of Equality Act 2010) Act 2023. The law is expected to come into force in October 2024―12 months after the day it was passed.

The Worker Protection (Amendment of Equality Act 2010) Bill was introduced by Liberal Democrat MP Wera Hobhouse in June 2022 to “strengthen the legislative protections against workplace sexual harassment.”

The legal definition of harassment is set out at Section 26 of the Equality Act 2010. In summary, harassment is subjecting someone to unwanted conduct which is either related to a relevant protected characteristic or is unwanted conduct of a sexual nature where the conduct has the purpose or effect of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

According to a poll from the Trades Union Congress (TUC) published in May 2023, 43% of women had experienced at least three incidents of sexual harassment at work. The poll also found that less than 30% of women who had experienced sexual harassment at work had told their employers about it. A report produced by the Equality and Human Rights Commission based on an online survey from individuals who had experienced sexual harassment found that half of those surveyed had not reported the harassment because of the following factors and barriers:

Continue reading “Worker Protection (Amendment of Equality Act 2010) Act 2023”