Legal News

These changes mean that the general position for applications would appear to be as follows: Co S dated 4 April 2024 to 10 July 2024: apply rates in HC 590 Co S dated 10 July 2024 to 7 October 2024: apply rates in the guidance Co S dated from 8 October 2024 onwards: apply rates in HC 217 As some rates differ markedly, it is hoped that transitional measures on extensions will be introduced in due course. For additional background, see: LNB News 12/09/2024 15. For links to the relevant guidance, see: LNB News 12/08/2024 32. Also note that Table 3 ( Eligible health and education SOC 2020 occupation codes where going rates are based on national pay scales) shows a lower going rate for SOC 2020 code 2253 Dental practitioners ( Scotland) for Dental foundation training ( Hospital dental services), known as Vocational Training in Scotland: £37,361, down from...

In this issue: Employment contract Horizon scanning Pensions Tax Prohibited conduct (discrimination etc) Data protection and employee information Dates for your diary Trackers New Q& As Employment resources on Lexis+® Daily and weekly news alerts Employment contract Supreme Court reinstates High Court injunction preventing Tesco from ‘firing and rehiring’ employees on less favourable terms. In Tesco Stores Ltd v Union of Shop, Distributive and Allied Workers ( USDAW) [2024] UKSC 28, the Supreme Court, unanimously and led by Lord Burrows and Lady Simler, upheld the High Court’s stance, reviving the injunction that bars Tesco from dismissing staff in order to strip them of a ‘permanent’ contractual entitlement to retained pay, then proposing re‑engagement without it. An implied term in the contracts curtailed Tesco’s ability to rely on dismissal rights for that end....

Pryce v Accountant in Backruptcy , ET Case No: 6000082/2022 John- Paul Pryce obtained a declaration from the Employment Tribunal that Accountant in Bankruptcy, Scotland’s debt management agency, had failed to make a reasonable adjustment for his agoraphobia, claustrophobia, anxiety and mysophobia (an extreme and irrational fear of germs) when it rejected his request for flexible working arrangements. Judge Mark Whitcombe, writing on behalf of a three-person panel, noted that Pryce’s phobias were so intense that even thinking about the idea of being indoors with other people could set off a panic attack......

Meanwhile, Amazon staff are set to seek formal recognition for their union, in a battle likely to rank among the year’s most scrutinised industrial disputes. Law360 surveys what to watch for through the rest of 2024. The Employment Rights Bill Employers should, lawyers say, start preparing now for the sweeping legislation pledged by the new Labour government within its first 100 days in office. Advisers report they are already guiding clients on plans to legislate ‘day one’ rights to sick pay, parental leave and—perhaps most importantly—the ability to bring an unfair dismissal claim. Measures defining what workers can expect from their first day of employment, alongside other entitlements, are expected by mid- October 2024. Addressing businesses considering the dismissal of difficult employees, Yvonne Gallagher, a partner at Harbottle & Lewis LLP, urged them to act promptly rather than wait for the autumn. The...

The IFS cautioned that roughly five to seven million savers—amounting to as much as 40% of private‑sector workers—are on course to reach retirement with inadequate pension provision unless the government accelerates reforms to automatic enrolment legislation. Yet the IFS also noted that across‑the‑board rises in minimum pension contributions could be a tougher proposition for those on lower incomes. Nonetheless, numerous commentators continue to advocate universal increases to minimum contribution thresholds. Far too many private‑sector employees still appear set to end up......

In this edition: Employment contract Pay Protected characteristics Prohibited conduct (discrimination etc) Prohibited conduct protection at work Equality of terms (equal pay) Employment Appeal Tribunal Governance and regulatory Immigration Dates for your diary Trackers New Q& As Employment resources on Lexis+® Daily and weekly news alerts Employment contract UKSC upholds claimants’ appeal and restores injunction in Tesco ‘fire and rehire’ case In Tesco Stores Ltd v Union of Shop, Distributive and Allied Workers ( USDAW) [2024] UKSC 28, Tesco moved to end employees’ contracts to remove their ‘retained pay’—a contractual financial entitlement accepted as permanent—and to offer re-engagement on new terms excluding that pay. Working with the union, USDAW, several employees obtained a High Court injunction restraining Tesco from dismissing them in order to take away the retained pay entitlement. The Court of Appeal, however, allowed Tesco’s appeal against that order. The Supreme Court has since backed the claimants’ appeal and reinstated the injunction......

Torres v Apple ( UK) Ltd , ET case number 2212766/2023 Employment Judge Emma Webster, in ET case number 2212766/2023, concluded that the claimant, identified only as E. M. Torres, failed to show that Apple’s office attendance policy amounted to sex discrimination, whether direct or indirect. It was, the tribunal accepted, a valid objective for the technology giant to seek to minimise tax exposure from overseas work. In addressing the direct sex discrimination allegations, the tribunal wrote that it had not been given any evidence indicating the incidents happened because of the claimant’s sex. Torres worked for Apple in a variety of roles across eleven years. She had been based in Madrid when, in 2021, she accepted a new position based in London for that role......

