Top 5 recent workplace developments – March 2024

This is our selection of recent developments which we think will impact on HR practice.

1. Discrimination: Religion and belief discrimination 

EAT upholds decision that terminating the contract of a Christian actor who expressed her beliefs relating to homosexuality was not discriminatory.

Ms Omooba is a Christian actor, who was cast to play the role of Celie in the stage production of The Color Purple. Celie is widely regarded as a lesbian role and, when Ms Omooba’s casting was announced, a social media storm developed relating to a past Facebook post in which she had expressed her belief that homosexuality is a sin. 

The consequences of that storm led to the termination of Ms Omooba’s contracts with the theatre (the second respondent) and her agency (the first respondent). She brought employment tribunal claims of religion and belief discrimination and harassment, and breach of contract. Shortly before the tribunal hearing, having only then read the script, the claimant volunteered she would never in fact have played the part of Celie, and would have resigned from the role in due course. She continued with her claims, but these were all dismissed by the tribunal and an award of costs made against her. 

The tribunal found that while the situation would not have arisen but for the expression of her belief, the theatre terminated the contract because of concerns about the effect of the adverse publicity on the cohesion of the cast, audience reception, the producers’ reputation and the good standing and commercial successful of the production. The agency’s reason for terminating the contract was the commercial risk to its business if its clients and agents working in the business decided to leave because of the negative publicity.

As a result, the tribunal found that whilst Ms Omooba’s belief formed part of the context, it was not a reason for either her dismissal by the theatre or the termination of her agency contract. The EAT upheld these conclusions, noting that the tribunal had carried out a detailed evaluation of the evidence.

Practical point

This case is one of the latest in a series of cases on belief discrimination. This can be a tricky area to navigate and it is important to consider taking legal advice when dealing with situations involving beliefs in the workplace. 

Omooba v Michael Garrett Associates Ltd and another

2. Discrimination: Religion and belief discrimination

Dr Miller, who was an academic at Bristol University, believes political Zionism is inherently racist, imperialistic and colonial, and therefore that political Zionism should be opposed. After several complaints were made about the expression of his views both in a lecture in February 2019, in articles published in October 2020 and February 2021 and at an event in February 2021, and following a disciplinary process, he was dismissed. He brought claims for unfair dismissal and philosophical belief discrimination.

Discrimination can be justified if the employer can show it is a proportionate means of achieving a legitimate aim. The University argued that Dr Miller's belief was incompatible with the rights of others and dismissing him was a proportionate response to applying its aims which were necessary to balance the rights of others and to protect its reputation. Although the tribunal accepted that these were legitimate aims, it found that the dismissal was disproportionate and a lesser sanction – a disciplinary sanction short of dismissal - could have been applied to achieve those aims. 

The tribunal found that his opposition to Zionism was a protected belief under the Equality Act. 

Practical point

The tribunal took the view that, as an academic institution, the University ought to be prepared to face and deal with criticism and reputational damage which resulted from its academics' exercise of the right to think and speak freely and lawfully on areas within or connected to their research and expertise. The tribunal’s position may have been a different if the employer was not an academic institution.

Miller v University of Bristol 

3. Fire & re-hire: Updated Code

Revised draft statutory Code of Practice on dismissal and re-engagement published, together with government response to consultation and Explanatory Memorandum.

On 19 February 2024, the government published a revised draft statutory Code of Practice on Dismissal and Re-engagement and Explanatory Memorandum, which if approved by Parliament is expected to come into force later this year. The draft Code was the subject of a government consultation last year which arose following the actions of P&O Ferries dismissing 800 workers without consultation in March 2022. The Code sets out the detailed steps employers should take when seeking to make changes to an employee’s contractual terms where "dismissal and re-engagement" is proposed. “Dismissal and re-engagement” means dismissing employees, before either offering to re-engage them, or offering to engage other employees, in substantively the same roles, in order to effect the changes. Key aspects include: 

