Monthly Highlights – UK Employment Law – May 2024

7 minute read | June.03.2024

Key developments in UK employment law in May included an Employment Appeal Tribunal finding that a volunteer can be a worker if they are entitled to be remunerated. The Employment Appeal Tribunal also held that a trivial factor can amount to “something arising” from disability. Parliament has rushed through a Private Members’ Bill to propose the introduction of reformed rights to bereaved fathers and parents. The UK general election will be held on 4 July 2024, which could see proposed reforms to UK employment laws. Here’s a look at those developments in more detail.

1. The Employment Appeal Tribunal held that a volunteer can be a worker if they are entitled to be remunerated for their activities.

In the case of Groom v. Maritime and Coastguard Agency, the Employment Appeal Tribunal found that a volunteer was a worker when they were attending activities for which they were entitled to remuneration.

The Facts

The claimant volunteered for the respondent in relation to its civil maritime search and rescue efforts and brought a claim in the Employment Tribunal on the basis that a trade union representative was not permitted to accompany him to a disciplinary hearing. He argued that he was a worker under section 230(3)(b) of the Employment Rights Act 1996.

The respondent engages approximately 3,500 volunteers governed by a volunteer handbook. The handbook referred to the voluntary nature of the appointment and set out the expectations of volunteers, including that they would attend training and “maintain a reasonable level of incident attendance.” For certain activities, volunteers could claim minor costs, for example to compensate them for the disruption to their personal life as well as to recognise that they attended emergency requests for search and rescue volunteers during unsociable hours, often at dawn or dusk.  

The Employment Tribunal concluded that the claimant was not a worker because there was no contract between him and the respondent, insofar as there was no automatic right to remuneration and many volunteers did not seek remuneration. The Employment Tribunal held that the agreement between the parties was voluntary. The claimant appealed.

The Employment Appeal Tribunal upheld the appeal and rejected the argument that a volunteer relationship is unique. It pointed out that there is no statutory or legal definition of “volunteer” and that volunteer status will differ depending on the particular arrangement between the parties. It concluded that a contract came into existence when a volunteer attended an activity for which they had a right to remuneration. A volunteer’s attendance was governed by a Code of Conduct that set minimum levels of attendance at training and a minimum number of search and rescue efforts that had to be undertaken by the volunteer. Those factors gave rise to a contract for the provision of services, not a collateral contract for the reimbursement of expenses incurred.

Key Takeaways

The Employment Appeal Tribunal’s decision gives some helpful reminders about engaging with volunteers:

  • The use of the word “volunteer” in documentation is not determinative; a court or tribunal can and will look at the actual working arrangements to determine the true status.
  • Payment of anything over and above actual expenses incurred can result in a finding of worker status.
  • A requirement to attend certain activities or attend a certain number of volunteering sessions can result in a finding of worker status.

2. The Employment Appeal Tribunal held that a minor contributing factor could amount to “something arising” from disability.

In the case of Bodis v. Lindfield Christian Care Home Ltd., the Employment Appeal Tribunal held that there had been discrimination arising from a disability under Section 15 of the Equality Act 2010. The case involved circumstances where, in deciding to refer an employee with depression and anxiety to a misconduct disciplinary hearing, the employer had taken some account of the manner in which she answered questions in the investigation, due to her disability, although only to a “trivial” extent.

The Facts

The claimant was disabled with anxiety and depression. After an investigation into a series of disruptive incidents, the claimant was subject to disciplinary proceedings because, amongst other things, she was the only employee on duty when all of the incidents occurred, and she had given short and evasive answers in her investigation meeting in relation to such incidents. The employee was dismissed following a disciplinary hearing. She brought a claim of disability discrimination, arguing that her disability contributed to her dismissal as her short and evasive answers were due to her anxiety and depression.

The Employment Tribunal accepted that the blunt and evasive answers provided by the claimant during the investigation arose in consequence of her disability. It also held that this had influenced the employer’s decision to take the matter to a disciplinary hearing, which ultimately resulted in her dismissal. However, as this had only been a “trivial” influence and not the “effective cause,” the Employment Tribunal held that the decisions taken did not arise from her conduct and that other factors were more important.

The Employment Appeal Tribunal disagreed. Indeed, to establish liability for discrimination arising from a disability, the unfavourable treatment does not need to solely or principally be because of “something arising” from the disability. Instead, it can be a minor factor provided there is sufficient causal link to the action taken by the employer.

Key Takeaways

This case highlights that an individual’s conduct arising from a disability, even if a minor contributing factor to a decision taken by their employer, can still amount to discrimination arising from a disability under the Equality Act 2010. Employers should take caution when considering any behaviours that might arise from the disability when deciding whether to take disciplinary action.

3. The Paternity Leave (Bereavement) Bill received Royal Assent.

On 24 May 2024, following the swift passage of the Private Members’ Bill through Parliament, the Paternity Leave (Bereavement) Act 2024  was introduced. If it becomes law (through amendments to the Employment Rights Act), it will provide for the following:

  • Bereaved fathers and partners will have a “Day 1” employment right to paternity leave in cases where the child’s mother (or primary caregiver in cases of adoption) dies, thus removing the continuous service requirement generally applicable to paternity leave.
  • Such paternity leave can be taken even if the parent has already started or taken periods of shared parental leave.
  • In cases where the child also dies (or the adoption is reversed/ disrupted), paternity leave can still be taken despite the parent not meeting the usual requirements that such leave can only be taken to care for the child or support the mother/ primary adopter.
  • Employee is entitled to keeping in touch days during a bereaved parents’ paternity leave.

The act will come into force by commencement regulations, which have not yet been published. Once the act becomes law, employers should be aware of this right and may also wish to update Employee Handbooks or Policies to mirror the statutory regime.

4. The general election could reform UK employment laws.

The UK general election will be held on 4 July 2024. Whilst the Conservative Party has not yet published its plans for future employment law if reelected, the Labour Party has announced a number of proposals that will impact employment laws. The key changes are likely to include:

  • More “day one” rights, including the right not to be unfairly dismissed (this is currently available to employees after two years’ service).
  • A right to disconnect from work.
  • Ending the practice of fire and rehire.
  • A ban on zero-hour contracts (unless an individual specifically requests one).
  • Extending the three-month time limit for claims of unfair dismissal in the Employment Tribunal (although it is not yet clear by how long it is thought to be at least six months).

If implemented, Labour’s proposed reforms would represent the most significant change to UK employment law in decades. Further updates will be provided after the general election.