It’s been quite the year

Written by Robert Holland, Partner and Head of Employment Law

Robert Holland, Head of Employment Law at Aberdein Considine, provides the Journal with a look back at what was a momentous year for employment law and highlights what is on the horizon for 2025.

A recurring headline in many walks of life is that there has been a ‘once in a generation’ event, not to be missed or repeated. Often this is hyperbole but not when used in connection with the developments we have seen in Employment Law in 2024.

The change in government at Westminster saw Labour bring in legislation to back their manifesto plans to ‘make work pay’ with their Employment Rights Bill introduced just before the promised 100-day deadline (day 98) in October, followed quickly by headline changes to employer NI contributions and minimum pay levels as part of their first budget at the end of the same month.

The Employment Bill saw 28 measures introduced in what are undoubtably the most significant changes to substantive law within the employment and HR space for 25 years. Alongside these changes was a development in the number of Supreme Court rulings backing the rights of workers over employers, perhaps reversing the trend of recent years. The current legislation could therefore be seen as giving government backing to the recent judicial decisions and obiter comments on the balance of power in the workplace. We look at the most notable below.

Unfair dismissal

The right of employees to unfair dismissal rights from day one, removing the two-year cap, was probably the one highlighted most by lay observers, but it is still subject to extensive consultation on whether a ‘light touch’ regime will prevail during an initial probationary period, probably extending to a period of nine months. This could mean that a meeting is the only procedural requirement, provided the employer still has a ‘fair’ reason for dismissal in the first place. More will become clear during the committee stage of the bill, but already we see plans for a six-month limitation period for claims, doubling the current period.

Zero hours contracts

While many expected zero or ‘low hours’ contracts to be abolished, this has not happened, rather additional rights have been passed to workers, including the right to notice of a shift pattern and the right to guaranteed hours. The former is commendable but the latter may see employers using flexible workforces struggle with the administrative burden. How often must hours be offered? And at what rate? A period of every 12 weeks has been mooted. Agency workers are currently not included, but the bill leaves it open for them to be included at a later date with the potential for confusion as to who bears liability, between the employment agency and the end user.

Fire and rehire

HR managers and employment lawyers will be looking closely at the changes to the right to ‘fire and rehire’, a practice commonly used where an employee will not agree to new terms, often reduced from their current position. The bill makes it automatically unfair to dismiss an employee for refusing to agree a change in terms or to replace with another employee on varied terms to carry out a new role. Most observers agree this was done to back the decision in USDAW and others v Tesco Stores ltd 2024, where the Supreme Court decided to imply a term precluding the right of Tesco to dismiss distribution workers for the purposes of removing a pay enhancement. Expect more tribunal challenges to ‘fire and rehire’ in 2025.

Collective rights boost

Given the traditional backing of the unions, it came as no real surprise that new legislation on collective action has been one of the headlines. This also came in the wake of probably the leading Labour law judgement of 2024, namely that of Secretary of State for Business and Trade v Mercer, where the Supreme Court ruled that an employer can no longer subject workers to a detriment for taking part in ‘industrial action’, which had been exempt from protection since the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). In doing so, the Supreme Court made a declaration that the current legislation was incompatible with the European Convention on Human Rights (ECHR), perhaps highlighting that body’s continued relevance in law-making within employment law.

Additional changes saw significant reduction in thresholds for strike action, and a practical change for employers where all new employees will require to be informed of their right to join a trade union. HR managers will be frantically changing their induction programmes to ensure that is included in the obligatory starter’s pack on day one.

New anti-harassment law

October was not a time to be on leave, with the 26^th of the month seeing the introduction of the Worker Protection Act 2023 (amendment of Equality Act 2010). This significant piece of legislation saw new duties on employers to take reasonable steps to protect their workforce from sexual harassment, including from third parties. Employers now have a duty to anticipate when sexual harassment may occur and to take reasonable steps to prevent it. Already, HR handbooks are being substantially revised and risk management policies updated to accommodate the legislations.

Although the Employment Rights Bill makes sweeping changes, both HR professionals and employment practitioners should be aware that the commencement dates of the initial legislation are unlikely to be before July 2025, with the majority of the statutory provisions coming into effect in 2026. There is therefore still some time for all concerned to get their heads around the new rights and obligations.

Case law round-up

Away from the Employment Bill, 2024 saw a number of decisions across the spectrum of employment law. In Wright-Turner v London Borough of Hammersmith & Fulham, a senior employee was awarded £4.6 million for disability discrimination and harassment suffered during both her recruitment and initial probation period. The claimant suffered from both PTSD and ADHD. The former had resulted from her previous work with residents impacted by the Grenfell Tower fire. There was a dispute over disclosure of these conditions within her application. Eventually, her probation period was extended and she went off sick. She was dismissed some three months later.  According to the tribunal, both the decision to dismiss and to extend probation were tainted by discrimination. While the quantum alone will no doubt be subject to appeal, it reminds employers of the importance of treading carefully where an employee has a qualifying health condition or related illness.

Closer to home, the case of RD Adams v Edinburgh Rape Crisis Centre found that Adams, a counsellor at the Rape Crisis Centre, had been unlawfully discriminated against and constructively dismissed for her gender critical beliefs. While Adams was supportive of trans people, she also believed that victims of sexual violence should have a choice of whether they wished to engage with male or female workers. One of Adams’ colleagues, referred to as AB, announced that they were nonbinary and changed their name to a masculine-sounding name. Subsequently, a rape victim emailed to ask if AB was male or female, explaining they felt uncomfortable speaking to a male counsellor about their situation. Adams emailed her line manager and copied in AB, suggesting that “AB is a woman at birth who now identifies as non-binary”. Adams received a strongly worded response from the CEO, advising her email was inappropriate and it was for individual counsellors to disclose their identity. When AB then contacted the CEO to say she felt humiliated by the proposed response, the CEO implied Adams was homophobic. A flawed investigation then followed, following which Adams resigned, citing the fact she no longer felt safe due to her views on gender. The tribunal found that the reaction to the initial email was vastly overblown and that Adams had been subject to detriment on the grounds of discrimination and had been constructively dismissed.

Finally, readers will be interested to know that commenting that someone of ethnic Japanese origin “enjoyed sushi” was not held to be discriminatory on the grounds of race and origin. The judge of this claim against the University of London found that in fact, colleagues were simply trying to find a point of interest or conversation, admitting it may have been clumsy.

What to look out for in 2025

Once we have all had time to digest 2024, the new year shows no break in the current stream of legislative and statutory changes.

The Neonatal Care (Leave and Pay) Act 2023 is due to be introduced in April 2025, giving a new form of statutory protection for those employees who have a parental relationship or caring relationship with a child undergoing neonatal care. The exact specifics of the Bill are awaited.

April 2025 will also of course see the arrival of the increase in employer National Insurance Contributions (NICs), rising from 13.5 to 15% and new minimum pay levels for National Living Wage and National Minimum wage from 1^st April, giving employers a headache with an increased payroll.

Other bills to look out for include the Pensions (Extension of Automatic Enrolment) Act 2024, which as the name suggests will amend the current automatic enrolment provisions for new employees, and also significant changes to data protection rules in the Data (Use and Access) Bill 2024, likely to see much more scrutiny in 2025.

If you throw in the creation of a single enforcement agency and the potential for a ‘single status’ of employee/worker, there will certainly be enough work to keep employment specialists going well into the new year and beyond.

We wish all readers the very best for 2025 and good luck with the challenges ahead!

Written by Robert Holland, Partner and Head of Employment at Aberdein Considine