Employment legal update #69 | February 2024

8.The Strikes Act 2023

The Strikes (Minimum Service Levels) Act 2023 (Strikes Act) allows minimum service levels to be applied where strikes are proposed in the fields of health, transport, education, fire and rescue, border control, and nuclear decommissioning and radioactive waste management services. Key points:

• Minimum service levels will be defined by regulations in each case.
• Where a trade union calls a strike where the minimum service regulations apply, the employer may, having first consulted the union, give the union a “work notice”, identifying the workers who will be required to work and the work they are required to do to ensure that minimum service levels are met during the strike.
• The union will lose its immunity from tort liability if it does not take reasonable steps to ensure compliance by any union members identified in the work notice.
• A statutory Code of Practice has been produced on the “reasonable steps” a union should take to comply with the Strikes Act.

9.The Strikes Regulations 2023

The Strikes (Minimum Service Levels: Passenger Railway Services) Regulations 2023 and the Strikes (Minimum Service Levels: NHS Ambulance Services and the NHS Patient Transport Service) Regulations 2023 are now in force. These allow employers to impose on workers and unions a minimum service level during strikes in passenger rail, NHS ambulance and NHS passenger transport services.

Also now in force are the Strikes (Minimum Service Levels: Border Security) Regulations 2023 which allow employers to impose minimum service levels on workers and unions during a strike in border security and passport services.

10. Net Migration

The government has announced five new measures to reduce net migration to the UK, effective in spring 2024. These are:

• The minimum salary threshold for Skilled Worker visas (but not Health and Care visas which are exempt) will be increased from £26,200 to £38,700 a year (or the going rate for the role, if higher).
• The 20% salary discount for roles on the Shortage Occupation List will be scrapped and a smaller list of shortage roles on an “immigration salary list” will be introduced which will retain a general threshold discount.
• Care workers will no longer be able to bring dependants to the UK.
• Care firms in England will need to be regulated by the Care Quality Commission to sponsor visas.
• The minimum income threshold for family visas will increase from £18,600 to £38,700 a year.
• The MAC will be instructed to conduct a review of the Graduate route to ensure it “works in the best interests of the UK” and is not being abused.

11. Statement of changes to the immigration rules

The government has published a policy paper, Statement of changes to the immigration rules, most of which will be implemented on 31 January 2024. These include:

• Expanding the Visitor route to include a broadening of “permitted” intra-corporate activities and paid engagements.
• Clarifying that remote working in the UK is permitted as a visitor, provided it is not the primary purpose of the visit.
• Expanding the Youth Mobility Scheme to Uruguayan nationals.

12. Flexible working

The right to request flexible working will become a day 1 right with effect from 6 April 2024. The Employment Relations (Flexible Working) Act 2023 received Royal Assent on 20 July 2023. The Act will make a number of changes to the right to request flexible working including:-

• Employees will be entitled to make two requests (instead of one) in any 12-month period
• Employers will have to respond to a request within two months (down from three months).

There will be commencement regulations to bring the Act fully into force, and the measures will be supported by an updated Acas statutory Code of Practice.

13. The Protection from Redundancy Act 2023

The Government has published the draft regulations which will extend redundancy protection during pregnancy and after maternity, adoption or shared parental leave effective from 6 April 2024. The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 came into force on 24 July 2023. It provides for regulations to be made to extend the current right to be offered suitable alternative vacancies in a redundancy situation for employees on maternity, adoption or shared parental leave to a period after returning from taking this leave.

Assuming they are passed, the draft Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 will add the following additional redundancy protections. The period of protection after returning to work from the leave period will be known as the “additional protected period”.

• Pregnancy. Redundancy protection will start when an employee tells their employer they are pregnant. If the employee is entitled to statutory maternity leave, the protected period of pregnancy will end on the day the statutory maternity leave starts (the protected period currently applicable on statutory maternity leave will then commence). If the pregnancy ends and they are not entitled to statutory maternity leave, the protected period ends two weeks after the end of pregnancy. Assuming the pregnancy does not end, the following will apply:
• Maternity The additional protected period will end 18 months after the expected week of childbirth, unless the employee has informed the employer of the date of their child’s birth, in which case the additional protected period will end 18 months after that date.
• Adoption leave. The additional protected period ends 18 months after the child’s placement or the date they enter Great Britain (in the case of overseas adoptions).
• Shared parental leave. For those taking six or more consecutive weeks of shared parental leave but who have not taken maternity or adoption leave, the additional protected period ends 18 months after the date of the child’s birth or placement (or date they enter Great Britain).
• Effectively, for a woman taking a full year’s maternity leave, there is an additional protected period of 6 months following their return to work.

Where the protected period covers pregnancy, the new rules will apply where the employee notifies the employer of their pregnancy on or after 6 April 2024. Where it relates to a period after a period of statutory leave, the new rules will apply to maternity and adoption leave ending on or after 6 April 2024 and to a period of six consecutive weeks’ shared parental leave starting on or after 6 April 2024.

