Employment rights Archives

Employment Rights Bill 2024: Worker protections and productivity

Posted on 10 October 202421 March 2025 by Sarah O'Sullivan

Understanding the Employments Rights Bill 2024

The Employment Rights Bill 2024 (the Bill), unveiled on 10 October, introduces significant changes to the UK’s employment laws, marking the largest overhaul in decades. With 28 reforms, the Government has presented the Bill as aiming to enhance worker protections and boost productivity across the economy.

One of the standout changes is enhanced “day one” rights, including the right not to be unfairly dismissed (see also below). With this, there is a proposed introduction of a statutory probation period for new hires. This may allow employers more time to assess employee suitability notwithstanding the new day one rights being introduced.

Key Reforms: Day-one rights and probation periods

One of the most significant reforms is the removal of the existing two-year qualifying period for protection against unfair dismissal. This change ensures that an estimated nine million workers will benefit from protection from unfair dismissal as soon as they start a new role.

Additionally, the bill includes day-one rights for paternity leave, unpaid parental leave, and bereavement leave, building on the existing day-one right to maternity leave. This is a major change.

The Government will consult on a statutory probation period, with the current proposal favouring a nine-month limit. This extension, which has drawn mixed reactions from businesses and unions, is intended to provide flexibility for employers, while maintaining worker protections throughout the probation period. Full implementation of this probation reform is expected by autumn 2026, following further consultations.

End of exploitative practices and strengthened sick pay

The bill also takes aim at so called exploitative zero-hours contracts and controversial fire-and-rehire practices. These reforms are intended to provide more job security and protections, especially for workers on flexible or irregular contracts. For those on zero-hours contracts, the bill introduces the right to guaranteed working hours after a set period, ensuring greater financial stability for over a million workers.

Another key reform is the overhaul of statutory sick pay. Under the new provisions, workers will be entitled to sick pay from day one of illness, removing the previous three-day waiting period and the lower earnings limit. This change aims to provide immediate financial support for those who fall ill, especially lower-paid workers who previously did not qualify for statutory sick pay.

Flexible working and gender pay gap action plans

Recognising the changing dynamics of the modern workplace, the bill makes flexible working the default, unless employers can demonstrate that it is impractical. This reform is designed to support workers with caregiving responsibilities and improve work-life balance across various sectors.

Large employers will also be required to implement action plans to address gender pay gaps and support female employees, particularly through menopause. This measure is part of a broader push to promote inclusivity and diversity within the workforce.

Fair work agency and long-term reforms

The bill establishes a new “Fair Work Agency”, tasked with enforcing key rights such as holiday pay and sick pay. This agency will consolidate existing enforcement bodies, providing better guidance for employers while ensuring compliance with the new laws. The government has also outlined future reforms in its “Next Steps” document, including plans for a right to disconnect, mandatory reporting on ethnicity and disability pay gaps, and a move towards a simpler, two-tier worker status framework.

While the Employment Rights Bill boasts a sweeping set of reforms, many of the provisions will take time to implement, with some requiring further consultations before being fully enacted. Nevertheless, the bill represents a bold step towards improving worker protections and enhancing productivity in the UK economy.

For more insights into how these changes may affect your business or employment, contact our Tees Law team. We’re here to provide legal guidance on navigating this new landscape and ensuring compliance with evolving employment laws. We’ll be running webinars and workshops on the new rules and how businesses can navigate these new waters over the coming weeks and months. Please get in touch with us if you are interested in these.

On Wednesday 6 November we are running a specific webinar around Employment Law changes that the Labour government has proposed. You can register your interest here: https://communications.teeslaw.com/27/178/landing-pages/rsvp-blank.asp.

For any questions, please contact us at employmentteam@teeslaw.com.

Navigating AI regulation in the UK: Essential insights for employers

Posted on 10 October 202421 March 2025 by Sarah O'Sullivan

This year, the European Parliament formally adopted the Artificial Intelligence Act (“AI Act”), the first comprehensive law designed to regulate AI on a broad scale across the European Union.

This landmark piece of legislation which was introduced on 13 March 2024 laid the foundation for AI governance within the EU but has left some UK employers wondering how these developments will influence the regulatory landscape, particularly as we observe the new long-term objectives for AI that have been proposed by our Labour Government.

