Employment Law Archives

2024 Lib Dems Manifesto: Protecting carers, strengthening worker rights

Posted on 28 June 202422 March 2025 by Sarah O'Sullivan

General election 2024: Liberal Democrats employment law manifesto

The Liberal Democrats have announced a proposal to add “caring” to the list of protected characteristics under the Equality Act.

Carers already benefit from protection under the Equality Act. Coleman v Attridge Law confirmed the principle of discrimination by association, although a change in the legislation could refine and codify this area of law.

Details about how the Liberal Democrats would achieve this are presently limited, and it remains to be seen how “caring” would be defined for the purposes of the legislation.

Employees (including but not limited to those with caring responsibilities) are also already entitled to make flexible working requests, which can include increasing the time they work from home and seeking to alter their hours. Whilst the right to flexible working is currently limited to employees, amending the Equality Act could provide increased protection for workers with caring responsibilities.

Whatever the Government decides post-election, taking time out to care for a loved one can be emotive and challenging. Good communication between employers and employees can help reach an agreed-upon and workable way forward and reduce the risks of a dispute. Parties who are unclear about their rights or obligations should seek legal advice sooner rather than later.

Individuals with caring responsibilities or who have suddenly found themselves with caring responsibilities should check their employee handbook for any policies on taking time off to care for and attend appointments with their dependents. Similarly, it is good practice for employers to continue reviewing policies to ensure their employees are well supported should they need to care for dependents.

Trans and non-binary rights

The Liberal Democrats are pledging to strengthen the rights of trans and non-binary people. They would remove the need to obtain medical reports and recognise non-binary identities. Whether this would replace the current gender recognition certificates remains to be seen.

The Liberal Democrats would require large employers to monitor and publish data on gender, ethnicity, disability and LGBT+ employment levels, pay gaps and progression. Whilst likely to be anonymised, employers should exercise utmost caution when handling this data, as personal data revealing racial or ethnic origin and sexual orientation is treated as ‘special category data’ under GDPR and subject to special rules and safeguards. This requires data processors (in this case, the employer) to act within the scope of GDPR legislation, amongst other things, in ensuring that the processing of the special category data falls within one of the ten conditions under which processing is allowed (see Article 9 of the UK GDPR). Failure to comply with the GDPR requirements can result in potential claims by the data subjects (in this case, employees) and severe punitive sanctions by the regulator. The ICO and employers should seek advice on ensuring compliance with their various legal obligations and managing any overlaps between legal considerations.

Worker protection enforcement authority

Another area of note is the promise to create a new Worker Protection Enforcement Authority (“WPEA”). Presently, there are three Government bodies tasked with enforcing employment rights:

Gangmasters and Labour Abuse Authority (“GLAA”)
Employment Agency Standards Inspectorate (“EAS”)
HMRC National Minimum Wage and National Living Wage team (“HMRC NMW”)

The GLAA issues licences to agencies supplying workers to the UK fresh produce sector and seeks to protect vulnerable and exploited workers. It also liaises with the police and NCA to prevent worker exploitation and criminal activity.

The EAS is responsible for protecting the rights of agency workers. It works with employment agencies and businesses to ensure compliance with the law and investigates complaints from agency workers.

HMRC enforces the national minimum wage on behalf of the government and encourages compliance with minimum wage legislation.

All three bodies work together alongside other enforcement agencies, and any new authoritative body would likely replace the existing three. Its responsibilities would include enforcing minimum wage legislation, tackling modern slavery, and protecting agency workers.

There are natural advantages to a unified body, including providing a clear source of assistance and information for individuals and businesses alike to approach, greater coordination between the civil and criminal enforcement units and more efficient use of resources.

Dependent contractor

The Liberal Democrats have also indicated that they would seek to introduce a new “dependent contractor” status, which would sit between employment and self-employment, granting the contractor basic rights, including minimum earnings levels, sick pay and holiday entitlement (see also Labour’s proposals on worker/employee distinctions here: Election 2024: What’s in store for employment law?

It is unclear how this new proposed status would interact with the existing status of workers or whether it is intended to replace it entirely.

National Insurance

The Liberal Democrats have said they will review the tax and National Insurance status of employees, dependent contractors, and freelancers to ensure “fair and comparable treatment.” What this will entail is unclear, but it will likely encompass IR35 reforms.

Flexible working

Labour and the Liberal Democrats mention flexible working in their manifestos and give the right to request flexible working to workers and employees alike. Following the reforms made to flexible working that came into existence on 6 April 2024, the right to request flexible working is now a day-one right afforded to all employees. Employers only have limited grounds to reject requests and a dismissal because an employee has made a flexible working request, which is deemed an automatically unfair dismissal.

The Liberal Democrats would also give “every disabled person the right to work from home if they want to unless there are significant business reasons why it is not possible.” However, it is unclear how this will be implemented, as the Equality Act 2010 already requires employers to make “reasonable adjustments” for disabled people (as defined under the legislation).

Family friendly rights

The Liberal Democrats, like Labour, are proposing to extend day-one rights for parental leave and pay.

In their manifesto, the Liberal Democrats say they would double statutory maternity and shared parental pay and increase statutory paternity pay to 90% of earnings during paternity leave. The increase to statutory paternity pay would be subject to a cap on high earners, but this cap has not been disclosed.

It is unclear whether the entitlement to paternity leave and pay would be extended to the new “dependant contractor” status. Currently, eligibility for paternity leave is limited to employees with no less than 26 weeks of service ending with the Qualifying Week (the 15th week before the baby is due) and taking time off to care for the baby or their partner. If the employee satisfies these conditions, they will be able to take up to two weeks paternity leave. However, the Liberal Democrats have indicated a desire to introduce “an extra use-it-or-lose-it month for fathers and partners”.

They pledge to give each parent six weeks of use-it-or-lose-it leave paid at 90% of earnings and 46 weeks of shared parental leave, which will be paid at twice the current statutory rate. The Liberal Democrats seem to accept that the state will fund these ambitions and that they will only be implemented once “the public finances allow.”

In the short term, should the party be elected, employers should consider the potential hurdles of covering an employee for an extended period while paying them 90% of their earnings, subject to any caps that may subsequently be imposed.

The Liberal Democrats have also proposed introducing paid neonatal care leave, but it is unclear how this will affect the incoming Neonatal Care (Leave and Pay) Act 2023. This Act, expected to come into force from April 2025, will create a statutory entitlement to neonatal care leave and pay. It should be noted that much of the details of this Act have yet to be determined, including the levels of pay, duration, and relationship requirements. However, it is likely to dovetail with parental bereavement leave provisions. However, it will be available to employees without a service requirement, providing that their child receives neonatal care (which has yet to be fully defined) within 28 days of birth.

