Employment Law Update | April 2024

As we enter a new financial year, we take a look at the latest employment law updates to keep you and our clients up to date with what is going on in the industry.

Employment Law Updates

#1 The UK National Minimum Wage Increase

What is the New Minimum Wage? 

From April 2024, the National Living Wage threshold has been lowered to 21.

The new rates for National Living Wage and National Minimum Wage which came into force from April 2024 are as follows:

• Increase to the National Living Wage for those 21 or over: £11.44/hour from April 2024 (an increase of £1.02)
• Increase to the National Minimum Wage for those aged 18-20: £8.60/hour from April 2024 (an increase of £1.11)
• Increase for those aged 16-17 and apprentices: £6.40/hour from April 2024 (an increase of £1.12)

In relation to Skilled Workers…

For skilled workers, the minimum salary is the higher of the going rate for the role or the set minimum salary.

The previous minimum salary of £26,200 has increased to £38,700 (with the exception of the Health and Care Worker visa and for education workers on national pay scales).

There are transitional provisions in place for those already on the skilled worker route, but for those who have not been assigned a certificate of sponsorship by 7pm 2nd April 2024, the new salary threshold will apply. 

#2 Updates in Employment Law for Flexible Working 

From 6th April 2024, all employees have the right to request flexible working no matter how long they have been working for their employer. Further changes are regarding the requirements for making a flexible working request are as follows:

• Employees no longer need to set out in their request the effect the flexible working would have on the employer’s business and how to deal with that. 
• Employees can make two flexible working requests in any 12 month period, which is an increase from one.
• Employers need to respond to flexible working requests within 2 months rather than 3, unless the employee agrees to extend that period.

Employers would be advised to take advice on their existing policies to ensure that they are compliant with the changes.

#3 New Rules for Carer’s Leave

From 6th April 2024, employees will be able to apply for up to one week of unpaid carer’s leave in any 12-month period. This is a day one right for any employee who meets the criteria i.e. those who have a dependant with a long-term care need, and who wish to take leave to provide or arrange care for that dependant. 

The notice required from the employee is either 3 days’ notice, or twice the amount of the period of leave (whichever is the longer). 

An employer can only postpone the request to avoid undue disruption to the business, and must then allow the leave to be taken within one month of the date requested.

Under the new UK employment law updates, employers would be advised to implement policies or update their existing policies to ensure that they are compliant with this new right. 

#4 Updates on Employment Law for Paternity Leave

In circumstances where the expected week of childbirth falls on or after 6th April 2024, employees can take their two-week paternity leave in two separate 1-week blocks rather than consecutively. 

They can take paternity leave at any point within the 52 weeks following the birth (rather than 56 days following the birth).

Employees will need to give 28 days’ notice of their intention to take paternity leave (rather than 15 weeks before the expected week of childbirth). Employers would be advised to implement policies or update existing policies to ensure that they are compliant with the changes. 

#5 Enhanced Protection from Redundancy: Pregnancy and Family Leave

Employees placed in a redundancy situation whilst on maternity, adoption or shared parental leave have the right to be offered first refusal of suitable alternative employment. From 6th April 2024, this period is extended to cover more individuals, as follows: 

• Protection commences from the date a pregnant employee notifies their employer of their pregnancy and ends 18 months after the estimated date of childbirth. 
• For those on adoption leave, the protected period will cover 18 months from placement to adoption. 
• For shared parental leave, the protected period will cover 18 months from birth, provided the parent has taken a period of at least 6 consecutive weeks of shared parental leave and is not already covered by maternity or adoption leave. 

This extended right will apply to any period of maternity or adoption leave ending on or after 6th April 2024, and any applicable shared parental leave starting on or after 6th April 2024.

Case Law Updates

De Bank Haycocks v ADP RPO UK Ltd

Facts: 

Mr De Bank Haycocks was employed by ADP RPO UK Ltd (ADP). Due to a downturn in work, ADP needed to reduce the number in Mr De Bank Haycocks’ team.

Mr De Bank Haycocks was scored against subjective selection criteria and scored the lowest. During the consultation process, Mr De Bank Haycocks was not notified of his selection scores or his ranking in the scoring process. 

Mr De Bank Haycocks was dismissed for reason of redundancy. Upon appeal, he was provided with his selection scores. 