The Current UK regulatory landscape

Last year on 3 August 2023, the Government released their AI Regulation White Paper which indicated that the UK had no plans to introduce a horizontal AI regulatory framework like the EU. Instead, the feedback received as part of the Government’s consultation on the policy suggested that the UK would lean more towards adopting a principles-based model that would allow existing sector-specific regulators to tailor AI regulations according to their respective industries. At present, this position remains unchanged, and it is likely that we will see AI-specific laws and regulations introduced in the UK in the not-so-distant future.

As the UK Government enacts its AI agenda, employers will have to navigate several considerations for effective AI regulation and compliance. Below, we have explored some of the essential areas that employers should focus on as they look to integrate AI systems into their businesses.

Sector-specific regulation

Employers should familiarise themselves with how AI regulations may differ across various industries. Each sector may be guided by unique regulatory bodies that impose different requirements for AI use, and which would necessitate a more proactive approach to compliance. In addition to this, businesses should conduct their own assessment of AI technology to ensure that it adheres to existing regulations and anticipate any future legislative changes.

AI development

The Government has emphasised the importance of responsible and ethical AI use. Employers will need to ensure they engage in best practices around transparency, accountability and inclusivity where AI is deployed, to mitigate potential risks (where possible) and maintain public trust. This may involve implementing new policies and guidelines for the ethical deployment of AI technologies.

Impacts on employees

As AI systems evolve, so do their effects on the workforce. Employers should understand the implications of AI on jobs and employment dynamics. Preparing the workforce for reskilling and deploying AI in underserved areas of business will be crucial for maintaining a productive and efficient working environment. Earlier this year, The Institute for Public Policy Research estimated that roughly 11% of workplace tasks are exposed to automation through existing generative AI, and that this could rise to 59% of tasks in the second wave of AI adoption as technologies develop to handle increasingly more complex processes.

Data privacy and security

With AI’s reliance on handling vast amounts of data, compliance with existing data protection regulations (such as the General Data Protection Regulations) is highly important. Employers must ensure their AI systems are secure and responsible in their data usage and align with the latest best practices.

Monitoring regulatory changes

The AI regulatory landscape is continuously evolving. Employers should establish mechanisms to stay informed about upcoming regulations, guidelines, and industry standards that could impact their practices. This could involve, among other things, engaging with industry associations, regulatory bodies, and participating in relevant forums.

As employers look to navigate the evolving AI landscape, it is crucial that they adapt and remain compliant with the latest legal requirements. Company policies, hiring practices, and data privacy protocols should be reviewed periodically to reflect the changes to AI tools and technologies. Encouraging a culture of continuous learning by helping employees upskill and adapt to these changes can be an advantageous strategy and help equip staff with the knowledge to use AI responsibly and effectively.

Balancing innovation with regulation always requires a strategic approach. Businesses should consider using AI effectively whilst adhering to new legal and ethical standards to stay compliant and support a responsible and sustainable AI-driven future.

At Tees, we have specialist Employment Law experts with many years of experience who can help businesses navigate the complex and evolving AI landscape confidently and clearly.

What next for equal pay?

Posted on 6 September 202422 March 2025 by Sarah O'Sullivan

Landmark legal victory for next employees in equal pay case

Following a six-year legal battle, over 3,500 current and former Next employees have secured a major win in their Employment Tribunal complaints for equal pay. The ruling may result in Next paying up to £30 million in back pay. Despite the retailer’s intention to appeal, the decision could have wide-reaching consequences for other UK employers.

The wider impact on major retailers

This legal victory marks the first of its kind against a national UK retailer. Other major supermarkets, including J Sainsbury’s Plc, Tesco Plc, W Morrison Supermarkets Ltd, Asda Group Ltd, and Co-operative Group Ltd, face similar claims from 112,000 workers. If these claims succeed, the financial ramifications could amount to billions of pounds.

The basis of the claim: Pay disparity between shop and warehouse staff

The central issue in this case was the pay gap between predominantly male warehouse staff and mostly female shop staff. Next argued that wider market forces justified the disparity, maintaining that warehouse operators earned higher salaries due to industry standards. However, the Tribunal rejected this defense, stating that cost-saving measures did not justify the discriminatory effect.