The Liberal Democrats would also mirror Labour in making SSP available on the first day of sickness and aligning the rate with the National Minimum Wage.

2024 Election: Conservatives’ proposed reforms to anti-discrimination legislation

Posted on 19 June 202422 March 2025 by Sarah O'Sullivan

Whilst not making it explicitly into their manifesto, the Conservatives have expressed a wish to protect the “privacy and dignity of women and girls” by defining sex as biological in the Equality Act 2010.

What does this mean for employers?

Presently, under the Equality Act, sex is not explicitly defined, but the protected characteristic of sex is covered by section 11, which states that:

“(a) a reference to a person who has a particular protected characteristic is a reference to a man or a woman;

(b) a reference to persons who share a protected characteristic is a reference to persons of the same sex.”

Sex is, therefore, under the current legislation, understood to be binary and the same as that recorded on an individual’s birth certificate. However, the legislation does not guide how individuals who have transitioned should be treated.

Whilst primarily focused on those changing gender, the Gender Recognition Act 2004 (“GRA”) attempts to clarify the status of those in possession of a gender recognition certificate (“GRC”). Section 9(1) GRA states that where a GRC is issued to a person, then:

“if the acquired gender is the male gender, the person’s sex becomes that of a man, and if it is the female gender, the person’s sex becomes that of a woman.”

However, section 9(3) adds a proviso that section 9(1) is subject to provisions made in any subordinate legislation. As the Equality Act fails to make clear that it triggers section 9(3), there remains a lack of clarity regarding the treatment of trans men and women.

As a result, there is still a grey area and a discrepancy between those who have a GRC and those who do not. With waiting times for NHS gender identity clinics now reaching more than five years, and combined with the requirement for individuals to provide evidence of living in their affirmed gender for two years, this process is lengthy and means that there are likely many people who never receive a GRC and the additional legal protections it confers.

Amending the act to clarify the definition of sex and to address questions about trans status could provide greater certainty to employers and service providers alike. The Equality and Human Rights Commission has also recommended that the “sex” should be defined as biological sex for the purposes of the Equality Act. In her letter to Ms Badenoch, the Chairwoman of the EHRC identifies 8 areas in which such a definition would provide clarity:

pregnancy and maternity;
freedom of association for lesbians and gay men;
freedom of association for women and men;
positive action;
occupational requirements;
single sex and separate sex services;
sport; and
data collection.

However, such a change would not be a definitive solution. Complexities around discrimination would not necessarily be eradicated by simply adding an explicit definition of sex within the Equality Act.

Both direct and indirect sex discrimination would be affected by the change as it would reverse potential claims, i.e. trans women would no longer be able to bring claims as women, thus transferring the right to bring a claim for sex discrimination.

Whilst sex may be defined as biological, having the effect of preventing individuals from bringing certain claims for discrimination, those who identify as trans are still going to be protected by the Equality Act. The Equality Act presently makes provision for nine protected characteristics, including:

age;
disability;
gender reassignment;
marriage and civil partnership;
pregnancy and maternity;
race;
religion or belief;
sex; and
sexual orientation.

An individual will still be able to bring a claim in relation to any of these characteristics if they can demonstrate that they have been directly or indirectly discriminated against. Section 7 of the Equality Act defines that an individual is eligible for the protected characteristic of gender reassignment if they are “proposing to undergo, [are] undergoing or [have] undergone a process (or part of a process) to reassign the person’s sex by changing physiological or other attributes of sex”.

The employment tribunal in Taylor v Jaguar Land Rover Ltd considered the criteria to satisfy section 7. It was held that there was a broad range of scenarios under which an individual would be covered by the Act. It confirmed that there is no need for an individual to have undergone any surgical procedures and that an individual need only be “actively considering”, “intending to”, or “deciding to undergo gender reassignment” to be protected from discrimination. The case also highlighted that the courts are open to considering those who identify as non-binary or genderfluid as protected under the gender reassignment provisions of the Equality Act.

Whilst we do not know whether any changes will be made, we would recommend that it is best practice for employers to continue to keep their policies under review and updated to ensure that no group are being discriminated against. Employers are under a duty to take all reasonable steps to prevent discrimination. They should, therefore, consider whether there are further steps they could take to ensure that their workplace is fit and welcoming for all employees.

An employer may wish to take a range of actions, including consulting any transitioning individuals to understand their needs and concerns, encouraging sensible and understanding workplace behaviour, and conducting equality impact assessments before implementing new policies and procedures.

Election 2024: What’s in store for employment law?

Posted on 7 June 202422 March 2025 by Sarah O'Sullivan

Ahead of the upcoming election on Thursday, 4 July, Alex Haines examines the major parties’ proposals for employment law reforms.

In this first instalment Alex looks at Labour’s proposals to create a single status of worker and the Conservatives’ continuing efforts to reform trade union legislation and what this could mean for businesses and individuals.

Labour – Single Status of Worker

Worker? Employee? Self-employed? In today’s economy, and especially in the gig economy (with temporary, flexible, or freelance jobs), it can be difficult to distinguish an individual’s legal working status.

The current definitions of workers and employees have been criticised in recent years for lacking clarity and not being applicable to the modern gig/platform-based economy.

Labour has proposed creating a system with two employment statuses: worker (inclusive of “employees”) and genuinely self-employed.

Under the Employment Rights Act 1996, an employee is defined (under section 230 of the Employment Rights Act 1996) as an individual who has entered or works under a contract of employment (service or apprenticeship, express or implied, oral or in writing).

Meanwhile, a “worker” is an individual who has entered into or works under either an employment contract or any other contract (our emphasis). The individual undertakes to do or to perform personally any work or services for another party to the contract whose status is not, by virtue of the contract, that of a client or customer of any profession or business undertaking carried on by the individual.

The distinction is potentially confusing but legally important. Workers enjoy some protections, including those under the minimum wage and common law duties of care; employees are afforded additional protections and rights, including:

being covered by the ACAS Code of Practice on Disciplinary and Grievance Procedures;
rights when transferred under TUPE (albeit note that the definition of employee has, confusingly, been wider than under other legislation);
statutory maternity pay (SMP);
statutory paternity pay (SPP);
statutory adoption pay (SAP);
shared parental pay (ShPP);
statutory parental bereavement pay (SPBP);
parental leave;
shared parental leave (SPL);
shared parental bereavement leave (SPBL);
ordinary maternity leave (OML);
additional maternity leave (AML);
right to request flexible working;
statutory sick pay (SSP);
not to be refused employment because of membership or non-membership of a trade union;
various rights to paid and unpaid time off;
statutory minimum notice periods;
protection from unfair dismissal;
statutory redundancy payments, and
the right to collective redundancy consultations.

