News 📰
Employment Rights Bill 2024-2025 updates
Following the publication of the Employment Rights Bill early last month, the Bill has now passed its second reading after a lengthy debate, during which opposition MPs argued that there should be some exemptions included in the Bill for ‘micro-businesses’ (businesses with fewer than 10 employees).
The Bill stated that the government intended to go through a period of consultation about many of the proposals – this is a long process, and the lengthy wait before these changes come into effect (expected in 2026) is partly attributable to this process.
The government has commenced the consultation process in regard to the following:
- The ‘guaranteed hours’ proposal - Under the Bill, employees on zero hours contracts will become entitled to be offered ‘guaranteed hours’ to reflect the hours that they have been working previously. The consultation asks how these rules ought to be applied to agency workers, including who should be responsible for offering agency workers these guaranteed hours – the agency or the hirer. We believe that these rules will have to apply to agency workers as well, otherwise employers might prefer to employ agency workers over direct hires, as they would not need to be offered any fixed minimum hours.
- Collective redundancy - Currently, employers are under an obligation to consult with employee representatives where they propose to make 20 or more employees redundant within a 90-day period. Failure to do so attracts a ‘protective award’ (designed to punish the employer), that employers have to pay to those employees who are not properly consulted. The current award is 90 days’ pay. The government is consulting on how to amend this ‘protective award’. The two options it has put forward are (1) to increase the protective award to 180 days, or (2) to remove the maximum cap on the protective award. If this second option was taken forward, we don’t yet know how a tribunal would calculate the protective award in the absence of a cap, but it would mean that employers would need to ensure they had tight procedures in place.
- Fire and rehire - The government is consulting on the possibility of providing interim relief to employees who bring an unfair dismissal claim after being dismissed under a ‘fire and rehire’ process. That interim relief might require the employer to re-instate or re-engage the employee pending the final hearing; or, if the employer is unwilling to re-employ the employee on that interim basis, for the employer to be required to continue to pay the employee their salary and benefits until the full hearing.
- Statutory Sick pay - Currently, only employees with earnings of £116.75 or more per week will qualify for statutory sick pay. The government proposes that statutory sick pay be payable to all employees irrespective of earnings. For those under the current earnings threshold, the SSP payable will be at a prescribed percentage of the employee’s weekly earnings. The consultation seeks views as to what that percentage ought to be. The illustrative examples given in the consultation papers are 60% of earnings and 80% of earnings, although these are not government suggestions.
National minimum wage increases
The government has accepted the recommendations of the Low Pay Commission, meaning that NMW will be at the following rates per hour from April 2025:
21 years old and over: £12.21
18–20-year-olds: £10.00
16–17-year-olds: £7.55
These rates mark the smallest difference to date between the rates afforded to young people and over 21s.
ONS have published gender pay gap statistics for 2024
The Office for National Statistics (ONS) calculates the gender pay gap as the difference between average hourly earnings of men and women as a proportion of men’s hourly earnings. Overtime is excluded in these calculations.
The 2024 report made the following findings:
· The gender pay gap is gradually declining
· In the past year, the gender pay gap has decreased from 7.5% to 7%
· The gender pay gap remains larger for employees over 40 years old; indeed, it has increased for the age range of 50-59 in the past year from 11.1% to 12.1%
· The gender pay gap is larger among high earners – still at 15.5% for full-time employees in the 90th percentile of earners
Case Law Update 📢
Hunter v Carnival plc
In this case, the Claimant was selected for redundancy whilst on maternity leave. The redundancy exercise was undertaken to reduce a pool of 21 team leader roles to 16 team leaders. The Claimant brought claims of unfair dismissal and maternity discrimination, arguing that she should have benefited from some protections provided under the Maternity and Parental Leave Regulations. These protections ensure that for the first 18 months from the date of the child’s birth, if a redundancy exercise is started and there are any suitable vacancies, a mother who has been on maternity leave must be offered these vacancies first.
In the Employment Appeal Tribunal, it was decided that in this instance there was no vacancy, because the 16 retained team leader roles were not vacant. Had there been two roles amalgamated into one different role (for example), this would have classed as a vacancy.
De Bank Haycocks v ADP RPO UK Ltd
The Claimant had been dismissed as a recruiter during the COVID pandemic due to decreased demand for new employees, leading to a reduction in the work done by the Claimant. The Claimant was placed in a pool with 15 other people, and a selection matrix with 17 criteria was applied.
As part of the redundancy information and consultation process, the Claimant attended 3 meetings. She was invited to ask questions and suggest alternative approaches to the reduction in demand, to avoid redundancy. Due to receiving a low score as against the selection criteria, the Claimant was made selected for redundancy dismissal.
The Employment Appeal Tribunal held that there had not been sufficient meaningful consultation, including no general workforce consultation.
This was overturned in the Court of Appeal. They held that in the case of a smaller-scale redundancy (i.e. not a collective redundancy), there was no requirement for the company to have undertaken a general workforce consultation.
MacLennan v British Psychological Society
The Claimant had been made President-Elect for the British Psychological Society but was removed from his role after making whistleblowing disclosures, both before he started in the role and whilst working in the role.
The Employment Tribunal held that the Claimant did not benefit from whistleblowing protection, as he was not an employee or worker, based on the voluntary nature of the position.
The Employment Appeal Tribunal permitted the Claimant’s appeal, finding that factors, including the responsibilities of the role and the importance of making public interest disclosures were all worth considering. This matter has been referred back to the Tribunal to determine the Claimant’s status.
The EAT also held that workers benefit from whistleblowing protections where they have made qualifying disclosures before their employment has started.
Aghajanyan v Armenia
In this European Court of Human Rights case, a former employee of a chemical products factory in Armenia challenged his dismissal after he had made a protected disclosure. The Claimant had blown the whistle about the factory’s safety standards, due to concerns about their methods of storing chemical waste. He then went on to give an interview to a local newspaper about these issues. Following this, the Claimant was dismissed without notice for breaching his contractual obligation of confidentiality.
The case progressed all the way to the European Court of Human Rights, to consider the balance between an employee’s duty of confidentiality and their right to freedom of expression in whistleblowing cases.
The Court held that even though the decision to dismiss had been made by a private company, the State still had a positive obligation to protect freedom of expression, particularly in this case, where there was a strong public interest, namely the protection of the environment and workplace safety.
Employees in the UK would also have to consider carefully their duty of confidentiality, when considering exposing an employer in the press in this way.
Thank you to our contributors: Phil Cookson, Desley Sherwin, Laura Hill, George Miller and Natasha Ewins.