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In this article we explore some of the recent updates and developments to employment law. If you or your business require HR support, our employment team is happy to help.
If you require further information in relation to any of these matters and how they might impact your business, please contact:
Vicky Beattie, email: [email protected], telephone 0161 302 8342
Christina Glover-Hill, email: [email protected], telephone 0161302 8364
Paul Stedman, email: [email protected], telephone 0161 302 8380
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Recent Updates
Duty to prevent sexual harassment
The new duty for employers to take reasonable steps to prevent sexual harassment came into force on 26th October 2024. The Equality and Human Rights Commission published an 8-step guide for employers to prevent sexual harassment at work.
The 8 step plan can be found in more detail here and covers the following steps:
- Develop an effective anti-harassment policy
- Engage your staff
- Assess and take steps to reduce risk in your workplace
- Reporting
- Training
- What to do when a harassment complaint is made
- Dealing with harassment by third parties
- Monitor and evaluate your actions
Employers are strongly advised to review the above steps to ensure they are compliant with the new duty.
Fire and Rehire uplift extended to protective awards
In July 2024, the Code of Practice on dismissal and re-engagement (the Code) came into force, which gave Tribunals the power to increase awards by up to 25% for certain tribunal claims where an employer had unreasonably failed to comply with the Code.
Initially, this did not extend to protective awards for failure to collectively inform and consult. From 20th January 2025, the uplift will be extended to protective awards in relevant cases where the employer has unreasonably failed to comply with the Code.
It is therefore more important than ever for employers to ensure they are compliant with their consultation obligations, as well as adhering to the Code in a dismissal and re-engagement scenario.
Employment Rights Bill
The Employment Rights Bill (Bill) was published in October 2024. A summary of the key points can be found here.
There are many changes proposed which are subject to ongoing consultation.
An additional proposal to the Bill is for Employment Tribunal time limits to be extended from 3 to 6 months. This will likely have significant financial consequences for employers and Tribunals.
We will explore the changes in more detail as and when the proposals are implemented.
Recent Cases
Masiero and others v Barchester Healthcare Ltd
Facts: Barchester Healthcare Ltd’s (Barchester) had a mandatory covid-19 vaccination policy in place to protect its care home residents and staff. The Claimants were dismissed for some other substantial reason (SOSR) for refusing the vaccination. They brought unfair dismissal claims against Barchester.
The Employment Tribunal (ET) held that Barchester’s policy aimed to reduce the risk of death and serious illness and that refusing to comply with this policy fell within an SOSR to fairly dismiss the Claimants. The ET held that the dismissals were proportionate and justified to ensure a safe environment.
The Claimants appealed to the Employment Appeal Tribunal (EAT), asserting that their human rights had been infringed.
Outcome: The EAT upheld the ET’s decision. The EAT held that the policy’s aim of protecting the rights of its residents was justified. The EAT further noted that Barchester’s policy did not mandate the vaccine, rather, it set parameters for the continuation of employment. Therefore, the policy had not deprived the employees of free and informed consent to medical treatment as they had not had the treatment.
Comment: This case confirms that employers can enforce health and safety policies provided they are justified and proportionate. This is however a fine balance and specialist advice should be sought regarding such policies.
Thandi and others v Next Retail Ltd and another
Facts: 3540 female shop floor sales workers brought equal pay claims against Next Retail Ltd (Next). The Claimants asserted that the pay and contractual terms for the work the staff carried out on the shop floor was not equal to the pay and contractual terms for the work staff carried out in the warehouse. A higher proportion of men worked in the Next warehouses and a higher proportion of women worked on the shop floor.
The ET found that the Claimants were carrying out work of equal value to those working in the warehouse. To defend the case, Next was required to show that there was a reason for the disparity in pay other than the employees’ sex (a “material factor” defence). Next provided various reasons for the disparity, including market forces and market price, recruiting difficulties and the performance of the Next group.
Outcome: The ET held that the material factors put forward by Next were indirectly discriminatory, and that the reasons were not objectively justified for the worker’s basic pay. However, the ET accepted that other contractual benefits such as bonuses justifiably applied solely to the warehouse staff as they related specifically to incentivising and retaining warehouse staff.