As with many pre-election policies, the details of Labour’s proposal are scant at present. Labour has promised to simplify the definitions and create a two-tiered system of worker and genuine self-employed. This change might help to reduce the backlogs in the Employment Tribunal by reducing the need for hearings on individuals’ employment status. However, whilst this policy may reduce one layer of litigation, it alone will not reduce such delays.

It appears likely that Labour would plan to afford workers the same rights as employees and protections. This may offer greater certainty to individuals (and businesses) as to the status and rights of those providing services, one way or another.

Labour also says they “will also clamp down on bogus self-employment.” There is care here to avoid penalising those individuals who have actively chosen to be genuinely self-employed. For many, being self-employed may be a conscious choice that offers them freedom and independence from the bounds of a traditional employment contract.

Such a substantial realignment of employment rights will require significant thought, lengthy consultation, and careful implementation. Any changes will unlikely occur within Labour’s first 100 days in office and will be subject to scrutiny and refinement.

Nevertheless, it is good practice for employers to review their current employment contracts and consider whether there are individuals whose status has inadvertently been miscategorised. The documentation should reflect the parties’ intentions and the reality of the working relationship. If not, this will always be susceptible to challenge, as in the leading case of Autoclenz Ltd v Belcher.

Where the documentation does not reflect the party’s intentions or reality, we recommend employers update and correct contracts and working arrangements as appropriate.

It may also be prudent for an employer to undertake a higher-level review of their working arrangements to identify whether new arrangements are needed to provide both parties with greater certainty.

Conservatives – Trade Union Reform

The Conservatives have not been as forthcoming with their employment law proposals for the upcoming election. However, the introduction of the Strikes (Minimum Service Levels) Act 2023 merits mention.

Strikes (Minimum Service Levels) Act 2023 (“Strikes Act”)

This Act attempts to mitigate against the disruption caused by strike action by requiring minimum service levels to be maintained, most notably in the health, transport, education, fire and rescue, and border control services.

The Act has proved controversial, with the Public and Commercial Services Union (“PCS”) being granted permission to initiate a Judicial Review of the Act. The PCS claim that the law is an infringement of Article 11 of the European Convention on Human Rights (“ECHR”), which enshrines the right to freedom of peaceful assembly, association with others, and the right to form and to join trade unions. Any restrictions that are to be imposed on this right must be in the interests of national security or public safety and must be necessary and proportionate.

Other countries, including France, Spain, and Ireland, also have minimum service legislation to ensure that minimum standards are met in certain sectors. However, there are often requirements for employers to enter into agreements with the union following consultations. The Strike Act does not appear to require any specific negotiations between the employer and union to establish a mutually agreed service level. Instead, the Secretary of State can specify the minimum service levels for the sectors, having consulted “such persons as the Secretary of State considers appropriate”. How this will work in practice remains to be seen, but enabling such government intervention may cause concern that unions will not be adequately consulted and that the right to strike will not be respected.

Under the Strikes Act, the employer can, following consultation with the union, serve a “work notice” on the union, detailing which workers are required to work and what they are required to do. If the union fails to take reasonable steps to comply with the notice, it will lose its immunity from tort claims by the employer.

Repeal of Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003

In addition to legal challenges over the Strike Act, the Conservatives could revive their efforts to repeal regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (“the Regulations”), which prevents employment businesses from introducing or supplying agency workers to cover strike action.

The Conservatives previously repealed regulation 7 in 2022, however this repeal became subject to a judicial review which was heard by the High Court on two grounds.

That the Government failed to comply with their statutory duty to consult before making the 2022 Regulations that repealed regulation 7.
In repealing Regulation 7, the Government breached Article 11 of the ECHR, which prohibits unlawful interference with the rights of trade unions and their members.

The High Court ruled that the Government had failed to consult bodies representative of the interests concerned. Whilst the Government contended that the consultations in 2015 were sufficient, the High Court held that, as circumstances had changed since this consultation and the implementation of the repealing legislation. Moreover, the High Court ruled that the Government had not considered the outcome of the 2015 consultations when considering whether to repeal Regulation 2.

As a result, we may see the Conservatives seek to run a fresh consultation on repealing regulation 2. However, as the second limb of the Judicial Review was not considered, further uncertainty will remain over the enforceability of any repeals in the context of human rights legislation.

When should Non-Disclosure Agreements be used?

Posted on 20 April 202422 March 2025 by Sarah O'Sullivan

A Non-Disclosure Agreement (NDA) is a legal contract used to prevent people from discussing confidential information. In employment law they are often parts of a contract, or sometimes a standalone contract between employees and their employer.

Typically NDAs prevent employees and former employees from making information public, they can sometimes be referred to as ‘gagging orders’ or ‘confidentiality agreements’ or may be included within a settlement agreement when leaving employment.

Why use a Non-Disclosure Agreement?

NDAs have a valid use to protect commercially sensitive information such as inventions, ideas or anything that may damage a company’s reputation. They may be signed for instance by parties contemplating the sale and purchase of a business.

The Women and Equalities Select Committee (WESC) has recently published a report addressing the issues and is specifically concerned by the use of gagging clauses to settle discrimination and harassment claims, arguing that it means that these cases are not being properly investigated and that they cause an imbalance of power between employer and employee to the detriment of the employee.

What does a Non-Disclosure Agreement cover?

NDAs cannot stop an employee’s reported alleged illegal acts. If a manager or colleague faced allegations of or fraud, for instance, reporting these to the police would not be prevented.

Allegations of an employer making inappropriate comments, or bullying could be covered. However bullying may be illegal if it relates to certain protected characteristics such as race, religion, age, disability or sexual orientation.

The length of time for which an NDA applies will vary for each agreement.

Call our specialist solicitors on 0808 231 1320

Are Non-Disclosure Agreements legally binding?

The contracts are legally binding so that if you are a victim and you sign one, receiving a financial pay-out, you are prevented from talking to anyone about the allegations.

Can a Non-Disclosure Agreement be broken?

If you breach a valid, legally compliant NDA, then it is classed as breaching a contract, leaving you liable to legal action.

If a company thinks it is likely the NDA is going to be breached, then they can apply for an injunction. If you then breach an injunction, this is a criminal offence, and can lead to a fine or jail for those found guilty.

What if an employer wants to settle a discrimination case?

It is common to settle disputes, including for discrimination by settlement agreements. These can include confidentiality provisions but must not prevent whistleblowing or reports on criminal offences.

Do whistleblowers have legal protection?

NDAs cannot be used to prevent workers from whistleblowing. Any clause aiming to prevent you from making a valid public interest disclosure will be void.

