Monthly Highlights – UK Employment Law – July 2024

Here is a look at recent developments in UK employment law:

1. The Labour Party has proposed key changes to UK employment laws.
2. The Employment Appeal Tribunal considered whether an employer was justified in printing documents in small print.
3. An Employment Tribunal heard a case where an employee was dismissed for refusing to remove intentionally provocative preferred pronoun language from an email signature.

The Recent Developments in More Detail

1. The Labour Party has proposed key changes to UK employment laws.

The Labour Party won a substantial majority in the UK General Election on 4 July 2024. In the lead up to the election, the Labour Party proposed extensive reforms to UK employment law. Legislation is expected to be put before Parliament in the first 100 days of the Labour Party’s entry into government and so finer details of the proposals should soon become clearer.  In the meantime, we highlight below the key proposals that employers should be aware of.

• Unfair Dismissal Rights

  Labour has proposed giving all workers unfair dismissal rights from their first day of employment. Currently, employees need to have worked for their employer for two years to qualify for this protection. Whilst this will be a significant change, Labour has stated that it will be possible for employers to fairly dismiss employees during their probation period.  Whilst Labour has not provided further details on how this change will operate in practice, it is likely that we will see a significant increase in the number of tribunal claims.

  Whilst we await further details, employers should consider tightening their recruitment decisions to ensure they hire the correct candidate and that all new hires are subject to a suitable probationary period. That said, we envisage a maximum length on probationary periods (to avoid employers extending probationary periods beyond unreasonable limits). The extent to which employers can rely on probationary periods is unclear.

• Fire and Rehire

  Labour has promised to clamp down on the practice of “fire and rehire,” a tactic employers often use when employees refuse to agree to proposed changes to their terms and conditions. The employee is dismissed and reengaged, but often on less favourable employment terms. Labour has stated this practice will only be allowed as part of a restructuring for a business to remain viable and preserve its workforce when there is no alternative solution. Labour has said it will replace the Code of Practice on ‘fire and rehire’ (which came into force on 18 July 2024) with a stronger version. Further details are unknown.

• Collective Consultation

  Currently, UK employers must follow a collective consultation process when proposing to make at least 20 redundancies in a single establishment (often interpreted as one workplace) within a 90-day period. However, Labour is proposing to strengthen this protection so the threshold is based on the number of people impacted across the employer’s entire business, rather than within each specific establishment or worksite. This will no doubt increase collective consultations when employers are proposing to make 20 or more job roles redundant.

• Zero hours Contracts

  Labour has proposed banning zero-hour contracts to ensure  workers have the right to a contract that reflects the number of hours they regularly work. However, it has been reported that such contracts will be allowed in certain circumstances, and so this is not a total ban. Whilst many employers are already moving away from zero-hours contracts, companies in other sectors use them more regularly – a practice they may want to reconsider.

• Right to Disconnect

  Labour has stated it plans to implement a new “right to switch off,” which would give UK employees the right to disconnect after working hours and not be contacted by their employers. Similar rights have been introduced across Europe in the past few years, with France leading the way in 2017 and Ireland, Germany, Italy, Denmark and Belgium following suit.

• Single Status of Worker

  Currently, UK employment laws recognise three status classifications – employees, workers and self-employed. An individual’s status determines the statutory employment rights to which they are entitled to (if any).  However, Labour plans to create a single tier where individuals are either workers or self-employed, removing the current distinction between employees and workers.

  Under this proposal, it seems that workers will benefit from unfair dismissal rights (a protection currently only available to employees) and so we will likely see an influx of tribunal claims. Further, creating a single tier of employment status is complex both in terms of employment legislation and tax considerations. It will likely require detailed planning and consultation before being implemented.

• Family friendly rights

  Whilst UK employment law already provides for extensive family leave rights, Labour has stated it will make the following enhancements:

  • Parental leave will become a day-one right. It entitles parents with at least one years’ service to take up to 18 weeks of unpaid leave for each child until the child is 18.
  • It will be unlawful to dismiss a woman during pregnancy or within six months of her return to work following maternity leave, other than in specified circumstances. This would build on existing protections.
  • Entitlement to bereavement leave will be extended to all employees. Currently, employees do not have a statutory right to paid time off when someone dies unless they are entitled to parental bereavement leave.