Representatives for over 60,000 Asda shop employees, the majority of whom are women, urged the employment tribunal to rule that their roles are at least equivalent in value to those undertaken by warehouse staff. Andrew Short KC of Outer Temple Chambers, acting for the claimants, said every role supports Asda’s aim of ‘getting goods to customers so that customers can buy them’. He argued Asda assigns more weight to stewardship of goods than to care for customers and therefore ‘undervalues’ the contribution of predominantly female retail workers. According to the GMB union, the hearing, set to run for three months, will examine whether shop floor teams are unlawfully paid up to £3.74 an hour less than colleagues in depots. The dispute concerns equal value across the firm......

Thomas v (1) Surrey and Borders Partnership NHS Foundation Trust (2) Brett [2024] EAT 141 Steven Thomas’s appeal failed, with the EAT upholding an employment tribunal’s finding that his English nationalist belief, which encompassed anti- Islam views, was not protected by the Eq A 2010. The underlying ruling was made at a preliminary hearing in his claim against an NHS trust, following the termination of his employment after three months. Judge Clive Sheldon KC recorded that the claimant advanced a strand of English nationalism asserting there is no place in British society for Muslims or for Islam itself. He emphasised that the claimant is free to hold such views, but cannot rely on them to found a complaint of discrimination. Sheldon J also clarified that English nationalism, in principle, can amount to a legally protected philosophical belief. The appeal was dismissed, leaving the...

In this issue: Employment contract Tax Prohibited conduct (discrimination etc) Equality, diversity and inclusion Maternity, parents and carers Data protection and employee information Lex Talk®Employment: a Lexis®Nexis community Dates for your diary Trackers New Q& As Employment resources on Lexis+® Daily and weekly news alerts Employment contract Labour drops predictable hours legislation to pursue stronger right The new Labour administration has shelved plans that would have allowed staff to request a more predictable working pattern, opting instead to advance a tougher contractual entitlement to the hours they typically work. See Law360: Labour drops predictable hours legislation to pursue stronger right. TUC survey highlights importance of government plans on zero-hours contracts The Trade Union Congress ( TUC) has shared polling on zero-hours contracts, finding that 84% of workers on these terms want stable, full-time hours, and 75% say they are...

Upper Tribunal allows HMRC IR35 appeal ( HMRC v S& L Barnes Ltd) HMRC v S& L Barnes Ltd [2024] UKUT 262 ( TCC) The company arranged for B to deliver services to a variety of media organisations, among them the Times, the Sunday Times and multiple broadcasters. The appeal focused on two agreements spanning 2013 to 2019, under which the company supplied B’s services to Sky TV. Revenue from these engagements accounted for roughly 60% of the company’s takings, with most of the remainder arising from newspaper column work. The FTT applied the three-limb test from Ready Mixed Concrete ( South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 to the hypothetical agreement between Sky and B. Both parties accepted that the first two limbs—mutuality of obligation and control—were met, leaving the third limb as the principal point in...

Bilfinger Salamis UK Ltd v HMRC [2024] UKFTT 736 ( TC) The appellant, Bilfinger UK, had originally provided services to an operator of North Sea oil platforms using its own staff. The structure was later altered to an offshore employment model intended to sidestep employers’ NICs. Under this arrangement, the core Bilfinger UK workforce was moved to a Guernsey entity, Bilfinger Guernsey, which then supplied that labour back to Bilfinger UK. That team continued working on the platforms, taking direction from Bilfinger UK, in order to discharge Bilfinger UK’s contract with the platform operator. The question for the FTT was whether paragraph 9 of Schedule 3 to the Social Security ( Categorisation of Earners) Regulations 1978, SI 1978/1689 (para 9) applied so that, notwithstanding the core team being employed by a foreign ( Guernsey) employer, Bilfinger UK was the party liable for...

In this issue: Immigration Benefits Tax Equality of terms (equal pay) Whistleblowing Industrial action Dates for your diary New Practice Notes New Q& As Employment resources on Lexis+® Daily and weekly news alerts Immigration Home office reports on rogue employers targeted in illegal working crackdown The Home Office has revealed that hundreds of rogue employers across the UK were targeted during a nationwide, week-long intensive operation focused on illegal working. The Home Secretary, Yvette Cooper, stated last month that the government will step up action against businesses unlawfully hiring migrants and exploiting vulnerable people, together with broad measures to dismantle the criminal networks that bring these workers to the UK. See: LNB News 27/08/2024 31. Benefits Company cars: advisory fuel rates from 1 September 2024 HMRC has issued updated advisory fuel rates for company cars with effect from 1...