References

These can be included in the settlement agreement and will not be contrary to an NDA or confidentiality terms.

Enforceability

Confidentiality and non-derogatory comments provisions can form valid, important parts of the deal for all parties in a transaction or settlement but must be drafted with care and in measured terms that are legally enforceable and compliant. We can assist you in advising and drafting on these.

At Tees we have a team of employment law specialists who can help you with any of the issues discussed here and provide support whether you choose to sign an NDA or contest it.

Key changes to employment law coming into effect this April 2024

Posted on 25 March 202422 March 2025 by Sarah O'Sullivan

With numerous changes to employment law coming into effect from 6 April 2024, employees and employers should remain current and prepared for the latest legal developments.

Our summary below highlights key changes that will be made to the following:

National minimum wage
Flexible working
Carer’s leave
Paternity leave
Calculating holiday pay for irregular hours and part year workers
Redundancy protection
Changes to tribunal compensation limits and statutory amounts for a weeks’ Pay

National minimum wage and national living wage

From 1 April 2024, the National Living Wage will increase to £11.44 an hour (from £10.42), and this will be adjusted to include those aged 21 and over.

The National Minimum Wage from 1 April will increase to:

£8.60 an hour (from £7.49) for workers aged 18-20;
£6.40 an hour (from £5.28) for workers under the age of 18; and
£6.40 an hour (from £5.28) for apprentices.

Employers should ensure they meet the new rates applicable. Where necessary, employers should increase employee remuneration for the first pay period after 6 April. Failure to meet the requirements may lead to staff raising grievances and/or bringing claims and/or HMRC taking enforcement action. For more complex arrangements, such as where accommodation is provided, we recommend employers take advice to ensure that they are meeting the requirements.

Flexible working

From 6 April, the right to make a flexible working application will become a day-one right for all employees. The Flexible Working (Amendment) Regulations 2023 will remove the current requirement for an employee to be continuously employed for at least 26 weeks to make an application.

Under the new legislation, employees can make two applications per year and will not have to explain the effect this change in work might have on their employer. Employers will have two months (previously three) to consult and respond to the flexible working requests.

Employers should observe the guidance on handling flexible working requests (in conjunction with the new regulations) which has been published by ACAS in their new Code of Practice which can be found at: https://www.acas.org.uk/acas-code-of-practice-on-flexible-working-requests/html

Carer’s leave

The Carer’s Leave Act 2023 will come into force on 6 April. This gives employees the right to take one week of unpaid leave per year to provide or arrange care for a ‘dependant’ who has:

– a physical or mental illness that means they’re expected to need care for more than three months;
– a disability as defined by the Equality Act 2010; or
– requires care because of their old age.

The dependant does not have to be a family member, it can be anyone who relies on the employee for care. This is another day-one right. Employees will be able to take this leave flexibly, but they can only take one week of leave every year.

Employers should ensure that managers and senior leadership understand this new entitlement and communicate the changes to employees. Employers will need to consider how this will affect any contractual and/or carer policies they might have in place, and if necessary, update their policies to cover the new right. We recommend seeking advice as appropriate to ensure that policies and procedures are compliant.

Paternity leave

Changes to The Paternity Leave Amendment Regulations 2024 will come into force on 6 April.

The Regulations (which will apply in cases where the expected week of childbirth falls on or after 6 April), will allow fathers and partners to take their paternity leave in two non-consecutive blocks of one week within the first year after the birth or adoption of their child. This change offers fathers and partners more flexibility to take leave at times which work for their family. Employers should be mindful that this new measure will only require an employee to provide four weeks’ notice prior to each period of leave.

Again, it is important that employers review their policies and processes in line with the new Regulations and update any policies and procedures as appropriate and seek advice as appropriate.

Calculating holiday pay and leave for irregular hours and part year workers

The Employment Rights (Amendment, Revocation and Transitional Provision) Regulation 2023 contains important changes to how holidays should be calculated and paid for ‘irregular-hours’ and ‘part-year’ workers (both of which have been defined in the Regulation).

From 1 April 2024, employers must adopt the accrual system for calculating leave entitlement when dealing with irregular hours or part year workers. This change means that rather than using the leave year system (i.e. 5.6 weeks leave in a given leave year comprised of 4 weeks’ annual leave and 1.6 weeks’ additional leave), they will instead get one-twelfth of their leave in each month (i.e. if a worker works for 5 days week, and is entitled to 28 days annual leave a year, after their third month of working, they would be entitled to 7 days’ leave).

Separately, for leave years starting on or after 1 April 2024, employers will also have the option to pay their irregular hours and part-year workers rolled-up holiday pay. This involves spreading a worker’s holiday pay entitlement over the year by adding an amount on top of their basic pay. Employers should notify their worker’s if they are planning to use rolled-up holiday pay, and introducing this change might involve updating contracts and any policies and procedures.

For employers, practical difficulties can arise when workers who have irregular hours do not receive the correct amount of holiday pay under the rolled-up holiday pay system. Workers may receive too much or too little depending on the number of hours worked, and the risk is that this could potentially result in claims being brought for unlawful deduction of wages. To mitigate this risk, employers need to ensure that payslips make clear what element of a worker’s pay is holiday pay and what is basic pay and ensure that they meet any requirements around clearly setting this out in the worker’s pay information.

Redundancy protection

For employees taking maternity, shared parental or adoption leave, The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 from 6 April will bring into force The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulation 2024, which will extend the priority status for these individuals being offered suitable alternative roles by their employer (if available), where they have been selected or put at risk of redundancy. The act most importantly now extends to employees who are pregnant.

The protection will be extended for up to 18 months (after the expected week of childbirth, the child’s date of birth, or adoption), for those who have recently returned to work from maternity, adoption or shared parental leave (after six or more consecutive weeks) and for employees who are pregnant and have notified their employer of their pregnancy.

Employers will need to ensure that managers and senior leadership staff are aware of the changes being made to the priority status for redeployment opportunities in redundancy situations.

Tribunal Compensation Limits and a Week’s Pay

The maximum compensatory award for unfair dismissal will increase from £105,707 to £115,115, or a year’s gross pay, whichever is lower;
The limit on one week’s pay when calculating redundancy pay (and the basic award for unfair dismissal) will be raised from £643 to £700;
The minimum basic award for some forms of unfair dismissal will rise from £7,836 to £8,533; and
The cap on statutory redundancy pay will increase from £19,290 to £21,000.

How to raise a grievance at work: A comprehensive guide

Posted on 27 November 202322 March 2025 by Sarah O'Sullivan

A work grievance is a formal concern, complaint, or issue that an employee raises with management. Handling grievances correctly is essential for fostering a positive workplace environment and ensuring fair treatment.