Equal pay and the concept of equal value

A critical element in the case was the determination of whether shop and warehouse staff performed work of equal value. The Tribunal concluded that retail staff work was of comparable value to that of warehouse employees, leading to the decision that Next was required to provide equal pay.

Key factors in establishing equal value

Gender disparity: 77.5% of retail consultants were female, compared to 52% of warehouse employees being male.
Independent assessment: Equal value is determined through independent expert analysis, comparing the responsibilities, effort, and skill of both roles.
Tribunal’s role: Even minor differences in tasks can be disregarded if they are deemed insignificant in the overall comparison.

Lessons for employers: Mitigating equal pay risks

This ruling serves as a stark reminder for employers to assess their pay structures. Companies should ensure that roles of equal value receive equal pay, preventing the risk of costly litigation.

Practical steps for employers

Conduct regular pay audits: Review and compare salaries across different roles to identify disparities.
Ensure transparency: Maintain clear documentation on how pay decisions are made, using objective criteria.
Provide justifiable explanations: Base pay differences on legitimate factors such as experience, qualifications, and market rates.
Promote equal opportunities: Encourage career development for all employees, removing barriers to advancement.
Seek legal guidance: Consult legal professionals to ensure compliance with equal pay regulations.

The ongoing battle for Next employees

While the ruling is a significant milestone, the journey is far from over. With Next pursuing an appeal, employees face further delays and legal complexities. The case underscores the challenges of achieving equal pay justice and the importance of robust legal support.

Employers should view this ruling as a wake-up call to proactively address pay equality. Taking preventative measures now can mitigate legal exposure and foster a fairer, more equitable workplace.

For tailored legal advice on equal pay compliance, contact our team of experts today.

Employment law: Labour bring in the ‘right to disconnect and surveillance’

Posted on 9 July 202422 March 2025 by Sarah O'Sullivan

Labour’s proposed manifesto introduces two significant employment policies to address hybrid working challenges: the right to disconnect and protection from employee surveillance. These measures aim to ensure employees have a clear separation between work and personal life and are safeguarded from intrusive monitoring.

Right to disconnect: A solution to blur between work and life

With the widespread adoption of hybrid working, the line between professional and personal life has become increasingly blurred. Many employees feel pressured to respond to emails and attend to tasks outside their regular hours. Labour’s proposed right to disconnect policy seeks to combat this issue by restricting after-hours work communication.

International precedents

France: Introduced a right to disconnect in 2017, following a 2004 court ruling that protected an employee from dismissal for ignoring after-hours calls. Employers in France may face additional remuneration obligations if employees are required to work outside regular hours.
Ireland: Implemented a non-legally binding Code of Practice outlining best practices for employers, with non-compliance serving as evidence in relevant legal claims.

Unclear implementation plans

Labour has not yet specified whether the UK’s version of the right to disconnect would involve statutory restrictions or follow a code of practice. Regardless, businesses can proactively address the issue through clear hybrid working policies, ensuring mutual understanding between employers and employees.

Practical steps for employers

Establish clear communication expectations for hybrid and remote workers.
Respect employee preferences for traditional or flexible working hours.
Use scheduling tools to send emails during designated working hours.
Allow exceptions for critical business needs while maintaining transparency.

Protection from surveillance: Balancing security and privacy

Some employers have responded to hybrid working by increasing employee monitoring. While employers may have legitimate reasons for this, such as protecting sensitive information and ensuring productivity, surveillance raises privacy concerns.

Legal considerations for employee monitoring

Human Rights Act 1998 & Article 8 of the ECHR: Employees have a right to privacy, even in a professional setting. The ruling in Bărbelescu v Romania emphasised that courts must carefully assess employer monitoring.
Data Protection Laws: Monitoring involves the processing of personal data, making compliance with UK GDPR essential. Employers must ensure transparency, necessity, and proportionality when conducting surveillance.

