Read on for our monthly digest for employers on upcoming employment law changes and key, recent employment tribunal cases.
Protected Beliefs & Unlawful Discrimination
Thomas v Surrey and Borders Partnership NHS Foundation Trust
Mr Thomas was employed as an NHS consultant via an agency from April to July 2018 when he was dismissed for failing to disclose an unspent conviction. However, Mr Thomas believed the reason for his dismissal was his affiliation with the English Democrats party. On this basis, he brought an unlawful discrimination claim, asserting that his belief in English Nationalism should be protected under the Equality Act.
At a preliminary hearing, the Tribunal examined whether Mr Thomas’s beliefs qualified for protection under the Act, using the Grainger criteria; ie that the beliefs are genuinely held, pertain to significant aspects of life, are coherent and important, and are respectful of human dignity and others’ rights.
Mr Thomas argued that his belief in English Nationalism, promoting English identity for those living in England, met these criteria. However, during cross-examination and through his social media posts, it emerged that his beliefs included anti-Islamic views, such as advocating for the banning of Islam and the forced removal of Muslims from England. The Tribunal determined that these views violated the fifth Grainger criterion, which excludes beliefs incompatible with human dignity or that infringe on others’ rights.
The Tribunal concluded that while English Nationalism could be a protected belief, Mr Thomas’s anti-Islamic views prevented his beliefs from receiving such protection in this case. Mr Thomas appealed, arguing that the Tribunal had erred in law and misapplied the Grainger criteria.
The Employment Appeal Tribunal (EAT) upheld the original decision, affirming that the Tribunal had not made a legal error.
Employer Takeaways
The EAT emphasised that while individuals are free to hold offensive or shocking beliefs, certain intolerant views—such as those found to have been expressed by Mr Thomas—would not be protected. The case also highlighted ongoing discussions about whether the Forstater ruling had extended belief protections too far, a point the EAT suggested may require further review in future cases.
Employment Status
HMRC v PGMOL
The case relates to the employment status of PGMOL referees, who were not employed full-time by the organisation, but were often refereeing part-time alongside other full-time jobs. They were hired for specific matches, forming individual contracts upon accepting each appointment.
The Court was asked to determine if this arrangement could classify them as “employees” in the legal sense, which would require PGMOL to withhold income tax and national insurance contributions from their pay.
The Court considered a range of factors, including documents provided to referees by PGMOL before the season. These documents included a code of conduct, match-day procedures, and a fitness protocol. While these documents were not definitive, they were deemed significant in determining whether PGMOL exerted enough control over the referees to establish an employment relationship.
Employer Takeaways
This case highlights that the terms of a written contract are not always conclusive in determining employment status. Courts will consider the overall context and any additional communications between the parties. Employers in sectors like the gig economy or those hiring casual staff for temporary work should ensure clarity in their agreements to avoid misunderstandings about employment status.
The Government has also announced plans to reform employment status by creating a single category that merges “employee” and “worker” into one, as part of its initiative to increase worker protections. This proposed shift could have a significant impact on how employment is classified, and it is an important development to monitor.
National Minimum Wage
Low Pay Commission Update
On 30 July 2024, the Government set a new remit for the Low Pay Commission (LPC), the independent body that provides annual recommendations to the Government on the National Minimum Wage (NMW) and National Living Wage (NLW). The LPC has now published an initial response, outlining the approach it will take to the new remit.
The Government aims to eventually eliminate the 18-20 Year Old Rate by lowering the NLW eligibility age to 18. As a result, workers in the 18-20 age group are likely to see a more significant wage increase in April 2025.
The LPC’s response offers detailed calculations regarding the remit, but the main point is that the LPC estimates the NLW could range from £11.82 to £12.39, with £12.10 being a central figure under consideration. This increase is aimed at keeping the NLW at two-thirds of median hourly pay, a rise from earlier projections.
If the final figure reaches the higher end of the estimate, the NLW for workers aged 21 and over could rise by about £1 per hour, compared to the current rate of £11.44. Employers should take this potential increase into account when planning their wage budgets for 2025.
The LPC’s full recommendations are expected to be published in October 2024, and will affect wage rates from April 2025.
Employer Takeaways
Employers are advised to start preparing for the planned increases in minimum wage levels from April 2025, particularly those with workers in the 18-20 age bracket who are expected to be brought into the living wage rate.
Hybrid Working for Disabled Workers
Updated Guidance
On 5 September 2024, the Equality and Human Rights Commission (EHRC) published new guidance for employers on how to support disabled workers in hybrid working environments.
With the rise of flexible working arrangements, particularly in the post-pandemic era, hybrid working has become a popular model that combines remote and office-based work. While hybrid working offers numerous benefits, such as increased flexibility and work-life balance, it also presents unique challenges, particularly for disabled employees.
The EHRC’s new guidance provides employers with the tools to create inclusive and supportive environments for disabled workers within this context. The guidance offers practical tips, conversation prompts, and case study examples that cover both the recruitment process and ongoing employment.
Employer Takeaways
The EHRC emphasises the importance of proactive dialogue between employers and disabled employees, focusing on the individual needs of the worker. Employers are encouraged to have open discussions about what adjustments may be necessary for disabled employees to thrive in a hybrid working model. This includes ensuring that reasonable adjustments are made, such as providing the correct equipment, adapting communication methods, and addressing potential feelings of isolation that may arise from remote working.
Need Assistance?
If you have a question about employment case law and the impact of tribunal and court decisions on your business, we can help. Working closely with our specialist human resource colleagues, we offer a holistic advisory and support service for employers encompassing both the legal and people risks of workforce management. Speak to our experts today for advice.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