What is a grievance at work?

A workplace grievance can occur for various reasons, including:

Concerns about employment contract terms and conditions
Health and safety issues
Unfair treatment, discrimination, bullying, or harassment
Problems resulting from organisational changes or new work practices

Some complaints, such as those related to discrimination or whistleblowing, may follow specific legal procedures. Seeking professional legal advice can help ensure your grievance is handled correctly.

Informal grievance resolution

Before filing a formal grievance, consider addressing the issue informally. In many cases, a simple conversation with your line manager can resolve the problem. This approach is often quicker and less stressful.

If your complaint involves your manager, consider speaking to another appropriate person, such as an HR representative.

Formal grievance procedure

If informal discussions fail to resolve the issue, you may choose to initiate a formal grievance. Most employers have a grievance policy, typically based on the ACAS Code of Practice on Disciplinary and Grievance Procedures.

Steps to Follow:

Review your employer’s policy: Familiarise yourself with your company’s grievance procedure.
Document the issue: Maintain detailed notes of events, including dates, times, and individuals involved.
Submit a grievance letter: Write a formal letter outlining your complaint and providing relevant evidence.
Attend a grievance meeting: You’ll be given the opportunity to present your case. A colleague or trade union representative can accompany you.
Await the decision: Your employer will investigate and provide a decision within a reasonable timeframe.

How to write a work grievance letter

A grievance letter is a crucial part of the process. Here are some tips:

State the facts clearly: Provide specific details about the issue, including relevant dates and evidence.
Be objective and concise: Avoid emotional language and focus on the facts.
Explain the impact: Describe how the issue has affected your work.
Propose a solution: Suggest possible resolutions.

If you’re unsure about drafting a grievance letter, an employment law specialist can assist you.

What happens in a grievance meeting?

A grievance meeting provides an opportunity for you to discuss your concerns in a formal setting. Prepare thoroughly by gathering evidence, organising your thoughts, and noting any key points.

Can you bring someone to a grievance meeting?

Yes, you have a legal right to be accompanied by a colleague or trade union representative. They can offer support and take notes but cannot answer questions on your behalf.

Mediation as a Resolution Method

Mediation can be a helpful option, especially for interpersonal disputes. A neutral third party facilitates the conversation, encouraging both sides to find a mutually acceptable resolution.

Appealing a Grievance Decision

If you are dissatisfied with the outcome, you can submit a written appeal. The appeal should state the grounds for your disagreement. Your appeal will typically be reviewed by someone not involved in the initial decision.

Seek Legal Support

Navigating a workplace grievance can be challenging. Seeking legal advice ensures your rights are protected and increases the likelihood of a fair outcome.

Contact our employment law specialists today for expert support throughout the grievance process. We can assist with drafting your grievance letter, preparing for meetings, and representing you during appeals.

Pregnancy and maternity discrimination: Know your rights

Posted on 1 November 202322 March 2025 by Sarah O'Sullivan

If you’ve been dismissed, treated unfairly, or disadvantaged at work because of pregnancy or maternity, you may have a claim for discrimination or unfair dismissal. Understanding your rights is crucial to protecting yourself in the workplace.

What is Pregnancy and Maternity Discrimination?

Pregnancy and maternity discrimination occurs when an employer treats an employee unfairly due to pregnancy, maternity leave, or the assertion of related rights. This can happen at various stages, including:

When you inform your employer about your pregnancy
During a job interview while pregnant
Throughout your maternity leave

If you face unfair treatment after your maternity leave ends, it may still be unlawful under sex discrimination laws.

Examples of Pregnancy and Maternity Discrimination

Discrimination at Job Interviews

You are not obligated to disclose your pregnancy during an interview.
Employers cannot ask about your pregnancy or family plans.
Your pregnancy should not impact the hiring decision.

Promotion Opportunities

Pregnancy or maternity leave should not affect your chances of promotion.
Employers should inform you about promotions and provide fair opportunities.

Pay During Pregnancy and Maternity Leave

Your salary may change only when you begin maternity leave.
You may receive statutory maternity pay or contractual maternity pay.
Benefits and annual leave should continue to accrue during maternity leave.

Training and Development

You should be kept informed about training opportunities.
Employers should work with you to schedule training at suitable times.

Redundancy During Pregnancy or Maternity Leave

It is illegal to make you redundant due to pregnancy or maternity leave.
If redundancy is necessary, employers must consider you for suitable alternative roles.
You have enhanced protection from redundancy while on maternity leave.

Pregnancy-Related Illness

Employers should support you if you need time off due to pregnancy-related illness.
Pregnancy-related absences should not result in disciplinary action.

Ante-Natal Appointments

You are entitled to paid time off for ante-natal appointments.
Employers cannot require you to use annual leave for these appointments.

Performance Management During Pregnancy

Employers must be understanding of any pregnancy-related impact on your performance.
Supportive adjustments should be made where necessary.

Dismissal During Pregnancy or Maternity Leave

Dismissal based on pregnancy or maternity is unlawful.
Seek legal advice if you face unfair dismissal.

Returning to Work After Maternity Leave

You are entitled to return to your original role or a suitable alternative.
Employers cannot pressure you into accepting unsuitable changes.
You have the right to request flexible working after 26 weeks of employment.

Victimisation and Your Rights

If you assert your rights and face retaliation, such as exclusion from opportunities or receiving a poor reference, this is known as victimisation. Legal support is essential in these situations.

Understanding the Protected Period

The “protected period” covers from the start of your pregnancy until the end of your maternity leave or your return to work, whichever is earlier. Unfair treatment during this period is unlawful. Afterward, you may still have a claim if the treatment stems from actions taken during the protected period.

How to Make a Pregnancy Discrimination Claim

Seek specialist legal advice to understand your rights.
Claims typically go through an employment tribunal.
The deadline for making a claim is three months minus one day from the discriminatory act.
You must contact the Advisory, Conciliation and Arbitration Service (ACAS) for Early Conciliation before filing a claim.

Contact Our Employment Law Solicitors

If you believe you have experienced pregnancy or maternity discrimination, our experienced employment law solicitors are here to help. We offer clear, expert guidance to support your claim.

Call us at 01245 293197 for a no-obligation consultation or complete our online enquiry form. Let us help you protect your rights and navigate your legal options confidently.

The Employment Relations (Flexible Working) Act 2023

Posted on 21 August 202322 March 2025 by Sarah O'Sullivan

The Employment Relations (Flexible Working) Act 2023, which received Royal Assent in July 2023, is intended to give workers more flexibility over when and where they work. This legislation is expected to come into force in the summer of 2024, based on the timescale from Royal Assent.

