Employment Law Round-Up June 2024

Click the links below to read more about the changes in employment law in June:

• Tribunal claims increase as some employers end WFH
• EAT says employer breached contract by refusing employees lifelong rail travel benefit, which was incorporated into contract
• Tribunal wrong to reject maternity related claims, following failure to apply statutory definition of redundancy
• Report considers risks of computer algorithms managing workers
• Disabled employee waived future disability discrimination claims, despite employment continuing
• NDAs that prevent disclosures by victims of criminal conduct will be void
• (Two of) the manifestos – political parties set out the employment law changes they propose

Tribunal claims increase as some employers end WFH

Companies are increasingly asking employees to return to the office, with varying policies ranging from returning to the office full-time, to minimum in-office days. Some firms are including office attendance in performance reviews. This shift has led to increased employee resistance and a rise in employment tribunal cases related to remote working. An analysis of tribunal claims mentioning remote working carried out by HR consultancy Hamilton Nash showed an increase from 27 cases in 2021 to 47 in 2022. Before the COVID-19 pandemic, only six employment tribunal cases in 2019 cited working from home. A survey of chief executives by KPMG published in October 2023 predicts that 63% of global leaders in the UK will no longer be working from home by 2026.

EAT says employer breached contract by refusing employees lifelong rail travel benefit, which was incorporated into contract

The Employment Appeal Tribunal (EAT) overturned a tribunal’s decision regarding a lifelong rail travel benefit.

The claimant employees had been entitled to discounted rail travel, provided by a third party, which was supposed to be lifelong if they retired or were made redundant with at least 5 years of service. The third party provider later limited the lifelong benefit to those who became employees before March 31 1996. Claimants who became employees after this date and were made redundant were told they no longer had the benefit and brought a breach of contract claim. The tribunal dismissed the claims, stating that the agreement to limit the travel benefit which had been agreed between the employer and the third party had been incorporated into the employees’ contracts. The EAT ruled however that there was no proper basis for this incorporation as employees were not party to the agreement and unaware of its existence. The EAT upheld the tribunal’s finding that the employees had an incorporated contractual right to the benefit after they had been dismissed. However, it overturned the tribunal’s finding that the right had been varied without a breach of contract by the employer.

Tribunal wrong to reject maternity related claims, following failure to apply statutory definition of redundancy

The EAT has ruled that the tribunal erred in rejecting claims of pregnancy discrimination and automatic unfair dismissal, in a case involving a financial accountant dismissed during her maternity leave, purportedly for redundancy.

The EAT found that the tribunal had make a mistake in going straight to the question of whether the role offered to the claimant was a suitable available vacancy, without satisfying itself whether there was a genuine redundancy situation. The tribunal determined that a non-discriminatory explanation for the treatment of the claimant was that she was redundant, but this had not been properly scrutinised.

It did not follow from the employer’s reorganisation that there had been a redundancy. The tribunal did not ask itself whether the need for employees to carry out financial accounting work had ceased or diminished, or was expected to do so.

Report considers risks of computer algorithms managing workers

A study by academics from the Universities of Bristol and Southampton has considered the impact on workers when their work is managed by computer algorithms rather than people. The study found that algorithms are increasingly managing workers in the workplace without human interaction. Concerns were raised about data processing and worker’s rights – especially given most workers will be unaware if an algorithmic system is discriminatory, and in any case they are unlikely to be able to access the information to demonstrate that it is. The study cited a lack of transparency in algorithmic decisions, which hinders workers understanding and ability to challenge the outcome.

Disabled employee waived future disability discrimination claims, despite employment continuing

The EAT upheld an employment tribunal’s decision to strike out disability discrimination claims due to a settlement agreement. The claimant signed a settlement agreement during ongoing employment, following his absence due to ill health and a grievance. The agreement transferred the claimant to a disability plan and waived specific rights he had, including disability discrimination claims. There was an exception in respect of future claims, but this exception did not apply to matters connected to the claimant’s grievance or arising from his transfer to the employer’s disability plan.

The EAT affirmed the decision in Bathgate v Technip Singapore PTE Ltd [2023] CSIH 48, confirming that future claims can be validly compromised, even if unknown at the time of the agreement. Although the claimant remained an inactive employee receiving the benefits, the EAT found this distinction irrelevant in this case.

NDAs that prevent disclosures by victims of criminal conduct will be void

The Victims and Prisoners Act 2024, which aims to make unenforceable non-disclosure agreements (NDAs) that prevent victims from reporting crimes, received Royal Assent on May 24, 2024. Section 17 of the Act would void provisions in agreements that prevent victims from disclosing information about relevant criminal conduct to:
• Law enforcement
• Qualified lawyers for legal advice
• Regulated professionals for support
• A person who is authorised to receive information on behalf of any of the above persons for the purposes mentioned above.
• A child, parent or partner of the person making the disclosure, for support.

A “victim” is a person who has suffered harm as a direct result of being subjected to, or of specified circumstances relating to, criminal conduct.

The section doesn’t void provisions preventing disclosures primarily meant for releasing information to the public domain. The Act will be brought into force on a date set by the Secretary of State.

(Two of) the manifestos

The parties have set out the employment law changes they propose. We only cover Labour and the Conservatives here.

In summary, a Labour government would:
• Strengthen the collective voice of workers, including through their trade unions.
• Ensure that the minimum wage is a genuine living wage, and remove age bands to entitle all adults to the same minimum wage.
• Take action to reduce the gender pay gap, strengthen protections from maternity and menopause discrimination and sexual harassment as well as strengthen protections for whistleblowers reporting sexual harassment.
• Introduce a Race Equality Act to address equal pay, strengthen protections against dual discrimination and introduce ethnicity pay gap reporting for large employers.
• Introduce “the full right to equal pay for disabled people”, requiring large employers to report on their disability pay gap, improve employment support and access to reasonable adjustments as well as tackle the Access to Work backlog.
• Modernise gender recognition law to remove indignities for trans people while retaining the need for a diagnosis of gender dysphoria from a specialist doctor to enable access to the healthcare pathway. Labour would continue to support the implementation of the single-sex exceptions in the Equality Act 2010.

In summary, a Conservative government proposes the following:
• An additional 2p would be taken off employee National Insurance contributions and the main rate of Class 4 self-employed National Insurance contributions would be abolished entirely by the end of the next Parliament.
• The Conservatives would introduce mandatory National Service for all school-leavers at age 18. Young people could choose between a year-long full-time placement in the armed forces or cyber defence, or the equivalent of one weekend a month volunteering in the community for a year (25 days).
• It would create 100,000 high-quality apprenticeships in England every year by the end of the next Parliament.
• The Equality Act 2010 would be amended to clarify that the protected characteristic of sex means biological sex. Legislation would also provide that an individual can only have one sex in the eyes of the law across the whole of the UK.
• The Conservatives would continue implementing the Strikes (Minimum Service Levels) Act 2023 and would bring forward legislation to reapply the entirety of the Trade Union Act 2016 to Wales.
• The fit note process would be overhauled so that people are not signed off sick “as a default”. Under a new system, responsibility for issuing fit notes would be moved away from GPs to specialist work and health professionals.
• The National Living Wage would be maintained at two-thirds of median earnings in each year of the next Parliament.
• The party would ban executive bonuses in the water industry if a company has committed a serious criminal breach.