• Tribunal time limits

  Labour is proposing to increase time limits for all Employment Tribunal claims to six months (many are currently three months) from the day of the alleged act.

  This will mean that the time limits for all Employment Tribunal claims will be in line with the current six-month limit for statutory redundancy and equal pay claims.

  The extension of time limits will likely result in a substantial increase in the number of Employment Tribunal claims. So will proposals to include workers in the pool of individuals protected from unfair dismissal and to make unfair dismissal protections a day-one right.

  It seems that this proposal will result in further delays to litigation timeframes (noting that the UK Employment Tribunals are already backlogged, with hearings being listed one year after the claim is lodged). Nevertheless, the backlog and lengthy timeframes may result in an increase in the number of claims settled.

2. The Employment Appeal Tribunal considered whether an employer was justified in printing documents in small print.

In Hilton-Webb v Minis Childcare, the Employment Appeal Tribunal considered whether an employer could justify a requirement/practice of printing documents in small font sizes, which may disadvantage certain individuals. 

The Facts

• The claimant was disabled due to having Apert Syndrome, which affects her vision.
• The respondent had a practice of printing documents in small font (between 10-12) for reasons of management efficiency. However, due to the claimant’s vision, she needed documents printed in a font size of at least 18.
• The claimant brought a claim in the Employment Tribunal for disability discrimination.
• The Employment Tribunal held that the respondent had indirectly discriminated against the claimant and had “no objective justification” or “legitimate aim” for printing documents in small font.
• The respondent appealed to the Employment Appeal Tribunal.

The Employment Appeal Tribunal’s Findings

The Employment Appeal Tribunal held that the Employment Tribunal did not state the reasons why it concluded there was no legitimate aim to print documents in small font. Indeed, the respondent had explained that the company used small fonts for efficiency. As such, the Employment Appeal Tribunal upheld the appeal and remitted the case to the Employment Tribunal to be redetermined.

Key Takeaways

Employers should consider the rationale behind any requirements, practices and/or policies and consider whether they disadvantage people based on a protected characteristic. In considering the rationale, employers should consider:

• The aim of the requirement, practice and/or policy.
• Whether the aim is proportionate to the disadvantage potentially suffered by certain individuals.
• Whether any alternative means could achieve the aim that removes or lessens the potential disadvantage.

3. An Employment Tribunal heard a case where an employee was dismissed for refusing to remove intentionally provocative preferred pronoun language from an email signature.

In Orwin v East Riding of Yorkshire Council, an Employment Tribunal considered whether an employee had been directly discriminated against for his gender critical beliefs. The employee was dismissed for refusing to remove an email signature using preferred pronouns that was intentionally provocative.

The Facts

• The respondent introduced a policy that let staff add pronouns to their email signatures.
• The claimant objected to this policy, arguing that it promoted a political ideology of self-identification with which he disagreed. The claimant added the following wording to his email signature “XYchromosomeGuy/AdultHumanMale."The claimant was dismissed after ignoring multiple requests from the respondent to remove this wording.
• The claimant brought claims against the respondent for direct discrimination, unfair dismissal and wrongful dismissal. Indeed, the claimant believed his views, including that sex is biologically immutable, were protected under the Equality Act 2010.
• The Employment Tribunal rejected the claims. Whilst it held that the claimant’s gender-critical beliefs are a philosophical belief within the meaning of Section 10 Equality Act 2010, it held the claimant was not dismissed for his beliefs, but for taking a deliberately provocative action to try to persuade the respondent to change its policy.

Key Takeaways

The Employment Tribunal stated that the implementation of the respondent’s policy was “poorly thought through and badly executed.” Indeed, the policy guidance was vague and allowed the claimant to adopt the position he did.

When implementing such a policy, employers should ensure it clearly outlines what is acceptable (i.e. what the email signature can and cannot include).

Employers also should be aware of gender critical beliefs in the workplace, particularly where there is a conflict between rights, such as gender critical and gender affirmative beliefs. Indeed, employers should acknowledge both sides and refrain from supporting one side.