Employment Edit: 22 August 2024

Employment Rights Bill

Last week, the government met with business leaders and trade unions to discuss its plans for employment law reform. The Employment Rights Bill and the new government’s ‘Plan to Make Work Pay’ were both topics of conversation during the meeting.

The government has indicated that it will introduce the Bill by early October (at the latest) and that it will also explore other ways to deliver some of its proposed changes, including through secondary legislation or non-legislative routes. We have already seen some of the proposals moving forwards, including through changes to the Low Pay Commission’s remit for 2024. More details about last week’s meeting can be found here.

One of the Make Work Pay proposals that has been hitting the headlines this week is the ‘right to switch off’, enabling employees to disconnect from work and limiting the contact they can receive from their employer outside of working hours. The exact mechanism that the government intends to use to introduce this new right is not yet known, with different models from other jurisdictions (including Ireland and Belgium) under consideration. Although employees are not currently expected to be able to bring a freestanding claim for a breach of the new right, one option reportedly under consideration could see employers facing a possible uplift on some compensation awards where they are repeatedly in breach of the new right.

For more in-depth consideration of the government’s proposals for employment law reform, don’t forget to check out our article below. 

Strike ballot thresholds

Following on from our minimum services levels update in the last edition of Employment Edit, it has been reported that the government also intends to go ahead with its proposal to repeal certain thresholds for industrial action ballots that were brought in under the Trade Union Act 2016. The 2016 Act introduced a requirement for a 50% turnout for an industrial action ballot to be valid. It also extended the minimum length of notice of industrial action that a trade union must give to an employer from seven days to fourteen and introduced a limit of six months on the duration of the industrial action, meaning that fresh notifications and ballots must be run after six months.

Repeal of the 2016 Act was one of the proposals outlined in the Plan to Make Work Pay. It appears that the repeal will be included in the Employment Rights Bill, once it is tabled in the autumn, but it is not yet known when the change would take effect from. For more details on worker voice and the new government’s plans for trade union and industrial relations reform, see our article below.

Indirect discrimination

The EAT has held that, in order to bring an indirect discrimination claim, a claimant does not have to have the same protected characteristic as the disadvantaged group as long as they experience the same disadvantage.

The respondent airline introduced new shift patterns for its cabin crew. A group of claimants brought claims arguing, amongst other things, that the scheduling changes were indirectly discriminatory as they put those who lived abroad and commuted to Heathrow from abroad (predominantly non-British nationals) and those with caring responsibilities (predominantly women) at a particular disadvantage. The claims were brought by some claimants who had the relevant protected characteristic and some claimants who did not. The latter group included a British national commuting from France and a man with caring responsibilities.

The question for the EAT to determine was whether indirect race and sex discrimination protections extended to those claimants (including the British national commuting from France and the man with caring responsibilities) who did not have the protected characteristic of the disadvantaged group. The EAT held that they should. Although the wording of the Equality Act 2010 did not (at the time) cover claims of this type, it was appropriate to read wording into the Act to allow such a claim in line with a pre-Brexit judgment of the Court of Justice of the EU which held that indirect discrimination protections extended to those who do not share the same protected characteristic as the disadvantaged group. The EAT took into account the fact that the aim of indirect discrimination is to ‘level the playing field’ by removing rules and practices which put protected groups at a disadvantage.

The Equality Act 2010 was amended with effect from 1 January this year to expressly allow indirect discrimination complaints where a claimant suffers ‘substantially the same disadvantage’ as the protected group. This legislative change and the EAT’s decision both reaffirm the importance of employers considering if any other individuals, outside of the protected group(s), might be similarly disadvantaged by a policy or arrangement.

(British Airways plc v Rollett and others)