UK employment law round-up: September 2024

Indirect associative discrimination 

The definition of indirect associative discrimination has been confirmed following the case of British Airways and Rollett and others v Minister for Women and Equalities (2024).  

The Claimants (airline workers) had shifts and working conditions changed during the pandemic, putting those who commuted to Heathrow from mainland Europe at a particular disadvantage compared with domestic commuters. A British claimant alleged associative race discrimination as she commuted from mainland Europe and was put at the same disadvantage, although she did not share the relevant protected characteristic. At a preliminary hearing in 2022 it was decided that individuals who did not possess a protected characteristic but were suffering the same disadvantage could bring a claim. BA then appealed to the EAT – claiming that such associative indirect discrimination claims could not be lodged. 

The EAT agreed with the tribunal, stating that people who did not have the protected characteristic envisioned by the PCP, but who suffer the same disadvantage can claim associative indirect discrimination under s19 of the Equality Act 2010 (note that the case was brought before the amendments commenced).  

The CIPD provides clear and comprehensive guidance on the types of discrimination claims that can be lodged. Consult with your member content in this area here.  

Supreme Court ruling on fire and rehire  

A point of law regarding the practice of fire and rehire was clarified at the Supreme Court this month. The Supreme Court reinstated an injunction which imposed that Tesco may not use fire and rehire tactics to withdraw a collectively-agreed contractual benefit, that it had previously described as permanent.  

The benefit in question was a pay uplift (retained pay) given to warehouse workers who relocated to a new distribution centre as part of a restructuring. The organisation later stated that it wanted to align pay with similar staff, and therefore offered a lump sum to give up the retained pay. Those who refused faced being dismissed and re-engaged on the new terms. Following legal action by USDAW, a High Court injunction prevented these changes - the Court of Appeal then overturned this, leading to the final appeal to the Supreme Court.  

On 12 September 2024, the Supreme Court reinstated the injunction and therefore stopped the removal of the contractual benefit. 

Next equal pay case 

In a case spanning six years, staff from the retailer Next called into question whether it was fair that warehouse teams were being paid at a higher basic rate than the retail staff. In Thandi and others v Next Retail Ltd and another (2023) the retail staff (who were predominantly female) argued that their work was of equal value to the predominantly male warehouse workers. The ET agreed that this was a breach of equal pay law and while the outcome is not binding, if upheld on appeal, there may be a move towards equal pay in comparable circumstances.  

National Minimum Wage changes 

All employers are aware of the annual rise in the National Minimum Wage. With the change of government in the UK, the body that provides the recommendations on these rates was tasked with making the April 2025 rate more representative of the cost of living.  

The Low Pay Commission has now indicated that the April 2025 rise may account for inflation up to March 2026; and that there may be a higher percentile increase for the age band rate 18–20-year-old band because the UK Government have a long term ambition to phase out this age band (allowing for the National Minimum Wage to start from the age of 18).  

Subject to change, the current forecast for the April 2025 rate is £12.10.  

Cancellation of one law and start of another  

Keen fans of the employment law timetable will note that on 5 September 2024, it was confirmed that the Workers (Predictable Terms and Conditions) Act 2023, is ‘cancelled’. The law was set to allow those on unpredictable working patterns to make two requests a year for predictable patterns of work, subject to qualifying criteria. The current UK Government may choose to forward a similar law as part of its wider reforms on workers’ rights, but we await further information.  

The Tipping Act 2023 is going ahead. From the 1 October 2024 any industry and employer that handles tips is accountable.  

While the obvious areas of hospitality, hotels, taxis and service work are prime for the change, the wording of the Act allows for both tips and service charges to be entailed. Therefore, if you are an employer that bills mandatory or discretionary service charges to customers – of which the customer believes that all or part of this charge is being distributed to staff – you may be accountable.  

Non-compliance means that tribunals will be allowed to award up to £5,000 additional compensation on any claim where the employer is found in breach of the statutory code.      

Preventative duty for sexual harassment  

With the commencement of the Worker Protection (Amendment of Equality Act 2010) Act 2023 on 26 October 2024, the new preventative duty for employers to stop sexual harassment before it starts is a change impacting all workplaces.  

This preventative duty is continuous. The CIPD has issued guidance on how to prepare your teams for the change.