Welcome to the April edition of the ESP Solicitors monthly newsletter. In this edition, you can find the latest statutory rates for 2025 and clarity provided by the government on the future of Statutory Sick Pay. We also explore key developments to the Employment Rights Bill as it progresses to the House of Lords — including confirmation that the government will table amendments to introduce a framework for extending certain measures to agency workers. How these will operate in practice will be set out in secondary legislation. 

1. New statutory rates for 2025

Overview: April marks the month each year where changes to statutory rates come into force. Most rate changes take effect from 6th April (to align with the start of the new tax year). National minimum wage changes take effect from 1st April. Please see our latest guide for a reference of all the useful facts and figures from April 2025 to 2026.

Decision: The statutory rates for family leave, sick pay, redundancy and the cap on unfair dismissal compensatory awards will, from 6th April 2025, be as follows:

The average gross weekly earnings required to qualify for the various forms of family leave pay will also increase from £123.00 or more per week, to £125.00 or more per week from 6th April 2025.  

In addition, we have new figures for national minimum wage which take effect from 1st April 2025: 

These amounts may be replaced by higher payments if the employer chooses to offer more voluntarily or is required to do so under the employee’s contract.

2. Where employer believes (in error) that employee has resigned the ‘dismissal’ might be fair for SOSR 

Overview: The employment relationship can generally come to an end in one of two ways: resignation by the employee or dismissal by the employer. But what happens when wires get crossed? Where the employer genuinely believes that the employee has resigned and acts on that resignation – but they haven’t actually resigned. This point was addressed by the Employment Appeal Tribunal in the recent case of Korpysa v Impact Recruitment Services. 

Facts: In this case, the Claimant was employed by the Respondent and placed with Howdens as a warehouse operative. During the COVID-19 pandemic, Howdens said that it no longer needed the Claimant. The Claimant rang the Respondent a week later. The Respondent alleged that the Claimant asked for her holiday pay and her P45 as she had a new job. The Respondent thought she had resigned. The Claimant alleged she had not asked for her P45 and had not resigned. The Respondent issued her P45. The Claimant claimed unfair dismissal and age discrimination. 

Decision: The employment tribunal dismissed the Claimant’s age discrimination claim but found that she had been unfairly dismissed. In particular, the tribunal held that the Claimant had been dismissed because of the Respondent’s mistaken belief that she had resigned. The tribunal held that this could not be a fair reason to dismiss. It went on to hold that, even if it were, the dismissal could not be procedurally fair. The Respondent appealed. The Employment Appeal Tribunal, allowing the appeal, made the following points:

• An erroneous but genuine belief in a state of affairs (here, the Claimant’s resignation) which, had it in fact existed, would have been a fair reason for dismissal, and could be a potentially fair SOSR dismissal. The tribunal was wrong for failing to consider this.
• Once an employer has shown that the reason for dismissal is SOSR, then the fairness or not of the dismissal depends on whether in the circumstances, the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. The tribunal was wrong to automatically conclude that the employer could never have been found to have acted reasonably in this case. 

The case was remitted to a fresh tribunal to consider whether the Respondent had shown that the factual reason for dismissal was SOSR, and, if so, whether it was fair or unfair.

Comment: It is obviously best practice to seek confirmation from an employee that they are genuinely resigning from employment before taking any definitive action to remove them from the employer’s systems. However, this case shows that where the ending of the employment relationship is messy and unclear, there remains the possibility of arguing that it ended for SOSR, and that the dismissal was fair. It will be interesting to see what decision is reached on fairness when this point is reconsidered by a fresh tribunal.

3. Compensation in discrimination cases should put employee back in the position they would’ve been in but for the discrimination

Overview: Once an employee has been successful in a claim of discrimination, the attention turns to the question of remedy. Compensation can include

• financial loss (particularly loss of earnings),
• injury to feelings,
• personal injury, including psychiatric illness (not dealt with on this page), and
• aggravated or exemplary damages.

The aim is to place the employee in the position they would have been in if they had not suffered discrimination. 

Facts: This point was considered recently in the case of Gourlay v West Dunbartonshire Council. The Claimant was dismissed for gross misconduct. He claimed to have developed a serious depressive illness as a result of his treatment by the Respondent. He brought claims of unfair dismissal, disability discrimination and victimisation. His claims were successful. The employment tribunal accepted that the Respondent’s discriminatory conduct had left the Claimant permanently unfit for work. 

