Top 5 recent workplace developments – November 2024

Here is our selection of key recent employment law developments for employers, HR professionals and in-house lawyers.

1. Employment law reforms – consultations launched and new draft legislation published

The government has launched four consultations on planned new workplace rights and protections set out in the Employment Rights Bill. 

The consultations, which run until early December 2024, seek views on the Employment Rights Bill’s (the Bill’s) measures relating to:

• a new right to a guaranteed hours contract for zero or low hours workers
• collective redundancy consultation and ‘fire and rehire’ practices
• trade union legislation, and
• Statutory Sick Pay.

The collective redundancy plans include doubling the maximum compensation award for failures to collectively consult from 90 to 180 days’ pay per affected employee or removing the cap on compensation altogether. There are also plans to consider doubling the minimum consultation period when an employer is proposing to dismiss 100 or more employees from 45 to 90 days.

‘Fire and rehire’ compensation

A new statutory Code of Practice on dismissal and re-engagement - often called ‘fire and rehire’ - came into force on 18 July 2024.

The current Code sets out the steps that an employer should follow when it is considering making changes to terms and conditions and envisages it may dismiss employees if they do not agree to those changes. Where an employer is found to have unreasonably failed to comply with the Code, awards for certain Employment Tribunal claims (including unfair dismissal) can be increased by up to 25%. 

The previous government had intended to extend these powers to enable Employment Tribunals to order an uplift of the protective award that can be made in collective consultation claims where a party has failed to follow the Code, but this power did not come into force before Parliament was dissolved prior to the election.

The Labour government has now resurrected draft legislation dealing with this. Protective award claims are capped at 90 days’ pay per employee so if a 25% uplift is applied, an award could equate to up to 112.5 days’ pay. 

Practical point

The government’s plans for employment law reforms are significant for employers in many ways, you can find out more about the proposals here. For further details on what is included in the government’s consultations, read our detailed update. 

2. Duty to prevent sexual harassment - EHRC checklist, action plan and monitoring logs

To help employers comply with the new duty to take reasonable steps to prevent sexual harassment, the Equality and Human Rights Commission (EHRC) has published a checklist to help employers, an action plan to help outline the action to take to use the checklist, and monitoring logs to help monitor how the checklist and action plan are being used. 

• The checklist - originally designed for the hospitality sector, this checklist provides guidance to assist employers through every stage of a shift, from rota design to the end of the shift. Employers are encouraged to consider who will use the checklist (such as managers or supervisors) and how staff can be supported to best use it (such as through training and awareness campaigns). 
• The action plan – the EHRC suggest that employers should record any actions they need to take to make the checklist part of their working practices. For example, useful things to include in the action plan would be updating policies and making staff aware of them, training staff so they are aware of what to do if sexual harassment happens, including who to speak to ensure the checklist is used across the organisation, and supporting staff to use the checklist at the correct times. 
• Monitoring logs – the guidance suggests that a log be kept after each shift to help monitor how the checklist is being used and any changes that may be needed to the employer’s approach. 

You can find them here. Acas has also updated its guidance to reflect the new preventative duty. 

Practical point 

The new duty to take reasonable steps to prevent sexual harassment came into force on 26 October 2024. Key to complying with that duty is to undertake a risk assessment and put together an action plan to manage that risk. This supplementary guidance should be particularly helpful for managing risk where there is shift work involved but will also be helpful in other situations where there is a reasonable to high risk of sexual harassment occurring such as client events and lone working. This guidance supplements the EHRC Sexual harassment and harassment at work: technical guidance and the Employer 8-step guide: Preventing sexual harassment at work. We have a set of comprehensive templates and guidance notes to further assists employers with their risk assessments and action plan. 