Chartered Institute of Personnel and Development (CIPD) research (Flexible and hybrid working practices in 2023 | CIPD) indicates that 40% of employers have seen an increase in requests for flexible working following the Covid-19 pandemic, and 66% of organisations saying they believe it is important to provide flexible working as an option when advertising jobs.

Employers and employees should therefore be mindful of the looming changes to the process surrounding flexible working requests.

Who can make a flexible working request?

Employees with at least 26 weeks of continuous employment are currently entitled to make flexible working requests to their employer. It should be noted, however, that although this has remained a requirement under the new legislation, it is anticipated that further legislation will eventually be implemented to remove this requirement, making flexible working requests a day one right for employees. Of course, any employee can make a request but employers are not obliged to consider requests unless made by eligible employees.

What are flexible working requests?

Flexible working requests should be made when an employee wishes to make a change to any of the following:

the hours they work
the times when they are required to work
the place they work (i.e. working from home, or another of the employer’s sites).

Some examples of how these changes could be implemented in practice include:

reducing hours to work part-time
changing start/ finish times
compressing hours to work the same number of hours over fewer days
job sharing.

Employees can also request the change be limited to specific days or weeks only (e.g. only during school term time), or for a limited period such as 6 months only.

How an employee can make a flexible working request

To meet the statutory requirements of a formal flexible working request, applications should:

be made in writing
be dated
state that it is an application made under the statutory procedure
specify the change the employee is seeking
specify when they wish the change to take effect
state if and when the employee has previously made an application.

An important change in the new legislation is, previously, there was an additional requirement for the employee to explain the effect that flexible working would have on the employer, and how the employer might deal with such an effect. This requirement has been removed by the new legislation.

How an employer should deal with a flexible working request

Under the new legislation, employers are required to deal with requests within two months of receipt (as opposed to the previous three months), unless both parties agree to extend this period.

Employers must deal with flexible working requests in a reasonable manner, and can only refuse requests for the following reasons (which remain unchanged under the new legislation):

the burden of additional costs
detrimental effect on the ability to meet customer demand
inability to reorganise work among existing staff
inability to recruit additional staff
detrimental impact on quality
detrimental impact on performance
Insufficiency of work during the periods the employee proposes to work
planned structural changes.

The new legislation also requires employers to consult with the employee before refusing a request. The new legislation does not provide guidance around what is required in such a consultation, but the ACAS Code of Practice does contain some guidance around this. The ACAS guide also has content covering dealing with requests in a “reasonable manner”. ACAS is currently in the process of updating this code.

If a flexible working request is accepted, the employer should issue an updated statement of main terms or provide a statement of changes to employment (under section 4 Employment Rights Act 1996).

If the request is denied, the employer must write to the employee stating this, keeping in mind that under the new legislation, the employee must be consulted before a request can be denied. Employers should note that although there is no statutory right to appeal the decision, employees now have the right to make up to two flexible working requests within any twelve month period, so if an employee’s first request is denied, they are entitled to make another one.

Employers need to stay up to date

With CIPD research showing that 49% of employers were previously unaware of the impending changes to flexible working legislation (Flexible and hybrid working practices in 2023 | CIPD), employers should ensure that they are aware of the changes as set out above. They should also consider updating any existing policies and procedures relating to flexible working arrangements to ensure that they are in line with the statutory changes and new time limits.

With the new legislation anticipated to come into force next year, we understand the ACAS Code of Practice on handling requests for flexible working is also to be updated. The purpose of the ACAS code is to “provide employers, employees and representatives with a clear explanation of the law on the statutory right to request flexible working, alongside good practice advice on handling requests in a reasonable manner” (Acas consultation on the draft Code of Practice on handling requests for flexible working | Acas).

Employers should look out for updates in relation to the new ACAS code and ensure that they are now complying with the new statutory requirements ahead of the implementation of the new Act, whilst also keeping in mind the likelihood of flexible working requests becoming a day one right.

What could happen if I unreasonably refuse a flexible working request?

If a tribunal upholds an employee’s complaint concerning the handling of a flexible working request, you may be required to reconsider the employee’s application. Alternatively, or in addition, the employee may be awarded compensation, additionally, issues over flexible working could also lead to other claims (see below).

Sex discrimination claims and flexible working

A mishandled flexible working request might lead to a potential discrimination claim. For example, if your flexible working policy has a greater impact on one sex over another (or on one particular employee because of their sex) you may face claims of indirect sex discrimination.

The ACAS guidance on flexible working, mentioned above, recommends that employers and managers should avoid making assumptions when assessing flexible working requests. All requests should be assessed consistently and with regard to business circumstances.

However, acting consistently does not necessarily mean that you can adopt a blanket flexible working policy – accepting or refusing all requests. If a dispute arises, a tribunal will look at any discrepancies in the acceptances or refusals of flexible working requests.

If your policy is found to be indirectly discriminatory, it might be possible to argue that it was a proportionate means to a legitimate aim – i.e.: that there was a good business, commercial or administrative reason for the difference in treatment.

Consideration of flexible working requests should be based on real operational needs and decisions should be objectively justifiable.

Flexible working and constructive dismissal

In general terms, a constructive dismissal occurs where an employee feels forced to resign because of the actions of their employer.

To be successful in a claim, the employee must show that their employer has committed a fundamental breach of contract that is sufficiently serious to justify the employee’s resignation – and that the resignation was due to that particular breach. The breach could be a one-off event or just one instance in a longer history of events.

Unreasonably refusing an employee’s flexible working request, or even handling a reasonable refusal badly, could constitute one of these events and expose you to a potential constructive dismissal claim.

Spring Budget 2023

Posted on 16 March 202329 March 2025 by Sarah O'Sullivan

Chancellor of the Exchequer, Jeremy Hunt, delivered his first spring budget on the 15th of March declaring it was “A budget for growth.” The fiscal update included a range of new measures, some of which had been widely trailed prior to budget day, in order to achieve growth “by removing obstacles that stop businesses investing; by tackling labour shortages that stop them recruiting; by breaking down barriers that stop people working; and by harnessing British ingenuity to make us a science and technology superpower.”

OBR forecasts

The Chancellor began his statement by unveiling the latest economic projections produced by the office for budget responsibility (OBR) which he said showed the UK would meet the Prime Minister’s priorities to “halve inflation, reduce debt and get the economy growing.” In relation to the first priority, Mr Hunt said the latest OBR figures suggest inflation will fall from an average rate of 10.7% in the final quarter of last year to 2.9% by the end of 2023. This sharp decline is partly due to some of the chancellor’s budget measures, including the three-month extension to the household energy price guarantee (EPG), which the government had confirmed earlier in the day.

