This month, we cover two cases concerning redundancy – a Court of Appeal decision about the consultation that is required for a fair redundancy process, which will come as a relief to employers, and an Employment Appeal Tribunal (EAT) decision on the application of the priority right to alternative vacancies for employees who are on maternity leave when their role becomes redundant.
We also look at an EAT decision on the definition of disability under the Equality Act 2010, and a case on whether whistleblowing protection extends to charity trustees and to disclosures made before the start of employment.
Turning to legislative and policy developments, we highlight some points from the Budget that are of particular relevance for employers and we provide an update on the progress of the Employment Rights Bill (the Bill), including the public consultations which have recently been launched. Employers should also note that, while the Bill includes proposals that will severely restrict fire and rehire practices, in the meantime the Code of Practice on Dismissal and Re-engagement (the Code) continues to apply (see our previous alert for details). The power for employment tribunals to award an uplift of up to 25% on any protective award where an employer has unreasonably failed to follow the Code did not come into force as expected back in July 2024. However, the government has now published a draft Order to bring that power into force with effect from 20 January 2025. Any employers seeking to push through a dismissal and re-engagement exercise before the changes in the Bill come in will therefore need to take additional care to comply with the existing Code of Practice.
For further discussion of the Bill's proposals, you can listen to our podcast series. We will be covering key aspects of the Bill in depth across four episodes. The first episode, which looks at the proposal to make unfair dismissal a day one right, changes to collective redundancy consultation, the strengthening of statutory sick pay and the establishment of a single enforcement body for employment rights is available here. Subsequent episodes will be released over the coming weeks and will cover: family-friendly, equality and harassment related issues; trade union rights and industrial action; and atypical working and ending one-sided flexibility.
Redundancy consultation: no general requirement for workforce consultation in individual redundancies
In this case, the Court of Appeal held that the EAT had been wrong to decide that employers must conduct general workforce consultation in order for an individual redundancy dismissal to be fair.
Maternity leave: suitable alternative vacancies did not include existing pooled roles in a re-organisation
In this case the EAT held that remaining, existing roles in a re-organisation are not a suitable alternative vacancy for the purpose of Regulation 10 of the Maternity and Parental Leave Regulations 1999.
Discrimination: EAT confirms that migraines can amount to a disability
In this case the EAT held that an employee who suffered from regular migraines was disabled for the purposes of the Equality Act 2010. The employment tribunal had been wrong to conclude otherwise on the basis that the employee could have been expected to modify his behaviour to prevent or reduce the effects of his impairment.
Whistleblowing: protection of charity trustee and protection prior to commencement of employment
In this case the EAT held that an employment tribunal had been wrong to hold that a charity trustee, who was not classed as a worker under the whistleblowing legislation, was precluded from bringing a whistleblowing detriment claim. The EAT also held that a worker is protected from being subjected to a detriment by their current employer for making a protected disclosure to that employer prior to the commencement of their employment.
Budget: increases to employers' National Insurance Contributions (NICs) and National Living Wage (NLW) and National Minimum Wage (NMW) rates
On 30 October 2024, the Chancellor, Rachel Reeves, delivered the government's first Budget. There were limited measures impacting directly on employers – the main one being an increase to the rate of employers' NICs. In her Budget speech, the Chancellor also provided some additional context to the announcement, on 29 October, of the NLW and NMW rates that will apply from April 2025.
Employment Rights Bill update: factsheets, consultations and parliamentary progress
Since the Bill was published on 10 October 2024, the government has produced a raft of further documents that demonstrate its commitment to pushing the Bill forward at speed.
