Employment Edit: 8 August 2024

National minimum wage changes

In the briefing notes that accompanied the King’s Speech in July, the government indicated that it intends to make changes to the living wage to ensure that it takes account of the cost of living. In addition, it promised to remove living wage age bands, which it described as discriminatory. Both of these promises also featured in the Labour Party’s Plan to Make Work Pay.

To start the ball rolling on these changes, last week the government issued a policy paper detailing the Low Pay Commission’s remit for 2024. In particular, the government asked the Commission to take account of the cost of living when it recommends the rate of National Living Wage (NLW) which should apply from April 2025. It also asked the Commission to recommend a National Minimum Wage rate for 18 to 20 year-olds that narrows the gap to the main NLW rate (which currently applies to those aged 21 and over). This would be an interim measure whilst the government takes steps to move towards a single adult rate.

Minimum service levels

Earlier this week, the government announced that it will repeal the minimum service levels legislation that was introduced last year. The legislation introduced the option for employers in certain public services (such as health services and public transport) to issue work notices identifying those workers who are required to work during strike action in order to meet the service levels specified in regulations. If no work notices are issued, then the legislation does not have any impact. The option to issue work notices has not been utilised by relevant employers to date.

Repeal of the legislation will form part of the Employment Rights Bill, a draft of which is expected to be introduced to Parliament within the first 100 days of the new government. As an interim measure and whilst the option for employers to issue works notice remains live, the government has written to relevant public sector employers encouraging them not to use the minimum service levels legislation and has included a similar message for all affected employers in this update.

For a closer look at the new government’s proposals for trade union and industrial relations reform, check out our recent article on the topic – it’s the top item in our thought leadership segment below.

Tipping changes in force from 1 October 2024

We now have confirmation that new tipping obligations will come into force on 1 October 2024. The Employment (Allocation of Tips) Act 2023 was passed last year and an accompanying code of practice on the fair and transparent distribution of tips was approved by the House of Lords shortly before the election. However, both the Act and the code were awaiting a commencement date until last week when it was confirmed that both the measures under the Act and the code will come into force on 1 October 2024.

The Act introduces a range of new measures, including a new duty on employers to ensure that all qualifying tips are allocated fairly between workers and a requirement for relevant employers to have a written policy on how they deal with tips. The code includes guidance on what types of payment constitute qualifying tips and how an employer should choose the factors to determine the allocation and distribution of such tips. Affected employers need to take steps now to ensure that they have appropriate policies and processes in place ahead of October.

Causing or inducing discrimination

The EAT has held that a charity did not cause or induce a barristers’ chambers to discriminate against one of its barristers.

The charity made a complaint to the chambers after the claimant, who holds gender critical beliefs, posted several tweets on Twitter (now X). The chambers upheld the complaint in relation to two of the claimant’s tweets and asked her to delete the tweets. The claimant issued a tribunal claim alleging, amongst other things, that the decision to uphold the complaint was discrimination by the chambers on the ground of her protected belief and that the charity had caused or induced that discrimination. The tribunal upheld this allegation against the chambers but found that the charity had not caused or induced that discrimination. This latter point was appealed to the EAT.

The EAT dismissed the appeal, noting the tribunal’s findings that the complaint was made by the charity as a protest, did not have any specific aim in mind (other than perhaps a public denial by the chambers of any association with the claimant’s views) and did not contain any threat. The EAT agreed that it was not fair, reasonable or just to find the charity liable in these circumstances and so upheld the findings that the charity had not caused or induced the discrimination under the Equality Act 2010. It noted that ‘responsibility for determining the complaint in a discriminatory way lay only with’ the chambers.

(Bailey v Stonewall Equality Ltd and others)