As an ET decision, this decision is not binding on future Tribunals. However, Next has confirmed its intention to appeal this decision and the appeal outcome is likely to become a landmark decision for equal pay claims.
Comment: The average payout resulting from this case is currently estimated to be over £6,000 per Claimant. This demonstrates the significant financial risk to employers if they are unable to justify differences in pay for equal or like work with a non-discriminatory reason.
Although not all the pay terms were held to be discriminatory in this case, it is important to note that equal pay law is applicable to contractual terms and conditions beyond basic pay. For example, a disparity in annual leave entitlement or pension contributions could fall within an equal pay claim.
Wright v The Governing Body of Cardinal Newman Catholic School
Facts: The Claimant was employed as the Head of Maths at Cardinal Newman Catholic Secondary School (the School). The Claimant had a number of disabilities under the Equality Act 2010, including autism and a heart condition.
The Claimant believed he had been victimised as a result of giving evidence in support of a previous ET claim against the School. He raised a grievance with the School which was not upheld. He was subsequently offered the opportunity to discuss a settlement agreement to leave the School. The Claimant lodged a tribunal claim for victimisation.
The School later suspended the Claimant pending a disciplinary investigation due to a breakdown in the Claimant’s relationship with the Head and staff members.
The Claimant raised a further grievance alleging that the School had failed to consider or make adjustments for his disabilities. The School suggested that the Claimant return to a demoted role, which they asserted to be a reasonable adjustment.
The Claimant raised a further grievance and appealed the rejection of his second grievance. The School stated that the Claimant must either accept their offer or be dismissed. The Claimant accepted the demotion under protest, confirming he would continue with his ET claim. The Claimant was dismissed.
The Claimant claimed unfair dismissal, victimisation, discrimination arising from disability and failure to make reasonable adjustments.
Outcome: The ET upheld the Claimant’s claims save for his claim for failure to make reasonable adjustments.
In respect of the discrimination arising from disability claim in particular, the ET held that the Claimant’s repeated grievances and data subject access requests arose from his autism, and resulted in his dismissal. The School had not given due consideration to the Claimant’s neurodiversity in its handling of the Claimant’s complaints or regarding the effect on the employment relationship.
Comment: The School sought to exit the Claimant from the business via a settlement at an early stage, in advance of any true breakdown of the relationship. If a settlement offer does not qualify as a protected or without prejudice conversation, this can be put before the ET and can cause serious implications to the claim before it.
The Claimant was awarded £850,000 which demonstrates the potentially significant financial impact of discrimination claims. It is advisable for staff (particularly senior staff and managers) to undergo diversity awareness training, and for employers to have equality and diversity policies in place.
Nelson v Renfrewshire Council
Facts: The Claimant worked as a learning and support teacher in a high school. She submitted a grievance alleging the head teacher had been aggressive to her during a meeting.
Renfrewshire Council (the Council)’s grievance policy was a three-stage policy including a grievance, appeal, and further appeal. The Claimant’s grievance and first appeal took 8 months. She decided not to proceed with the further appeal as she had no faith in the system. Furthermore, the grievance rejection had stated that the interpretation of the head teacher’s alleged behaviour “was one person’s word against the other’s” and on this basis the Claimant saw no reason for a further appeal to decide otherwise.
The Clamant resigned and claimed constructive dismissal. The Council argued that she should have exhausted the grievance procedure first.
The ET found that the grievance had not been heard satisfactorily and that the appeal had not corrected the failures of the first stage hearing, but held that there was a reasonable expectation that the third stage of the grievance process would have corrected this. The Claimant appealed to the EAT.
Outcome: The EAT accepted the Claimant’s appeal. In particular, the ET had been wrong to make an “irrelevant” finding about what may happen at a further appeal. The question for the Tribunal was whether the conduct in question amounted to a repudiatory breach. The EAT remitted the case back to the ET to consider this.
Comment: This case confirms that an employee does not have to exhaust the grievance procedure before resigning and claiming constructive unfair dismissal. The employee may however be financially penalised in respect of their compensation as the ET has the power to reduce a compensatory award by up to 25% for a failure to comply with the ACAS Code of Practice on Disciplinary and Grievances.