Employer responsibilities

Justify monitoring: Employers should ensure any monitoring is reasonable and necessary.
Inform employees: Clear, transparent policies must explain what is monitored and why.
Data security: Access to monitoring data should be restricted and securely maintained.
DPIAs: Conduct Data Protection Impact Assessments (DPIAs) to evaluate privacy risks before implementing monitoring measures.

Labour’s approach to employee surveillance protections

Labour has committed to introducing protections against excessive employee surveillance. While specific details are lacking, the party has indicated that employers would be required to consult and negotiate surveillance policies with trade unions through collective agreements.

Best practices for employers

Engage employees and representatives in transparent discussions on monitoring policies.
Ensure data protection and privacy policies are comprehensive and up-to-date.
Regularly review monitoring practices to ensure legal compliance.

Preparing for policy changes

Labour’s proposed policies signal a growing emphasis on employee well-being and privacy in hybrid work environments. Employers can stay ahead by fostering transparent communication, implementing fair monitoring practices, and promoting work-life balance.

By proactively reviewing and adjusting their policies, businesses can ensure compliance with potential new laws while maintaining a positive and productive work culture. For tailored advice on adapting to these potential changes, consider consulting legal professionals specializing in employment law.

The end of Zero Hour Contracts: ‘Fire and Rehire’ no more

Posted on 3 July 202422 March 2025 by Sarah O'Sullivan

Labour has outlined significant employment law reforms, including the introduction of a single worker category, extending day-one rights, banning the practice of fire and rehire, and limiting the use of zero-hour contracts. These proposals could reshape employer-employee relationships across the UK.

Fire and rehire: What employers need to know

The controversial practice of “fire and rehire” made headlines in March 2022 when P&O Ferries dismissed around 800 workers. This tactic involves terminating employees and rehiring them on different, often less favorable, terms.

While fire and rehire is currently legal under UK employment law, employers must follow strict guidelines. Dismissals may be deemed fair if employers:

Engage in meaningful consultation: Employers should first consult employees and seek agreement on contract changes.
Demonstrate a sound business reason: Employers must have clear, evidence-backed justifications for the change.

Labour’s stance on fire and rehire

Labour has committed to banning fire and rehire practices. However, before this ban takes effect, employers should be aware of the government’s Statutory Code of Practice on Dismissal and Re-engagement, coming into force in July 2024. While the Code won’t prohibit fire and rehire, it will emphasize that it should be used as a last resort.

Risks of fire and rehire

Employers relying on fire and rehire practices face several risks, including:

Unfair dismissal claims: Employees may bring claims under the Employment Rights Act 1996.
Reputational damage: Poor handling of dismissals can harm brand reputation and employee morale.
Legal costs and disputes: Tribunal claims are costly, time-consuming, and disruptive.

To mitigate these risks, employers should prioritize transparent communication and consultation with employees to build understanding and reduce the likelihood of legal challenges.

Zero-hour contracts: Labour’s proposals

Labour has also promised to restrict the use of zero-hour contracts, which have faced criticism for their potential misuse by employers. Despite their flexibility, zero-hour contracts can leave workers without guaranteed hours or stable income.

What Labour plans to change

Curtailed use: While zero-hour contracts will not be completely banned, stricter regulations will apply.
Standard contracts: Workers with regular hours for 12 weeks or more must be offered a standard contract.
Worker choice: Labour claims workers can choose to remain on zero-hour contracts, but concerns remain that employers may pressure workers to do so.

Upcoming legislation on predictable work patterns

Regardless of Labour’s plans, employers should prepare for the Predictable Work Pattern Rights legislation, expected to take effect in September 2024. This will allow employees and agency workers to:

Request a predictable work pattern after 26 weeks of service.
Submit two applications within a 12-month period.

Best practices for employers

Employers are encouraged to consider alternatives to zero-hour contracts, such as:

Part-time contracts: Provide guaranteed hours for greater stability.
Annualised hours contracts: Offer flexible working patterns based on yearly commitments.
Fixed-term contracts: Suitable for seasonal work with clear end dates.
Overtime and training: Upskill existing staff to cover temporary or additional workloads.

By adopting fair and transparent employment practices, businesses can improve employee satisfaction, enhance their reputation, and reduce legal risks.

For further advice on how these changes may impact your business, contact our employment law team today.

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.