Mr Hunt also said the OBR forecast suggests the UK economy will now avoid a technical recession this year (defined as two consecutive quarters of economic decline) and then expand in each of the remaining years of the five-year forecast period. According to the updated figures, the economy is expected to shrink by 0.2% this year, a significant upgrade from last autumn’s forecast of a 1.4% contraction, with growth then predicted to hit 1.8% in 2024 and 2.5% in 2025, before easing back towards its medium-term potential growth rate of 1.75% by 2028.

The Chancellor’s growth strategy focuses on the four pillars ‘everywhere, enterprise, employment and education,’ as previously outlined in his Bloomberg speech in January.

Everywhere

Mr Hunt spoke about the government’s plans for ‘levelling up,’ including the launch of 12 new investment zones. Across these “12 potential Canary Wharfs,” £80m of support per zone will be available for skills, infrastructure and tax reliefs. Mr Hunt also mentioned specific projects selected for local investment, including:

£200m for local regeneration projects and £400m for new levelling up partnerships across England
£8.8bn over the next five-year funding period for the city region sustainable transport settlements
Up to £8.6m for the Edinburgh festivals, as well as £1.5m for the repair of Cloddach bridge, near Elgin, and £20m for the restoration of the Holyhead breakwater in Anglesey
Up to £3m to extend the tackling paramilitarism programme in Northern Ireland.

Enterprise

To provide the right conditions for businesses to succeed: A ‘full expensing’ policy will apply from the 1st of April 2023 until the 31st of March 2026 to allow investment in IT, plant or machinery to be deducted in full and immediately from taxable profits
an increased rate of relief for loss-making research and development (R&D)-intensive small and medium size enterprises (SMEs) – eligible companies will receive a £27 credit from HMRC for every £100 of R&D investment
an extension of higher reliefs for theatres, orchestras, museums and galleries for two further years
the medicines and healthcare products regulatory agency (MHRA) will receive £10m extra funding over two years
all of the recommendations from Sir Patrick Vallance’s review of pro-innovation regulation of digital technologies are accepted
£900m of funding for AI research resources and an exascale computer as well as a commitment to £2.5bn ten-year quantum research and innovation programme through the government’s new quantum strategy
innovation accelerators programme – £100m funding for 26 transformative R&D projects
AI challenge prize – £1 million prize every year for the next ten years to researchers that drive progress in critical areas of AI.

Employment

The Chancellor turned next to employment, with a suite of new measures to “remove the barriers that stop people who want to from working.” To achieve this, he announced:

Mature workers

The expansion of the DWP’s ‘midlife’ MOT scheme, aiming to reach up to 40,000 individuals per year (up from the current 8,000)
new ‘returnerships’ scheme to make existing skills programmes more accessible to older workers and help them upskill and retrain
a pension tax relief overhaul; see details in the personal taxation and pensions section.
people with long-term illnesses and disabilities
a white paper on disability benefits reform
the abolition of the work capability assessment for disability benefits claimants
a new voluntary employment scheme for people with disabilities
£406m to increase support for working adults with mental health, musculoskeletal and cardiovascular problems.

Welfare recipients

An increase to the Administrative Earnings Threshold
a stronger sanctions regime for universal credit claimants.

Care leavers

A 50% increase in funding for the staying close programme
an increase in the qualifying care relief threshold to £18,140 per year plus £375 to £450 per person cared for per week for 2023/24 and these thresholds will then be index-linked, representing a tax cut worth approximately £450 per year on average.

Education

Mr Hunt then turned to Education, stating that he wants to reform the childcare system, currently “one of the most expensive systems in the world.”

His new proposal will offer 30 free hours of childcare each week to pre-school-age children aged nine months or above in English households where both parents work. It will be phased in on the following timeline:

April 2024 – eligible two-year-olds will receive 15 hours of free childcare per week
September 2024 – qualifying children aged nine months to two years will receive 15 hours
September 2025 – eligible children aged nine months to three years will receive 30 hours.

Also, schools and local authorities will be funded to increase the availability of wraparound care, to enable parents of school-age children to drop them off between 8 am and 6 pm.

To tackle the problem of unaffordable upfront costs, Mr Hunt also announced support for the 700,000 families on universal credit. Another major change involves each staff member in England being able to look after five two-year-olds instead of four, as is already the case in Scotland.

Personal Taxation and Pensions

To encourage over-50s to extend their working lives, the government is increasing tax relief limits on pension contributions and pots – the annual allowance will be raised from £40,000 to £60,000 from April 2023; the lifetime allowance (LTA) charge will be removed from April 2023, and the LTA will be abolished from April 2024. The maximum amount that can be accessed tax free (pension commencement lump sum) will be frozen at its current level of £268,275 (25% of current LTA). From April, the minimum tapered annual allowance (TAA) and the money purchase annual allowance (MPAA) will increase from £4,000 to £10,000 and the adjusted income threshold for the TAA will also rise, from £240,000 to £260,000.

As a reminder, the following changes were previously announced in the Autumn statement 2022:

The income tax additional rate threshold (ART) at which 45p becomes payable is lowered from £150,000 to £125,140 from April 2023. The ART for non-savings and non-dividend income will apply to taxpayers in England, Wales and Northern Ireland
the dividend allowance reduces from £2,000 to £1,000 from April 2023 and to £500 from April 2024
the annual capital gains tax exemption reduces from £12,300 to £6,000 from April 2023 and to £3,000 from April 2024
The stamp duty land tax nil-rate threshold for England and Northern Ireland is £250,000 for all purchasers and £425,000 for first-time buyers, remaining in place until 31 March 2025.

In addition:

The income tax personal allowance and higher rate threshold remain at £12,570 and £50,270 respectively until April 2028 (rates and thresholds may differ for taxpayers in parts of the UK where income tax is devolved)
the basic state pension will increase in April 2023 from £141.85 per week to £156.20 per week, while the full new state pension will rise from £185.15 to £203.85 per week. The standard minimum income guarantee in pension credit will also increase in line with inflation from April 2023 (rather than in line with average earnings growth)
inheritance tax (IHT) nil-rate bands remain at £325,000 nil-rate band, £175,000 residence nil-rate band, with taper starting at £2m – fixed at these levels until April 2028
national insurance contributions (NICs) upper earnings limit (UEL) and upper profits limit (UPL) are frozen until April 2028
The ISA (individual savings account) allowance remains at £20,000 and the JISA (junior individual savings account) allowance and child trust fund annual subscription limits remain at £9,000.

