Spring employment law round up

02 March 2023 Written by Ware & Kay Solicitors Category: Employment advice

"Other than the usual April updates to statutory rates, it looks deceptively quiet on the regulatory front for employers. But the end of the year could see the biggest shake-up in employment law for years as a consequence of Brexit," explains Kalpesh Nakeshree, Head of Employment Law with Ware & Kay.

Kalpesh highlights the key changes to rates, and looks at the extra bank holiday, a raft of private members’ bills aimed at seeing through earlier government commitments, a consultation on a statutory code on ‘fire and rehire’ and a couple of topical cases.

Increase in statutory rates

Employers should prepare for increases on the following dates:

1 April 2023 – national minimum wage

Increase in the national living wage for workers aged 23 and over from £9.50 to £10.42 per hour.
Increase in the national minimum wage for workers aged at least 21 but under 23 from £9.18 to £10.18 per hour.
Increase in the national minimum wage for workers aged 18 but under 21 from £6.83 to £7.49 per hour.
Increase in the national minimum wage for workers aged 16 or 17 from £4.81 to £5.28 per hour.
Increase in the apprentice rate from £4.81 to £5.28 per hour.

2 April 2023 – family-related statutory pay

The rates of statutory maternity pay, statutory paternity pay, statutory adoption pay, statutory shared parental pay, and statutory parental bereavement pay, increase from £156.66 to £172.48 per week.

6 April 2023 – statutory sick pay

The rate of statutory sick pay increases from £99.35 to £109.40 per week.

May bank holidays

A bank holiday to celebrate the King’s Coronation on 8 May 2023 brings the total to three in the month. We can review your contracts of employment to see if your staff are entitled to a paid day off.

New employment laws through private members bills

The past few years have seen a number of government commitments fail to reach the statute books. These are now being pursued through private members’ bills and the government is currently backing several of these, which means they have a good chance of becoming law. These include:

introducing a duty on employers to protect employees from sexual harassment;
requiring employers to pass on all tips to workers;
giving zero-hours workers the right to request a more predictable working pattern;
introducing one week’s unpaid leave for carers;
granting neonatal leave for parents whose babies spend time in neonatal care units;
changing the regime for requesting flexible working in the employee’s favour; and
extending the protection given to employees on maternity leave during a redundancy situation to cover pregnancy and after the return to work.

‘Fire and rehire’ code

Other possible changes include the introduction of a new statutory code on ‘fire and rehire’. The code sets out the procedure that employers should follow when trying to bring about changes to terms and conditions that could result in employees being dismissed and offered new terms and conditions. Consultation on the draft code closes on 18 April 2023.

Sunset on European employment law

Finally, the end of the year could see significant changes in employment law. When the UK left the EU, European law was ‘retained’ or incorporated into our legal system. The Retained EU Law (Revocation and Reform) Bill will have the effect that unless specifically retained by government, a significant amount of UK legislation based on EU laws will expire after 31 December 2023. This is referred to as the ‘sunset’ provision. Government figures currently indicate 3,700 pieces of affected legislation, but this is considered by many to be an incomplete list.

In the employment context, this means that rules on working time, protection of part-time workers and employment rights following the transfer of a business could be affected. The new law would also affect how far tribunals and courts have to follow pre-Brexit European case law. Although the possible move towards weakening employment rights will be welcomed by some, others are concerned about the uncertainty these changes could bring.

Case note: Unfair dismissal for racist tweets

In Weller v First MTR South West Trains [2023], Mr Weller was dismissed for posting racist tweets on his private Twitter account, which he knew was followed by colleagues. During the investigation stage, he deleted his account and then claimed it had been hacked. Even though he was using his personal account, his conduct was prohibited under the company’s social media policy. Although this is only a tribunal case, it provides useful reminders:

Firstly, have a well-drafted social media policy.
Secondly, ensure the policy or contract states that a breach can be gross misconduct.
Finally, ensure that you can prove the employee was made aware of the social media policy.

In this case, the company did not have a record of Mr Weller being given the policy. The tribunal found Mr Weller was unfairly dismissed. It also found he had contributed 100 per cent by making the tweets, by deleting the account, then lying about his account being hacked. The employer found evidence after the dismissal that he had been briefed on the policy. He received no compensation.

Case note: Employee’s refusal to use preferred pronouns

In Mackereth v Department for Work and Pensions [2022], Dr Mackereth was a doctor who assessed disability-related benefits claimants. He is a Christian and he explained at his induction that he would not call transgender claimants by their chosen pronoun, believing that the Bible prevents people from changing their gender given at birth. The Department for Work and Pensions (DWP) explored whether there was a role Dr Mackereth could perform that did not put him in conflict with their policy on using a claimant’s preferred pronoun. Before the DWP reached a finding, Dr Mackereth resigned and claimed discrimination because of his religion.

The Employment Appeal Tribunal (EAT) held that his belief that a person cannot change their gender at will was a protected belief under the Equality Act 2010. However, by asking him about his beliefs, his employer had not put him under any pressure to renounce his beliefs and no final decision had been reached. As such he had not been discriminated against. The EAT recognised that there were particular sensitivities that would arise from face-to-face interactions with claimants and the DWP had the legitimate aim of ensuring that the service users were treated with respect and in accordance with their rights under the Equality Act 2010.

The lesson for employers is that individuals may have conflicting rights under the Equality Act 2010. Employers need to carefully balance these conflicting rights. We can help you with this balancing act and ensure you have a sound audit trail to defend any claims.