Employment Law Update | Autumn 2024

The Employment (Allocation of Tips) Act 2024 will come into force on 1^st October 2024. This means:

• Employers must pass tips on to workers without deductions and by no later than the end of the month following the month they are paid by customers
• A draft statutory code of practice sets out how tips should be distributed fairly and transparently 
• Employers should have a written policy on tips
• Tips cannot count towards minimum wage
• Workers have a new right to request a copy of their tipping record, and employers must keep a record of distribution of tips for 3 years

A failure to fairly allocate and pay tips could result in Tribunal claims and the employer having to pay up to £5000 in compensation to the employee or worker, with a potential uplift if there has been no adherence to the Code of Practice.

The statutory Code of Practice on Dismissal and Re-engagement (Code of Practice) came into force in July 2024.

Whilst there is no stand-alone claim for breach of the Code of Practice, Tribunals must take it into account in relevant cases, such as unfair dismissal. An unreasonable failure to follow the Code of Practice can result in an uplift of up to 25% to an award.

The Code of Practice requires employers to consult “for as long as is reasonably possible”, though there is no specific minimum period for consultation. Employers must view “fire and rehire” as a last resort, and should limit any changes to terms to those that have been consulted about.

On this topic, USDAW v Tesco Stores was recently heard by the Supreme Court. Tesco argued that they could terminate and re-engage employees with a view to removing a permanent benefit (“retained pay”). The matter was appealed to the Supreme Court, where it was held that there was an implied term in Tesco workers’ contracts that they could not be terminated for the purposes of removing their entitlement to a permanent benefit; this would remove the value of the benefit if it could be removed unilaterally by terminating employment. It was therefore necessary to imply a term that Tesco’s right to terminate could not be exercised for the purpose of depriving a contractual benefit. 

Whilst this case is somewhat unusual on its facts, it is pertinent for employers who may be negotiating benefits for employees. Amongst other things, the duration and permanence of benefits should be carefully drafted. 

An employer can defend a harassment claim by showing it took “all reasonable steps” to prevent the harassment happening. From 26^th October 2024, employers have an additional, proactive duty to prevent sexual harassment at work. A failure to comply with this duty can result in an increased award at Tribunal of up to 25%.

It is extremely important for employers to have anti-harassment policies, procedures and training in place and to enforce these to demonstrate compliance with this new duty.

Earlier this year, the Equality and Human Rights Commission (ECHR) issued new guidance for employers on menopause in the workplace.

The guidance provides an overview of menopause and perimenopause and how symptoms may impact women in the workplace, for example reduced concentration and increased stress. 

The guidance explains that menopausal symptoms can amount to a disability under the Equality Act 2010 (this is determined on case by case basis). There may also be protections from discrimination on the grounds of age and sex. 

If an employee’s symptoms constitute a disability under the Equality Act 2010, then their employer must make reasonable adjustments for them. 

Employers should consider introducing a menopause policy setting out its approach to dealing with issues relating to menopause.

Following the Government’s commitment to introduce significant reform to employment law, the Employment Rights Bill (“Bill”) was published on 11^th October 2024, together with a “Next Steps” document.  There is no set date for the Bill’s introduction; however, it is widely reported that October 2026 is the likely date.

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Belief Discrimination 

Oomba v Michael Garret Associates

Facts: The Claimant, a Christian, was to play the lead role in the Respondent’s production of “The Color Purple” which depicted a lesbian relationship involving her character. The Claimant had previously posted on social media that homosexuality was sinful. The post resurfaced which caused adverse publicity to the Respondent and the production. The Respondent dismissed the Claimant. The Claimant brought a claim of, amongst other things, religion or belief discrimination. 

Outcome: The Tribunal held that whilst the belief was protected, her claims failed. The Claimant was not dismissed because of her belief but because of the adverse publicity from the post. The EAT agreed with the Tribunal’s finding.

Lister v New College Swindon

Facts: The Claimant held the belief that sex was “binary, immutable and a biological fact and should not have been conflated with gender identity.” A student of the Respondent complained about the Claimant’s offensive conduct towards a trans student, which included misgendering and deadnaming the student, and making offensive comments to them. A risk assessment concluded that the Claimant’s belief posed a high risk of harm to the students. This led to the Claimant’s dismissal. The Claimant claimed belief discrimination and unfair dismissal.

Outcome: The Tribunal held that the Claimant’s views amounted to a protected belief. However, the Tribunal found that whilst anyone is free to express a belief, that right does not extend to upsetting, distressing or harassing others and the complaints were dismissed.

Thomas v Surrey and Borders Partnership NHS Foundation Trust

Facts: The Claimant claimed that his assignment with the Respondent had been terminated because of his belief in English nationalism. 

Outcome: The Tribunal, and subsequently the EAT, held that the belief was not protected under the Equality Act as it did not satisfy the criterion in order to be a protected belief. For a belief to be protected under the Equality Act, the belief must be worthy of respect in a democratic society, must not be incompatible with human dignity and must not conflict with the fundament rights of others. The belief was anti-Islamic, and a form of hate speech.

Comment: Matters of this nature are sensitive and can be difficult to manage. It is therefore always advisable to seek legal advice. 

Race Discrimination

Turner-Robson and others v The Chief Constable of Thames Valley Police

Facts: Three white police officers brought claims against their employer for race discrimination. The Respondent had a “Positive Action Progression Scheme”, which fast-tracked minority ethnic officers from Sergeant to Inspector. The three Claimants were not able to apply for the vacant role of Detective Inspector before it was filled by a minority ethnic officer.

Outcome: Employers have the ability to take positive action to address disadvantages of those with a protected characteristic, such as race. However, this does not apply to recruitment and promotion unless the candidates are equally suited for the job and an underrepresented characteristic is applied as the “tiebreaker”. 

The claims of discrimination were successful. 

Comment: Positive action can be a proportionate means of overcoming disadvantage or underrepresentation, but this does not apply to decisions about recruitment or promotion unless applied as a tiebreaker. It is advisable to take legal advice as to whether positive action is likely to be unlawful or justified, before taking positive action. Each case must be considered on the facts.