14. Health and Social Care Act 2008

Following a consultation, the government is planning to amend the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (Regulated Activities Regulations) to remove the requirement for health and care volunteers to provide a full employment history before appointment. This will only apply in England. This will be introduced via a statutory instrument, but the government has not provided a timeframe.

Consultant was not an employee

In Anglian Windows Ltd v Webb the EAT set aside an employment tribunal’s decision that an individual who provided his services through a partnership could proceed with an unfair dismissal claim. Following previous case law, the EAT held that the tribunal had erred in not considering this case law which held that where a company contracts with a two-person partnership, the individual hired out from the partnership cannot be considered an employee and therefore cannot bring claims for unfair dismissal.

In March 2015, the claimant, through Webb Consultants (a partnership operated with his wife of which the respondent was aware), entered into a contract with Anglian Windows Ltd to provide his services as an Area Sales Leader. Payment was made through Webb Consultants and the individual and his wife took drawings from the profits of the partnership.

When the contract was terminated, the claimant brought proceedings for unfair dismissal. Anglian Windows applied to have this claim struck out as having no reasonable prospect of success but this failed and it appealed.

The appeal was allowed. The EAT found that the tribunal had no grounds for distinguishing another EATs decision which had held that a genuine contract between a company and a two-person partnership could not give rise to individual employment contracts for each partner. While the EAT had discretion not to follow a previous EAT decision, there were no relevant circumstances justifying that here. Furthermore, the contract was between Anglian and the members of Webb Consultants – the claimant had entered into the contract for and on behalf of the partnership. This was not the case of an individual entering into, or working under, a contract of employment for the purposes of the Employment Rights Act 1996. The parties agreed that the contract was the relevant contract in respect of the claimant’s engagement. There was no separate contract between the claimant and Anglian. Further, the partnership was genuine and there was no suggestion that the contract was a sham. As such, the claim of unfair dismissal had no reasonable prospects of success and was dismissed.

Deliveroo drivers cannot join unions

In Independent Workers Union of Great Britain v Central Arbitration Committee and anor, the Supreme Court has held that food delivery riders were not in an ‘employment relationship’ for the purposes of Article 11 of the European Convention on Human Rights, meaning that those provisions which protect the right to form and join trade unions do not apply to them. Their union could not therefore rely upon Article 11 to argue that the definition of ‘worker’ in the Trade Union and Labour Relations (Consolidation) Act should be interpreted as not excluding the riders from the statutory recognition procedure.

Grievance/appeal procedure does not affirm contract

In Brooks v Leisure Employment Services Ltd the EAT has confirmed that where an employee pursues a grievance or lodges an appeal, this is not likely to definitively affirm the contract in cases of potential constructive dismissal.

The claimant brought a claim for constructive dismissal which was rejected by an employment tribunal on the basis that it considered she had affirmed her contract because she continued to work and be paid, without resigning, for 3 months following the alleged repudiatory breach. She had raised a grievance about the breach, but this had not finished by the time she resigned, and she had expressly reserved her rights. Ms Brooks appealed.

The EAT considered the case law, looking at the apparent conflict between two Court of Appeal authorities and agreed in this case that utilising a contractual grievance or appeal procedure to give an employer an opportunity to resolve the issues that resulted in the breach of contract, is not likely to be treated as an unequivocal affirmation of the contract. It commented that using the contractual grievance procedure is usually just “continuing to work and draw pay for a limited period of time” so generally will not be enough to constitute affirmation.

As such, the EAT held that the tribunal had failed to take Ms Brooks’ ongoing grievance and reservation of her rights into account, which was essential when considering affirmation of a contract, and remitted the case to the same tribunal to consider this issue.

More constructive dismissal and affirmation of contract

In Leaney v Loughborough University the EAT, in overturning the tribunal decision, has held that determining whether or not the employment contract has been affirmed in a constructive dismissal claim, all features that are potentially relevant must be reviewed, and not just the fact of delay.
The claimant was an academic at a university for 40 years. Between January 2019 and June 2020, he raised concerns with his employer regarding its handling of a number of grievance-related issues. He contacted solicitors in July, whereupon negotiations commenced; however these broke down in September. This was the last straw for the claimant and he resigned.

His claim for constructive dismissal was dismissed by the tribunal on the basis that, by delaying his resignation, he had affirmed the contract. It held that he had realised at the end of June 2020 that the university was not going to help him and, by waiting until September to resign, he had thus affirmed the contract.

He appealed and the EAT looked solely at the issue of delay as to whether this was the only factor in whether the contract had been affirmed. It looked at various factors in the period between the end of June to his resignation date. In particular it looked at the fact that, due to his 40 years’ service, resigning might have involved a particular upheaval in his life so that the decision might have taken some time to reach. It also looked at the work he was undertaking during the summer holidays given his role as an academic professor, and whether the significance of continuing this work could have constituted affirmation. Finally, it took into the account the fact that the claimant had hoped that negotiations over the summer would lead to a positive resolution.

Having considered all the factors which contributed to the delay, the EAT upheld the appeal on the basis that the tribunal had relied too heavily on the pure fact of delay with insufficient consideration of these other relevant factors. The case was remitted to the same tribunal.