3. Autumn Budget 

The key points to note for employers arising from this year’s Autumn Budget by the new Labour government are:

• Employer NICs: Employer national insurance contributions (NICs), which are the mandatory contributions an employer is required to pay for each of their employees by reference to their individual earnings, are set to rise from 13.8% to 15% of employee earnings from 6 April 2025. From the same date, the threshold at which employers start paying employer NICs on a worker's earnings will be lowered from £9,100 per year to £5,000 per year.
• National Minimum Wage: Before the Budget, the government also announced increases to the National Minimum Wage. The rates include an increase to the rate for 18 to 20 year olds which narrows the gap between that rate and the National Living Wage (NLW) which currently applies to those aged 21 and over. The plan is that the NLW will in future apply to everyone aged 18 and over. The new rates, which apply from 1 April 2025, will be:
  • £12.21 per hour for workers aged 21 and over (up from £11.44 per hour)
  • £10 per hour for 18 to 20 year olds (up from £8.60 per hour), and
  • £7.55 per hour for 16 to 17 year olds and apprentices (up from £6.40 per hour).
• Umbrella companies: the government has announced that it will legislate to transfer PAYE responsibility from umbrella companies to agencies and end-clients. The measure is expected to take effect from 6 April 2026.

Practical point

These changes will take effect from April 2025. As regards the umbrella companies, employers should look out for a public consultation containing the detailed proposals together with draft legislation as well as technical guidance. 

4. Redundancies: Workforce consultation

The Court of Appeal has ruled that there is no requirement for non-unionised employers to carry out general workforce consultation in small-scale redundancy processes. 

Mr De Bank Haycocks was employed in a team of 16 recruitment consultants in ADP’s London office when the Covid-19 pandemic led to their sole client implementing a recruitment freeze. Using selection criteria provided by the US parent company, the team was assessed, and after being ranked lowest, he was ultimately made redundant.

The tribunal dismissed his claim that his selection for redundancy was unfair. While it accepted that he knew nothing about his scores until his appeal, it concluded that a thorough investigation into his concerns about scoring had been carried out during the appeal, and he could not show that he had been unfairly selected for redundancy.

The EAT upheld the appeal and found that the dismissal was unfair because there had not been any meaningful consultation at a formative stage in the process. It also stated that in all redundancy situations, regardless of whether the threshold for collective consultation was met, it was good industrial relations practice to have "general workforce consultation". ADP appealed.

The Court of Appeal allowed the appeal and restored the tribunal’s decision. It did not agree that there was a requirement for "general workforce consultation" in small-scale redundancies. 

Practical point

Although this decision confirms that general workforce consultation over redundancies of fewer than 20 employees is not compulsory in non-unionised workforces, it makes it clear that what amounts to a fair redundancy process will always depend on the facts. 

The Court also commented that during any redundancy consultation, it is good practice for employers to give employees the opportunity to comment both on issues which affect them individually as well as "workforce level" matters - such as the reasons why there were selected for redundancy and options for avoiding the redundancy respectively. 

De Bank Haycocks v ADP RPO UK Limited

5. Employment contract: Unlawful deductions from wages

An employment tribunal has ruled that a claim for unlawful deduction from wages by a footballer who was suspended while facing criminal charges should substantially succeed.

While Mr Mendy was both remanded in custody and released on bail for rape and sexual assault charges and prohibited by the Football Association from participating in football matches, he was suspended without pay by Manchester City FC. The Club took the position that his actions had led to the bail conditions and the FA’s suspension which meant he could not fulfil his role. He was subsequently cleared of all charges and brought a claim for the unlawful deduction of wages in the region of £11m.

The tribunal found that Mr Mendy was ‘ready, able and willing’ to work during the non-custody periods and entitled to be paid as there was no express contractual authorisation for the Club to withhold pay. It concluded that, for the periods he was in custody, his inability to perform the contract was due in part to him breaching his bail conditions and the Club was therefore entitled to withhold pay for those periods.

Practical point

This is another high-profile case to hit the headlines recently involving the payment of wages while the employee is suspended and facing criminal charges, following that of former BBC presenter Huw Edwards. 
Employees under investigation will usually be suspended on full pay and benefits, not least because it otherwise indicates that the employer has presumed the employee’s wrongdoing before the investigation or court decision has concluded. 

It may however be possible to recover salary that is paid during the employee’s suspension where either the employee has agreed to the deduction, or the employer has a contractual right to make the deduction. The employment contract should set out clearly the terms that apply if the employee is suspended – including whether they will receive pay and the circumstances under which the employer can withhold and/ or recover the wages. 

Mendy v Manchester City Football Club Ltd