Erhard- Jensen Ontological/ Phenomenological Initiative Ltd v Rogerson [2024] EAT 135 The Employment Appeal Tribunal ( EAT) held that the arbitration commenced in Singapore by the self-help charity, Erhard- Jensen Ontological/ Phenomenological Initiative Ltd, against its London-based employee, Daniel Rogerson, attracted judicial proceedings immunity. That immunity shields participants in legal processes from suits alleging their evidence was fabricated, spiteful or negligent, principally so courts may adjudicate free from external influence. In this case, the proceedings before a quasi-judicial body in the Southeast Asian city-state fell within that protection. As Mrs Justice Heather Williams explained, there is a 'strong public interest in ensuring harmony between English law and foreign jurisdictions in the context of foreign-seated arbitrations'. Accordingly, the EAT concluded the protection applied notwithstanding the overseas seat of the arbitration. It applies even where the seat is Singapore, as the EAT found......

Workers ( Predictable Terms and Conditions) Act 2023 The Department for Business and Trade ( DBT) has said it has 'no plans' to commence the Workers ( Predictable Terms and Conditions) Act 2023 in the autumn as previously anticipated. A DBT spokesperson said it will instead bring forward 'a new right to a contract that mirrors the number of hours regularly worked, as part of our significant and ambitious agenda to ensure workplace rights are fit for a modern economy'. ' We do not wish to confuse employers and workers with two different models', the spokesperson added, explaining the choice not to bring the law into effect; the Act received Royal Assent in September 2023. The 'number of hours regularly worked' will rely on a 12-week reference period. But it remains unclear whether this is a fixed or a rolling period, whether there is also a...

Thandi and others v Next Retail Ltd ( ET/1302019/2018) The tribunal held that over 3,500 sales consultants, the majority women, were entitled to assert that Next Retail Ltd acted unlawfully by paying them a lower basic rate than predominantly male warehouse staff. It found that sales consultancy and warehouse operations constituted equal work and should therefore have been paid at the same level. This was the first among various private sector retail equal pay claims to reach the final material factor defence stage and succeed. It concluded that Next’s approach of setting a lower basic rate for sales consultants than for warehouse operatives ‘placed women and the lead claimants at a particular disadvantage when compared with persons of the opposite sex’. The tribunal also found there was no direct sex discrimination. However, the policies contravened the law on indirect sex...

E Rodrigues and others v Royal Mail Group Ltd , Employment tribunal case number 1404078/2022 In a judgment published on 26 August 2024, the Employment Tribunal concluded that the postal employees’ claims had no realistic chance of success, owing to the UK Supreme Court’s ruling in Secretary of State for Business and Trade v Mercer [2024] IRLR 599, which confirmed that trade union legislation does not protect against detriments falling short of dismissal. On that basis, Employment Judge Rohan Pirani struck out every claim, including assertions that Royal Mail Group Ltd withheld sick pay and overtime payments after staff engaged in numerous strikes during 2022. The Tribunal’s decision flowed directly from the Mercer authority, leading to the dismissal of the claims in their entirety......

Mainpay Ltd v HMRC [2024] UKUT 233 ( TCC) Mainpay, an umbrella company, supplied the usual administrative and PAYE services to temporary workers whom it engaged and placed through employment agencies with end clients in hospitals and schools. It contended that, because those workers were engaged under a continuing, overarching contract (that is, a single employment), every site where they undertook assignments was a temporary workplace, so travel and subsistence were deductible from their earnings for tax. It also argued that, as each assignment was brief, the individuals could not be said to attend any workplace ‘regularly’, and therefore none could be permanent. HMRC’s position was that each assignment constituted a separate employment involving attendance at a permanent workplace, so reimbursed travel was taxable, leading to PAYE determinations and NICs decision notices (see News Analysis: FTT decides travel expenses paid to workers by an...

Fajri v Vantage Capital Markets Ltd ( ET/2209562/2023) Employment Judge Barry Smith, in a judgment issued in May 2024 with written reasons released on 15 August 2024, found that the agency broker acted reasonably in seeking a medical report before allowing Camelia Fajri to return to the workplace following chemotherapy. However, it overstepped by suspending her pay at the same time. The tribunal considered that a less discriminatory step was available; namely, continuing to pay up to three months’ salary while maintaining the requirement that the claimant remain away from work during the period in which the medical report and Financial Conduct Authority ( FCA) certification were being obtained. That alternative, the tribunal held, could and should have been adopted instead......

In this issue: Horizon scanning Part-time workers Prohibited conduct (discrimination etc) Whistleblowing Data protection and employee information Employment Tribunals Employment Appeal Tribunal Daily and weekly news alerts New and updated content Dates for your diary Trackers New Q& As Horizon scanning Business leaders and trade unions discuss plan to Make Work Pay. On 14 August 2024, the Deputy Prime Minister, the Business Secretary, business leaders and trade unions convened for a first meeting on the government’s Make Work Pay programme. The government reaffirmed that the Employment Rights Bill, pivotal to delivering the Labour government’s Make Work Pay promises, will be brought forward within 100 days of taking office. See: LNB News 15/08/2024 6. Part-time workers Part-time reservist denied entry to Armed Forces Pension Scheme wins discrimination claim. In Major C Milroy v Advocate- General for...