On the job

With a raft of new family friendly legislation expected in 2024, along with the possible reintroduction of employment tribunal fees and the changes a new government could bring, Dan Bindman examines employment law and the experience of CILEX members specialising in this dynamic area of practice

This year is expected to be extremely busy for employment lawyers, with new legislation and changes relating to employment rights, holiday pay, protection from redundancy for pregnant women and those returning from maternity leave, as well as new rights for those who balance work and caring responsibilities.

Employers will have greater responsibilities to prevent sexual harassment in the workplace and to consider requests for flexible working.

The government will once again attempt to bring in employment tribunal fees after the Supreme Court ruled in 2017 that the fees regime was unaffordable and unfair. Meanwhile, serious delays in the courts persist, with waits of two years for hearings not unusual in both employment tribunals and appeals.

It is also a general election year and a change of government could herald further developments in employment law. Deputy Labour leader Angela Rayner has pledged to work with trade unions to bring forward an Employment Rights Bill within 100 days of entering office. She made this a “cast iron commitment” to the TUC Congress.

Brexit fall-out

One of the biggest causes of uncertainty that had been expected to play out in 2024 was the Retained EU Law (Revocation and Reform) Bill, which originally meant all retained EU law would be revoked automatically at the end of 2023, with tumultuous consequences in areas such as TUPE and working time. Midway through 2023, however, the position was reversed and the government confirmed that all EU-derived employment law would remain, unless otherwise changed. Challenges in the courts are expected now the Act reflects the principal of EU supremacy in UK law as of January 2024.

One consequence of Brexit has been that, from 1 January 2024, the Working Time Regulations have dropped the requirement for employers to keep a separate record of the daily working hours of workers, as long as they can still “demonstrate compliance without doing so”. Employers continue to be required to comply with the regulation and must ensure that maximum working hours and rest periods are not exceeded.

One EU law that changes from 1 April relates to holiday leave. The reforms include reversing a 2006 Supreme Court decision and making it legal to give workers who work irregular hours rolled-up holiday pay – that is, adding holiday pay to hourly rates – plus the carry-over of annual leave entitlement.

New rights

Reforms to laws on flexible working in the Employment Relations (Flexible Working) Act 2023 will also come into effect in April this year. Employees will be able to make two requests per year for flexible work from day one, instead of just one after at least 26 weeks’ service. They will no longer have to explain the impact of their request. Simultaneously, the ACAS statutory code of practice will be changed in relation to meetings to discuss flexible working requests.

It is important to note that this remains a right to request flexibility, which is of course not the same as a right to have it. As such the reforms lack teeth. Stephen Norton, a dual-qualified Chartered Legal Executive and solicitor at specialist employment firm Redmans Solicitors and an adviser to CILEX on employment law matters, admits it “doesn’t mean much”. He explains: “At the end of the day employers can turn it down. It’s nice that you’ve got the right to request it, but you’re not guaranteed to actually receive it.”

Mr Norton speaks as someone who has experienced life as an employee before going into the law. He was a British Rail train driver for more than eight years and then a civil servant in the Department of Health for 28 years.

“This remains a right to request flexibility, which is of course not the same as a right to have it. As such the reforms lack teeth” 

Other family friendly changes centre on the rights of new parents. Currently, before making employees on maternity leave redundant, employers have to offer them suitable alternative employment in preference to anyone else made redundant. From 6 April, this right will be extended to 18 months from the date when employees notify their employers they are pregnant. If the employee suffers a miscarriage before week 24 of pregnancy, the protected period ends two weeks after the miscarriage. If there is a stillbirth after 24 weeks of pregnancy, she is entitled to full statutory maternity leave.

There is also extended redundancy protection for parents on adoption leave or shared parental leave. Employers will need to factor in these changes to their selection processes for redundancy and update their family-friendly policies to take account of the new rights.

Fathers will also have their leave rights boosted. Currently they can take just one or two consecutive weeks of paternity leave. From 6 April, they will be able to take leave as two separate one-week blocks and it will be possible to take that leave at any time in the year after birth or adoption rather than it having to be taken within two months. They will only need to give 28 days’ notice rather than 15 weeks before the baby’s expected birth.

Equally, from the same date any employee with caring responsibility will have a new ‘day one’ right to take up to one week’s unpaid carer’s leave per year to provide or arrange care for their dependant, whether adult or child. They can take consecutive or non-consecutive half or full days up to and including taking a block of one week at once. Employers can postpone the request if necessary but then must allow it within a month of a request.

Employers will also have to be on the ball when, from October 2024, the Equality Act 2010 is amended to make employers responsible for proactively taking “reasonable steps” to prevent sexual harassment of their employees in the course of their employment. If a tribunal finds an employer has breached his or her duty, it will have the power to uplift compensation by up to 25%.

Tribunal fees

The government is once again looking to impose employment tribunal fees, after a four-year period from 2013 to 2017 in which fees had a dramatically chilling effect on the bringing of claims, ending with the Supreme Court’s UNISON judgment that held the fees were futile and irrational, so unlawful.

