UK Employment Law Update

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”

There has been much talk of flexibility in the workplace as employers continue to adapt to changes in working patterns arising from the pandemic and prepare to deal with amendments to flexible working requests set out in the Employment Relations (Flexible Working) Act 2023, due to come into effect in spring 2024.

Whilst for many employers and employees there is a reciprocity in the benefits of flexible working patterns, there are some groups of workers for whom the flexibility may be one-sided. The concerns of “one-sided flexibility” were raised in the Good Work Plan and addressed by the Low Pay Commission, who set out their proposals in response to these concerns.

Many agency workers, short-term/fixed-term workers and workers on zero-hours contracts experience one-sided flexibility and uncertainty in their working patterns. On 18 September 2023, the Workers (Predictable Terms and Conditions) Act 2023 was passed to address the issue of one-sided flexibility and seeks to provide these groups of workers greater certainty and predictability in respect of their working patterns.

Continue reading “Workers (Predictable Terms and Conditions) Act 2023”

World Menopause Day was held on 18 October 2023. The purpose of the day was “to raise awareness of menopause and the support options available for improving health and well-being.”

It is estimated that 51% of the population will experience menopause, and pre-pandemic research undertaken by the Chartered Institute of Personnel and Development (CIPD) showed that women over 50 were the fastest-growing group in the workforce. These statistics highlight the continued importance of offering support and raising awareness of menopause in the workplace.

Menopause as a Protected Characteristic

The Equality Act 2010 lists nine “protected characteristics” on which discrimination claims can be based. Those characteristics are age, gender reassignment, marital status, pregnancy/maternity, disability, race, religion or belief, sex and sexual orientation.

In July 2022, the Women and Equalities Committee House of Commons published their committee report “Menopause and the Workplace.” In this report, it was recommended that menopause should be made a protected characteristic under the Equality Act 2010. Whilst there was public support for this proposal, the government confirmed in January 2023 that they would not be making menopause a protected characteristic given their concerns that to do so would have unintended consequences and might inadvertently create new forms of discrimination.

Continue reading “World Menopause Day and Protected Disability Status”

On 4 October 2023, the UK Supreme Court delivered its enthusiastically awaited judgment in the case Chief Constable of the Police Service of Northern Ireland and another (Appellants/Cross-Respondents) v Agnew and others (Respondents/Cross-Appellants) (Northern Ireland), confirming that employees can make historic claims of underpayment of holiday pay even if there are gaps of more than three months between deductions.

The case examined historic underpayments of holiday pay to police officers and civilian staff working for the police in Northern Ireland, arising from calculations based on basic pay without consideration of payments made for overtime that was regularly worked.

The officers and staff brought claims for underpayment of holiday pay after having historically received basic pay only during periods of annual leave. The parties agreed that there had in fact been an underpayment, and that holiday pay should have been calculated to include overtime pay for periods of compulsory overtime. The critical issue before the Supreme Court in this case was how far back the claimants were entitled to go with their claims.

Continue reading “At Last – Supreme Court Decision on Historic Underpayment of Holiday Pay”

An interesting article in the (London) Times last week revealed that workplace absences in Britain are at their highest in a decade.

Over the past year, British employees are reported to have been absent for an average of 7.8 days, two entire days more than the rate before the pandemic of 5.8 days.

The Chartered Institute of Personnel and Development, the professional body for the human resources sector, and the healthcare company Simplyhealth are reported as calling on employers to have an open and supportive culture on health issues and give staff access to flexible working options and health services.

Continue reading “British Staff Absence Rate – Up to a Decade High”