Welcome to our November 2024 Employment Law Update!
In this edition, we cover the main headlines following the Autumn Budget along with further details of current government consultations and how you can have your say.
This month’s case update explores the question of whether an individual undertaking a pro-bono role within a registered charity is, or should be, treated as a worker in order to claim legal protection from detriment after making a protected disclosure.
Budget headlines
Increase in employer NICs
Not originally trailed in Labour’s manifesto, the announcement that employers’ NICs will increase to 15% and that the threshold from which those payments are made will decrease from £9,100 to £5,000 came as a surprise in some quarters. However, the Employment Allowance, which allows eligible small businesses to reduce their NIC liability, is increasing from £5000 to £10,500.
National Living Wage
The NLW will increase by 6.7% on 6 April 2025 to £12.21 per hour for adults aged 21 and over. The rate for 18 – 20-year-olds increases to £10 (a rise of 16.3%) and both the 16 – 17-year-olds and the apprentice rate increases by 18% to £7.55. The government’s long-term objective is to align the NLW with the National Minimum Wage (NMW) for all adults.
Government consultations – have your say
‘Fire & rehire’ consultation
The government launched a consultation on 21 October 2024 to explore views on penalising employers that do not follow a fair collective redundancy procedure. At present an employer failing to implement a proper consultation process when wishing to make 20 or more employees redundant, can be ordered to pay employees an award of up to 90 days’ pay. The consultation seeks feedback on two proposals: increasing the award from 90 to 180 days’ pay; or remove the cap completely, leaving the Tribunal to decide on the amount of the award. The consultation has been launched with a bid to deter employers from offering employees more monies than an Employment Tribunal can award for such claim, under a settlement agreement. Views are also sought on whether interim relief should be applied to claims for a protective award. Interim relief is rarely used and only in certain dismissal claims. Responses to this consultation will feed into the Employment Rights Bill. You can have your say by visiting ‘Consultation on strengthening remedies against abuse of rules on collective redundancy and fire and rehire’. The consultation ends on 2 December 2024.
Zero-hours workers protections consultation
As part of the government's pledge to end exploitative zero-hours contracts, it is proposing to introduce two measures to tackle ‘one-sided flexibility’: the right to guaranteed hours which reflect the hours worked by the worker during a reference period, anticipated to be 12 weeks; and a right to reasonable notice of shifts and a right to be paid for shifts cancelled at short notice. It has launched a consultation seeking views on how to apply these measures. The consultation ends on 2 December 2024, and you can respond online here.
Industrial relations framework
The government’s plan to Make Work Pay outlined their proposed changes to current trade union legislation, committing to “a positive and modern framework for trade union legislation that delivers productive and constructive engagement, respects the democratic mandate of unions, and works to reset our industrial relations.” To this end, it has launched a consultation on its proposed reforms, which ends on 2 December 2024. You can respond online here.
Statutory Sick Pay (SSP)
The Employment Rights Bill will introduce strengthened SSP, in particular the removal of the three-day waiting period before SSP is payable, and the removal of the lower earnings limit. However, acknowledging that SSP may be greater than the pay received by some lower earners, the consultation also seeks views on the percentage rate of the proposed taper to the current SSP rate. The consultation ends on 4 December 2024, and you can respond online here.
Podcast: have you listened yet?
Tina Chander, Partner and Head of Employment Law, recently featured on Dr Jason Price's podcast, ‘Life at the Sharp End’, in which she offers her perspective on differentiating banter, bullying, discrimination and harassment, and some of the key steps required for UK employers to act fairly and proportionately in preventing and addressing workplace bullying and sexual harassment.
You can listen to the podcast here.
Employment law & HR training sessions
Our employment team’s half or full day interactive training sessions, alongside our more informal Lunch and Learn sessions, are designed to update employers on both recent and upcoming changes in legislation, raise awareness of employees’ legal rights and obligations and provide guidance on conducting a variety of internal HR procedures in line with legal obligations and best practice. Please get in touch with the team if you would like to book a session.
Our most recent offering is a joint training session with Conduct Change. Tina Chander and Nicki Eyre, Director of Conduct Change, will be delivering sessions designed to educate both employers and employees on the legal and emotional aspects of workplace bullying and harassment. Sessions are £2,500 + VAT and can be held either remotely or face to face, either at your premises (subject to travelling expenses) or ours. Please get in touch with us for more information.
Case Update
EAT ruling could result in legal protection for whistleblowing volunteers
Dr Nigel MacLennan v The British Psychological Society 2024
This case explored the question of whether an individual undertaking a pro-bono role within a registered charity is, or should be, treated as a worker in order to claim legal protection from detriment after making a protected disclosure.
Dr MacLennan was a charity trustee, elected to the role of President-Elect of the British Psychological Society, a charity with 66,000 members and a turnover of £11.6m. As President-Elect, Dr MacLennan sat on the Board of Trustees which is responsible for the management and administration of all the charity’s affairs with operational matters delegated to an executive team.
His concerns over the way in which the BPS was run led him to campaign for the position of President-Elect so that he was in a position to address them. He was elected on 4 May 2020 but before his election was ratified on 30 June, he made four protected disclosures and a further nine in the six-month period post-ratification. His subsequent relationship with the executive team became strained leading to the latter raising a grievance against him. Following an investigation conducted by a barrister, Dr MacLennan was expelled from the BPS and his roles as President-Elect and Trustee, terminated.
Dr MacLennan claimed before the ET that he should be treated as a worker in order to be protected against detriment on the grounds of making a protected disclosure. He also relied on the ECHR’s Articles 10 (right to freedom of expression) and 14 (enjoyment of the rights and freedoms set out in the ECHR and the Human Rights Act). The ET found that Dr MacLennan was not a worker, as defined by the ERA, as there was no written contract between him and the BPS. As such, Article 10, read with Article 14, of the ECHR did not apply. Dr MacLennan was given leave to appeal.
The EAT noted that the appeal ‘raises some points of general importance.’ As such, it considered that the ET had not considered Dr MacLennan’s significant responsibilities as a trustee sufficiently seriously and had focused too narrowly on the issue of his unpaid, volunteer status. Although the EAT noted these were relevant factors, they were ‘not determinative.’ The EAT remitted the case back to the ET.
This ruling may result in thousands of charity trustees and volunteers being legally protected from whistleblowing detriment. Therefore, all organisations that rely on volunteers in whatever capacity should ensure that their processes and procedures for dealing with whistleblowing disclosures are robust and transparent. If legal protection is extended to volunteers, any breach by the charity could result in compensation being payable.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