The tribunal, when assessing compensation, made an assessment of past and future wage loss and pension loss to the date of retirement. However, it reduced the award by 80%, considering the likelihood that the Claimant’s employment would have ended within a few years due to a relationship breakdown or a mutual agreement to leave. Alternatively, the tribunal found it likely that he would have taken ill-health retirement due to his other health conditions of MS and type 2 diabetes, regardless of his depressive episode. 

The Claimant appealed the compensation decision. The Employment Appeal Tribunal upheld the appeal, finding errors in the tribunal’s approach:

• Compensation for discrimination should restore the employee to the position they would have been in if not for the employer’s unlawful actions.
• The tribunal wrongly reduced compensation based on the likelihood that the Claimant would have been fairly dismissed within a few years. Since the discriminatory dismissal left him unable to work, a reduction was only justified if a lawful dismissal would have had the same effect. There was no evidence to suggest that a later, lawful dismissal, would also have left him unable to work again.
• The tribunal also reduced compensation based on the possibility that the Claimant’s other health conditions might have led to ill health retirement in any event. However, this was based entirely upon speculation rather than upon evidence so was found to be perverse. 

The issue of remedy was remitted to a differently constituted tribunal. 

Comment: This case is an important reminder that, when looking at compensation for discriminatory dismissals, it is not enough to point to a potential dismissal which might have occurred in the near future and say that that should form a cap on compensation. If that dismissal would not have caused the same hardship that the discriminatory dismissal did (here, an inability to work again), then it will not break the chain of causation or justify a capping of compensation. 

4. Changes to collective redundancy provisions as Employment Rights Bill moves to the House of Lords

Overview/ Law: The current legal position on collective redundancy is fairly clear:

• Wherever an employer proposes to make 20 or more employees redundant at any one establishment within 90 days then an obligation to collectively consult with appropriate representatives is engaged.
• The length of consultation depends on the number of redundancies being made: at least 30 days for 20-99 redundancies, and at least 45 days where 100 or more redundancies are proposed. The meaning of the term ‘establishment’ has been the subject of several significant cases the most well-known being USDAW v WW Realisation (1) Limited and Ethel Austin, better known as the ‘Woolworths case’. In this case, the ECJ looked at the question of whether each Woolworths branch was a separate ‘establishment’ or whether the business should be looked at as a whole. It decided that each branch could be treated as a separate establishment which meant that, as most branches had fewer than 20 employees, the obligation to collectively consult did not arise.
• Where an employer breached its collective consultation obligations, employees (or their representatives) are able to bring a claim for a protective award of up to 90 days gross pay (uncapped).

Proposed changes: This all looks increasingly likely to change under the Employment Rights Bill, which is currently being debated in the House of Lords. The Government recently published its response to its consultation on strengthening remedies against abuse of rules on collective redundancy and fire and rehire. Key points to note from the response include:

• The cap on protective awards in collective redundancy situations will be increased from 90 days at present to 180 days to encourage employer compliance. This change will be included in the Employment Rights Bill.
• A proposal that interim relief should be available in claims for protective awards and/or claims for unfair dismissal on grounds of fire and re-hire (which are to be introduced in the Employment Rights Bill) will not be taken forward. The government acknowledged that this would place undue burdens on businesses and tribunals.

Comment: When the Employment Rights Bill was first published, it included a proposal to remove the concept of ‘establishment’ from the definition of collective redundancy. This would’ve meant that collective consultation would’ve been engaged whenever the total number of redundancies across a business was 20 or more, even if each site was making fewer than 20 redundancies. The proposal to remove ‘any one establishment’ from collective redundancy rules has been changed. The revised plan reinstates the ‘one establishment’ concept but allows regulations to set an alternative threshold for collective consultation to bite when redundancies occur across multiple sites. The alternative threshold is likely to be based on redundancies across the business as a whole and could be a percentage, or a higher number than 20. We will have to wait for regulations to know what this number (and/or percentage) will be.

5. Government amends Employment Rights Bill to include framework for application of zero hours contracts measures to agency workers

Overview: The Government has published its response to its consultation on the application of zero hours contracts measures to agency workers. 

Law: The Employment Rights Bill already includes complex proposals for low and zero-hours workers covering three key areas:

1.  A right for low and zero hours workers who satisfy certain conditions to be offered guaranteed hours at the end of a relevant reference period that reflects the hours worked during that reference period.
2. A right for zero hours and other specified workers to be given reasonable notice of shifts and changes in shifts.
3. A right for zero hours and other specified workers to payment each time a work shift is cancelled, moved or curtailed at short notice. 