Other key points

Potholes fund – an extra £200m for local road maintenance in England in 2023/24
alcohol duty – rates frozen until August 2023 then uprated by RPI, draught relief increased to 9.2% for beer and cider and 23% for wine from 1 August 2023
fuel duty rates – maintaining the rates of fuel duty at the current levels for an additional 12 months
defence spending – an extra £4.95bn for defence over 2023/24 and 2024/25
support for veterans – an additional £33m over the next three years
swimming pool support fund – over £60m for public swimming pools across England
support for charities and community organisations – £100m (England)
plastic packaging tax rate – uprated in line with CPI from 1 April 2023
launching ‘great British nuclear’ – supporting new nuclear builds, £20bn available for carbon capture, utilisation and storage (CCUS), and extending the climate change agreement scheme for a further two years
devolved administrations – receiving an additional £630m through the Barnett formula over 2023/24 and 2024/25 (Scottish government £320m, Welsh government £180m and Northern Ireland executive £130m).

Closing comments

Jeremy Hunt signed off his announcement saying, “today we build for the future with inflation down, debt falling and growth up. The declinists are wrong and the optimists are right. We stick to the plan because the plan is working.”

If you have any queries or need more information on any of the areas covered, or any other financial matter, please do not hesitate to contact us.

Information within this document is based on our current understanding of taxation and can be subject to change in future. It does not provide individual tailored investment advice and is for guidance only. Some rules may vary in different parts of the UK; please ask for details. We cannot assume legal liability for any errors or omissions it might contain. Levels and bases of, and reliefs from, taxation are those currently applying or proposed and are subject to change; their value depends on individual circumstances.

All details are believed to be correct at the time of writing (15 March 2023)

Advice for employers on home working

Posted on 9 December 202222 March 2025 by Sarah O'Sullivan

The expectation for flexible working is becoming more and more in demand. According to the office for national statistics, more than 8 in 10 workers who had to work from home during the coronavirus pandemic said they planned to do hybrid work.

Government proposals around changing the rules around flexible working requests include reducing the formal content required for a request, day one rights, as opposed to eligibility currently subject to 26 weeks’ service and allowing up to 2 requests a year. The debate continues around finding arrangements that work for employees and employers and with employers often having to approach how they deal with requests and principles of flexible working, carefully, to reduce the risks of claims and attract and retain good calibre candidates to jobs.

In the current economic climate, businesses may be reassessing their requirements with consideration being given to reducing office space and rental costs, which may result in more companies considering a home-based workforce for the long term.

As we continue to debate what the ‘new normal’ looks like, it is evident that this is something of a moving target with expectations, trends and business requirements seemingly changing quickly. Against this background, it is worthwhile considering what the legal implications are for employers on some of the key considerations around home working.

Contracts of employment

Many employees will be working under contracts of employment with no specific provision to work from home, and the place of work will most likely be stipulated as the employer’s premises.

Unless there is a written term in the contract of employment permitting home working, employers would need the agreement of the employee in order to insist on home working. Imposing a unilateral change without the agreement of those affected employees could constitute a breach of the employment contract. What happens in practice, though, may also be relevant, whether that is around the employer and/or an employee wanting to revisit the ‘normal’ place of work and how work is delivered post Covid-19.

It is recommended that employers check the wording of the ‘place of work’ clause in their employment contracts as the wording may include a degree of flexibility in the favour of the employer, which can allow for a change in place of work on a temporary or perhaps even permanent basis.

If the contract contains wording allowing for flexibility and changes then the employer may not be in breach of the terms by enforcing a permanent switch to home working. Employers should note that it is still important for employers to act reasonably when implementing such a clause, otherwise, they risk breaching mutual trust and confidence – This is a term implied by law in all employment contracts and breach of it is commonly used in constructive unfair dismissal claims. It is also worth keeping in mind that terms can become part of the contract by “custom and practice”. If in doubt, employers should seek legal advice on their particular documentation and issues arising.

In any event, employers are well advised to ensure they communicate with staff in advance and where appropriate, consult as well as set aside reasonable time before implementing changes to the place of work to allow employees time to prepare and adjust.

Where consultation is needed on employment contract changes

Where there is no flexibility to the place of work clause the employer will need to adopt a different approach. Employers will need to discuss the possibility of working from home with employees and consult with them in order to get their agreement to home working along with the necessary change to the terms of their contract. Again, communication is key and a lack of communication is often a key part of disputes arising.

Call our specialist solicitors on 0808 231 1320

Dealing with a refusal to agree to contract changes

If however, employees in this situation maintain a refusal and the employer can demonstrate that:

there are good business reasons for switching to a home-working model,
it has undertaken appropriate consultation and
it has followed a fair procedure;

then it may be possible for an employer to dismiss.

In appropriate circumstances, such dismissals can be considered fair with the employer relying on “Some Other Substantial Reason” as the potentially fair reason to dismiss, provided the employer can demonstrate that the dismissal was reasonable in all the circumstances.

This should be a last resort if there is a failure to agree and the alternatives have been considered. Such dismissals are subject to due process and bring with them the risk of, amongst other things, unfair dismissal claims for eligible employees. Employers who approach such matters without due care will be exposed to claims and again, seeking professional advice early is prudent.

Employers who are faced with this scenario and are looking to dismiss should look to offer those refusing employees re-engagement on the new amended terms, including the homeworking provisions. Consideration should also be given to the numbers of employees affected: if this is 20 or more then collective consultation may need to be undertaken with potentially severe penalties if the right steps are not followed.

Duties towards employees when working from home

Where employees are working from home, employers should ensure that they are treated in the same manner as all other employees. Home-based employees are entitled to the same rights and benefits as any employee working at the employer’s premises.

An employer has both statutory and common law duties towards its employees and is responsible for an employee’s health and safety, “so far as is reasonably practicable”. In practice, this means that employers should conduct a suitable risk assessment of all work activities carried out by homeworkers to identify any possible hazards. Employers will then need to consider these obligations to decide what measures need to be put in place.

Confidentiality and data protection issues when working remotely

In addition to the health and safety aspects of home working, employers will need to consider how to safeguard business confidentiality and data protection requirements with increased chances of breaches taking place when outside of the employer’s premises.

Careful consideration is needed given the potential damage and loss that could be caused through unauthorised breaches, including significant fines that can be imposed by the Information Commissioners Office for breaches of data protection legislation – which has been strengthened since 2018.

It is also key for employers to ensure that they have suitable arrangements in place to help maintain contact with other staff, including office-based and home-workers, in order to limit issues that could arise through increased isolation of working remotely.

Where reasonable adjustments may be necessary

Where an employee has a disability, then consideration should be given to whether the provision of some equipment is required in order for the employer to comply with their duties under the Equality Act 2010 to make reasonable adjustments.

Right to requests for flexible working

It is still the case that employers are not required to agree home working requests from staff. There is no right to work from home and instead, presently, employees with 26 week’s service have the right to request flexible working arrangements.