Employment legal update #74

1. The government has asked the Low Pay Commission to recommend increasing the national living wage (NLW) rate, which goes up in April each year to take into account the cost of living, including the expected annual trends in inflation between now and March 2026.

This is additional to it accounting for impact on business, competitiveness, the labour market and the wider economy, as well as to make sure that the rate does not drop below two-thirds of UK median earnings for workers aged 21 and over. The government has also asked the LPC to try to narrow the gap between the national living wage and the NMW rate for 18 to 20-year-olds. The ultimate aim of the government is to have a single adult rate. The government has asked the LPC to report back by the end of October 2024

2. Commencement regulations have been made to bring into force the remaining provisions of the Employment (Allocation of Tips) Act 2023 on 1 October 2024, together with the now published statutory Code of Practice on Fair and Transparent Distribution of Tips.

The purpose of the Act is to regulate how employers distribute tips among workers to ensure that workers receive tips, gratuities and service charges and that they receive these in full and with transparency.

3. The Strikes (Minimum Service Levels) Act 2023 which, to date, has not been used by any employer to apply minimum service levels during strikes, is to be repealed.

The government has not stated exactly when. The government has also reported that it intends to repeal the Trade Union Act 2016.

4. The Home Office has now removed the requirement for biometric residence permit holders to wait until they have received an invitation from the Home Office before applying for an eVisa account.

The updated Home Office guidance states that anyone with a BRP that expires on 31 December 2024 can now create a UKVI account and access their eVisa via GOV.UK: Get access to your eVisa. They should apply before the expiry date of their BRP. Once they have created a UKVI account they will be able to sign in to the Home Office “view and prove service” to access their eVisa. However, the Home Office updated guidance advises individuals to keep their Biometric Residence Permit cards even after they expire on 31 December 2024 and after they have obtained an eVisa in case “they can help with future applications to stay in the UK” and for the individual’s “personal records”.

5. Under the government’s Plan to Make Work Pay, a new “right to switch off” is proposed, which would allow workers the right to disconnect from work outside working hours and give them the right not be contacted by their employer.

Repeated breach of this by employers may result in uplift in compensation in respect of claims from workers who claimed that this right has been breached. Any new right such as this is likely to be enacted through a code of practice, probably ACAS. While it would not create a freestanding tribunal claim it could result in workers being able to claim up to 25% uplift on compensation or alternative uplift limit if a different one is applied. There is no timeframe for this coming in, however.

Change of care home provider neither business transfer nor service provision change under TUPE

In Mansfield Care Ltd v Newman and others the EAT has overturned a tribunal decision that a change of care home provider was a business transfer and a service provision change under TUPE. The tribunal held that the privately funded care home residents constituted a business transfer, and the socially funded residents constituted a service provision change, when the care home closed down and the residents moved to 2 different care homes owned and operated by a different company.

The EAT found that there was no explanation from the tribunal about how it found a separate economic entity in respect of the privately funded residents, let alone how it retained its identity. Furthermore it had not explained any identified organised grouping of employees who had, as their particular purpose, the carrying out of the services transferring to the other company in relation to the socially funded people they supported. It also found that the tribunal was wrong to find a failure to collectively consult in respect of potential redundancies; there had been no contemplation of potential redundancies of the care home staff at the time of the transfer so the relevant section of TULR( C )A was not engaged. The EAT remitted the case back to the tribunal to decide whether or not there was a relevant transfer.

Contributory fault finding does not require compensatory award adjustment

In Notaro Homes Ltd v Keirle and others the EAT has upheld a tribunal decision not to reduce a compensatory award following the finding of contributory fault. It held that there was no legal obligation to do so, albeit acknowledging that a reduction often followed such a finding. In this case, the tribunal had been right not to make a reduction on the facts where it found that the claimant’s conduct had only contributed to her dismissal in that she provided the employer with a pretext. In doing so, the EAT reviewed the previous authorities and concluded that there was nothing binding them to come to a different decision than the one they came to. Neither did the statutory language require them to make a reduction where contributory fault is found.

Only conduct to consider in constructive dismissal is that of the employer

In Nelson v Renfrewshire Council, the EAT has held that an employment tribunal was wrong to find that the employer’s conduct did not amount to a repudiatory breach of the implied term of mutual trust and confidence. In deciding this, it held that the tribunal was wrong to take account of the fact that the claimant had not completed the grievance process. She had become unhappy with the way in which her employer was dealing with her grievance during the first two stages of the grievance process and as such had failed to engage with the final stage before resigning.

In coming to its decision the EAT confirmed that, in the case of constructive dismissal, the only conduct to be taken into account was that of the employer in determining whether or not there has been a fundamental breach. The fact that the employee had not completed all the grievance stages was not a relevant factor to considering whether a repudiatory breach had occurred.

Police force culpable of direct race discrimination

The Chief Constable of Thames Valley police has been found culpable of direct race discrimination in operating positive discrimination towards an ethnic minority sergeant in promoting him without a competitive process over and above 3 white sergeants. The case of Turner-Robson and others v Chief Constable of Thames Valley Police is a first instance decision.

The three white sergeants had expressed an interest in an upcoming detective inspector vacancy. However, the ethnic minority sergeant was given the role without any competitive process whatsoever. The three white sergeants brought claims for direct race discrimination. The respondent defended the claims on the basis of their Positive Action Progression Program which enabled ethnic minority candidates of the rank of Sergeant who also met other conditions, to achieve the rank of Inspector and subsequently Chief Inspector. They contended that the appointment of the Sergeant was general positive action within the meaning of section 158 of the Equality Act and denied that it was positive action in recruitment and promotion falling within section 159 of the Equality Act.

The tribunal upheld the claims of direct race discrimination on the basis that none of the three white sergeants had had the opportunity to apply for the role or be considered for it and had been treated less favourably because they were white. It held that the respondent’s action had gone beyond mere encouragement, because it had treated unfavourably three other competent sergeants because they were white.