Outcome: 

The Employment Appeal Tribunal (EAT) found that Mr De Bank Haycocks had been unfairly dismissed. The EAT held that there had been an absence of meaningful consultation in the formative stages of the redundancy. It further held that the appeal stage could not rectify the fundamental failing of a lack of consultation at a formative stage.

Comment:

The purpose of consultation is to avoid dismissal or reduce the impact of redundancies. Employers who are commencing a redundancy process must be careful to undertake genuine and meaningful consultation at an early formative stage, in which the consultation can have a genuine impact on the outcome of the proposed redundancy. It is also worth noting that an appeal can sometimes rectify a flaw (such as the provision of the selection scores) but it cannot repair something time-critical such as a failure to consult at a formative stage. 

Omar v Epping Forest Citizens Advice 

Facts: 

Mr Omar had resigned verbally on two occasions in February 2020. Epping Forest Citizens Advice (EFCA) did not accept his resignation on either occasion and he was asked to reconsider. 

Mr Omar subsequently resigned a third time, with words to the effect he was “done with the organisation” and “tell who you need to but I’m off because I’ve had enough”. 

After further discussions, Mr Omar emailed the CEO of EFCA stating that he wished to retract his resignation as it was given in the “heat of the moment”. 

EFCA did not accept the retraction and treated his employment as having terminated at the end of his notice period following the resignation on 19^th February 2020.

Mr Omar claimed unfair dismissal, which was initially rejected by the Employment Tribunal as Mr Omar had resigned. Mr Omar appealed to the EAT.

Outcome: 

The EAT believed that the Tribunal had not considered all of the guidance in reaching its decision and remitted the case back to the Tribunal. The EAT judgment sets out useful guidance for future cases regarding resignations.

In particular, an employer should consider the “reasonable bystander” test, which means that the resignation should be construed in the manner an objective bystander in the circumstances would have construed them. What the employee subjectively meant is not relevant. 

If an employee changes their mind after resigning, this will not invalidate the resignation unless the employer agrees. However, if a resignation is given in the heat of the moment and was never intended to be effective, the employer should give the employee a period to cool off before acting upon their resignation, and take consideration as to whether the employee did in fact intend to resign. 

Comment:

If a resignation is given in a heightened, emotional manner, employers should give consideration as to whether it is reasonable to rely upon that resignation. Employers may wish to take legal advice in such situations.

Hunter v Lidl Great Britain Ltd

Facts: 

Miss Hunter was subjected to unwanted sexual advances and comments in the workplace. When she complained to her manager, she was told to “take it as a compliment” and that he “wasn’t surprised” by what had happened.

Miss Hunter continued to be subject to harassment, including unwanted physical contact and sexualised comments.

Outcome: 

This case involved a workplace culture of “banter” from the perspective of those harassing the Claimant. This is not a valid defence as it is the impact upon the Claimant that is relevant, not necessarily the intention of the harassing party. Moreover, the Tribunal concluded that this culture reflected the fact that harassing behaviour was allowed to go unchallenged.

Miss Hunter succeeded with her claim of harassment and was awarded just over £50,000. 

Comment:

This is an important reminder for employers to be mindful of banter in the workplace which could be perceived as discriminatory. It is important for employers to provide training to employees to ensure that that they are aware of their obligations in the workplace, particularly relating to equality and diversity. 

Abbas v ISS Facility Services

Facts: 

Miss Abbas was the only female employee working at one of ISS Facility Services’ sites. The onsite toilets available were a male bathroom and an accessible bathroom. Miss Abbas complained about the lack of a female-only space, lack of a proper lock on the available accessible bathroom, and poor hygiene in the accessible bathroom. 

Miss Abbas claimed sex discrimination on the grounds she had been treated less favourably than male employees who had their own toilets.

Outcome: 

The Tribunal relied upon an EAT decision (Early Shilton Town Council v Miller [2023]) which said that providing female staff with inadequate toilets in comparison to men was less favourable treatment and direct sex discrimination. 

Miss Abbas was awarded £15,000 for injury to feelings (inclusive of damages for a separate incident of sexual harassment). 

Comment:

Direct sex discrimination occurs where there is less favourable treatment on the grounds of sex. Employers should be mindful of ensuring that facilities within the workplace are adequate and equivalent for both men and women. 

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