Employment tribunal fees were held to be unlawful by the Supreme Court in 2017

A consultation on re-imposing fees, albeit in a very different way, closed on 25 March 2024. The government’s proposal is to charge a £55 flat fee for both the employment tribunal and the Employment Appeal Tribunal (EAT). The hope is that frivolous claims will be discouraged without inhibiting those that are genuine, although the government concedes that an estimated total of £1.3m to £1.7m a year of income will make little dent in the £80m combined running costs of the two tribunals.

Compared to the 2013 fee regime, the proposed charges are fairly insignificant. Back then, cases were split into type A (simple) or type B (more complex) claims.

The former attracted an issue fee of £160 and the hearing a fee of £230. Type B cases carried an issue fee of £250 and a hearing fee of £950. The EAT attracted a £400 issue fee and a £1,200 hearing fee.

The regime led to a 53% drop in case volume within 12 months. Since fees were quashed in 2017, cases have almost doubled from 18,000 in 2016/17 to 33,000 in 2022/23.

Still further changes are to come in later in 2024 and beyond, including those involving predictable hours, the reform of non-compete clauses in employment contracts, the possible overhaul of whistleblowing and so-called ‘fire and rehire’ practices, minimum service levels in strikes, and rights for parents of newborn babies who are hospitalised in the first month of life.

Paying close attention 

It is clear that for those CILEX lawyers working in employment law, it is important to pay close attention to politics and social change in order to keep abreast of what is coming down the track.

Michael Thomson, a Chartered Legal Executive at South Coast law firm Foot Anstey and adviser to CILEX on employment matters, says: “You have to be up-to-speed with current affairs. You listen to the budget, look at party manifestos and changes that are being announced through Parliament.

“There is a lot going on, such as with family-orientated pieces of legislation, enhanced protection for women in relation to being made redundant for instance.”

In fact, much of employment law is wrapped up with discrimination of one sort or another, particularly in relation to women, says Mr Thomson. “Pregnancy and maternity discrimination is something I see a lot, and it's probably the type of discrimination that I see employers falling foul of the most. Whether intentional or not, because I think there's a lot of unconscious bias as well as conscious decisions made.”

Mr Norton agrees that discrimination is one of the most interesting areas of employment law. “Learning about protected characteristics, the different types of discrimination is a big expanding area,” he explains. “There's always a lot of case law on discrimination issues – it is more difficult to prove than some people think. Disability discrimination, that sort of thing, reasonable adjustments, inferences you can draw. That's a big area.”

The view of one employment judge gives a rare insight into the kinds of cases being litigated. Speaking anonymously, this experienced home counties judge describes claims that appear before him. The biggest cases are bulk equal pay claims against supermarket chains. Longer cases involving hearings of more than two or three days tend to cover discrimination including whistleblowing, which may include unfair dismissal, he says.

Most smaller claims are for such things as “unpaid wages, holiday pay and notice pay against defunct or failing employers and/or [the government] as guarantor”, he adds.

A rewarding career

Kim Findlow, a CILEX associate in the employment, labour and pensions department of global law firm Eversheds Sutherland, says much of her work revolves around “ensuring that clients are aware of the potential changes, and then advising them on how the new legislation and the accompanying guidance may impact their business and how they ensure their policies are amended to reflect these changes”. She recommends employment law to CILEX members considering where to take their career.

A former CILEX president, Nick Hanning, who was appointed as a deputy district judge assigned to the South East England region in 2020, is one of the leading employment and discrimination lawyers in the country. He shares her enthusiasm.

As well as dealing with questions that make a real difference to clients’ lives, the sheer complexity of the subject and its significance is what makes employment law such a challenging and rewarding career, he says.

“Enforcing and protecting the rights of individuals at work and battling discrimination is of fundamental importance to the rule of law” 

“Enforcing and protecting the rights of individuals at work and battling discrimination is of fundamental importance to the rule of law, as is representing employers to ensure meritorious claims are well handled and ‘bad claims’ resisted.

“As a lawyer it is also rewarding because there is so much law to consider and apply. This is not a field which is buried in procedure or comprises just ticking boxes.

“There are constant changes in legislation and appellate decisions to monitor. It is arguably the area of practice in which you are most likely to meet new and/or contentious issues that enable you to develop arguments, advocate change and break new ground to develop the law.”

Further, he points out: “The rules on rights of audience mean you can get stuck into advocacy much more readily than in the civil or criminal courts.”

Mr Hanning adds that Chartered Legal Executives can become employment judges. “There are at least four CILEX employment judges so far and in contrast to, for example, a deputy district judge, employment judges move quite quickly to determining final hearings, including in complex cases such as discrimination. So you can apply the law directly in a really hands-on way.”

The last word should go to Nicola Brand, a Chartered Legal Executive at MPM Legal Solutions in west London and Henley-on-Thames. In employment law every day is different, she says: “Even though the basis for a client query may be similar, for example they want to discipline an employee, the facts are specific to that individual matter and I find that fascinating.

“Also… there is a really good mix of general advisory work and being involved in tribunal litigation. I would absolutely recommend employment law to other legal executives as a specialism.”