• The Code applies where an employer proposes changes to contractual terms, and “dismissal and re-engagement” is an option if the employee or their representative does not agree to some or all of the proposed changes, regardless of how many employees are affected or the business reasons for the changes.
• Dismissal and re-engagement should be the last resort when changing contractual terms.
• Information should be provided as early as reasonably possible.
• Employers should take all reasonable steps to explore alternatives to dismissal and engage in meaningful consultation with a view to reaching an agreed outcome.
• Parties should engage openly and in good faith to enable meaningful consultation.
• Once it is clear that agreement cannot be reached, but the employer still needs to implement the changes, the employer should re-examine its proposals, taking into account any feedback received.
• Threat of dismissal shouldn’t be used as a negotiating tactic to put undue pressure on employees.
• Employers should contact ACAS (the Advisory, Conciliation and Arbitration Service) for advice before raising the prospect of dismissal and re-engagement with employees or their representatives.
• Employment tribunals must take the Code into account where relevant in any tribunal proceedings, and may adjust compensation by up to 25% to reflect unreasonable non-compliance.

Practical point

When seeking to change terms and conditions of employment, employers should remember that this Code will be engaged as soon as the employer raises the prospect of dismissal and re-engagement (on revised terms), as a consequence of not accepting any of the employer’s proposed changes. The Code does not ban the practice of dismissal and re-engagement but rather encourages employers to enter into a dialogue with employees or their representatives to explore options before unilaterally seeking to dismiss and re-hire on new terms. 

Employers should always consider the numbers of employees concerned to determine whether the collective redundancy obligations also apply when seeking to change terms and conditions. 

Government cracks down on controversial ‘fire and rehire’ practices - GOV.UK (www.gov.uk)

4. Four-day week trial: Study - one year on

Following the four-day week trial in 2022, organisations were invited to participate in a follow-up study one year later, to see how the four-day week had taken effect. 

A follow-up report on the four-day working week by Autonomy, Making It Stick: The UK Four Day Week Pilot One Year On, has found that 89% of the 61 organisations that took part in the trial in 2022 have continued with the policy and 51% (31 organisations) have made the policy permanent.

Almost half of those that took part in the trial (28 organisations) took part in this study. It found that the benefits of a four-day working week have been sustained following the end of the trial:

• 82% of organisations reported positive impacts on staff wellbeing
• 50% saw positive effects on reducing staff turnover and 32% said the policy had noticeably improved recruitment
• 100% of managers and CEOs said the policy had a "positive" or "very positive" impact on their organisation
• 87% of staff survey respondents reported the policy had a positive impact in their work as well, which rose to 91% among managers

Interestingly, organisations that made their policy conditional (i.e. conditional on individuals or teams meeting certain expectations) had less success implementing a four-day working week. This was due to increased stress caused by the targets, resentment and a lack of predictability, meaning difficulties for staff to plan their time off, which often included childcare and caring responsibilities. The report notes that transparency, clarity, and staff input on these conditional policies are key to mitigate feelings of inequity among staff.

Practical point

The positive outcomes recorded in the study indicate that the benefits of a shorter working week are not short-lived.

The report notes that there isn’t a one-size-fits-all approach so organisations need to design their own model, pilot parameters, and the supporting measures that come with it. While issues should be considered at the trial design and preparation phase, the pilot period is also an opportunity to tweak the model and make adjustments to find the model that will work best for the business. 

The study also found that 58% of the public expects the four-day week to be the standard way of working by 2030.

5. Employment rates & compensation limits: New rates

New compensation limits for tribunal awards and other statutory minimum payments will apply from early April 2024.

The new limits for unfair dismissal awards and redundancy pay are: 

• The limit on a week’s pay, for the purposes of calculating statutory redundancy and compensation for unfair dismissal, increases to £700 (from £643) 
• The maximum unfair dismissal compensatory award increases to £115,115 (from £105,707)
• The maximum statutory redundancy payment and unfair dismissal basic award increases to £21,000 (from £19,290)

These new limits will apply where the effective date of termination falls on or after 6 April 2024.

Other statutory rate increases include: 

• National Minimum Wage - hourly rate (for age 23+) increases to £11.44 (from £10.42) on 1 April 2024
• Statutory sick pay increases to £116.75 per week (from £109.40) on 8 April 2024
• Family leave pay (statutory maternity, adoption, paternity and shared parental pay) increases on 8 April 2024 to £184.03 per week (from £172.48) or 90% of the employee’s average earnings, whichever is lower 

Rates and thresholds for employers 2024 to 2025 - GOV.UK (www.gov.uk) 
The Employment Rights (Increase of Limits) Order 2024 (legislation.gov.uk)