Decision: The Government has confirmed that it will table amendments to the Employment Rights Bill to include a framework for the extension of the application of each of these measures to agency workers. How the measures will work in practice must await secondary legislation. However, the consultation response provides some information:

• Responsibility for providing the agency worker with reasonable notice of shifts will be on both the employment agency and the end hirer – with the tribunal able to apportion liability based on the responsibility of each party in a given case.
• Responsibility to pay any short notice cancellation or curtailment payments will be on the employment agency but they will be allowed to re-coup this from the hirer where they have arrangements with the hirer covering this.
• The Secretary of State will have the right to publish regulations stipulating the form and manner in which an agency worker should receive notifications of shifts, cancellations or curtailments.
• Responsibility to offer guaranteed hours to qualifying agency workers will fall on the end hirer.
• There will be an exception to the requirement to offer guaranteed hours where there is a genuine temporary work need (such as seasonal demand).
• The current system of extended hire periods and transfer fees under The Conduct of Employment Agencies and Employment Businesses Regulations 2003 will continue to apply.

6. Government provides clarity on the future of Statutory Sick Pay

Overview: Statutory Sick Pay (SSP) is the amount payable by employers when an employee is absent from work due to sickness. It is currently set at a flat rate of £118.75 (from 6th April 2025). There are certain eligibility requirements, including the fact that SSP is not currently payable during the first three days of absence, known as ‘waiting days’ and that those earning below the Lower Earnings Limit (LEL) – £125 per week – were not eligible.

Proposed changes: The Employment Rights Bill proposes to make changes to SSP rules. In particular:

• The concept of ‘waiting days’ will disappear. Eligible employees will receive SSP from their first day of absence.
• Those earning below the LEL will now be eligible to receive SSP.

Acknowledging that the rate of SSP would need to be adjusted for those earning less than the LEL, the Government launched a consultation at the back end of last year focused on establishing what percentage of earnings should be used to calculate SSP for these workers. In its response, the Government has concluded that the appropriate percentage rate for SSP is 80% of the SSP flat rate, where 80% of an employee’s normal weekly earnings is less than the flat rate. To give a real-world example, if an employee earns £100 per week, then they earn below the LEL (and below the current weekly flat rate for SSP). Under the new rules they would be entitled to receive 80% of £100 (or £80) per week as an SSP payment. 

Find out more in our latest blog ‘what HR needs to know about enhanced SSP changes’.

7. Court of Appeal agrees with EAT that Ofsted inspector dismissed for brushing water off a child’s head was unfairly dismissed

Overview: The recent Court of Appeal judgment in Hewston v Ofsted serves as a reminder to employers of the importance of using policies to set clear workplace standards. It also shows that, if an act isn’t misconduct, an employer cannot throw other factors (such as reputational damage and a lack of ‘insight’) into the mix to bump it up. 

Facts: In this case, the Claimant, an experienced Ofsted inspector with a clean disciplinary record, was summarily dismissed after touching a pupil’s forehead and shoulder to remove rainwater. 

Touching a pupil was not listed as an example of gross misconduct in the Respondent’s policies, there was no inappropriate motive behind the touching and the Respondent failed to provide the Claimant with several key documents during the disciplinary process, including the pupil complaint and the school’s report into it. 

Decision: Upholding the Employment Appeal Tribunal’s finding of unfair dismissal, the Court of Appeal gave a useful restatement of the principles applying to conduct dismissals:

• Examples of gross misconduct are generally listed in disciplinary policies. If something is not included in the list, this does not automatically mean that an employer cannot summarily dismiss for it.
• However, if the act is unlisted, it will be critical to the fairness of any dismissal to consider whether the employee could reasonably expect the employer to regard the act as serious misconduct having regard to the nature of the act and the surrounding circumstances. In this case, it was held that the Claimant could not reasonably have expected the Respondent to regard the act as serious misconduct given the context.
• An employer should not be able to bump up the seriousness of conduct which is not capable of justifying dismissal just because the employee failed to show contrition. Given the conduct was not capable of justifying dismissal, the Claimant’s lack of contrition could not ‘bump up’ the seriousness of the conduct.
• Loss of trust and confidence and the risk of reputational harm can be a relevant factor in reaching a disciplinary sanction but “it cannot be a stand-alone basis for such a decision; there must at least be some misconduct”.
• Employees should be provided with copies of all documents relevant to anything in dispute in the disciplinary process prior to any decision being reached. 

8. Government launches consultation on ethnicity and disability pay gap reporting 

Overview: The Government’s flagship Employment Rights Bill has, quite rightly, been the focus of employment law commentators since it was first announced last July. However, it wasn’t the only proposed employment legislation referenced in the King’s Speech. The Government also used the King’s Speech to announce its intention to bring forward the Equality (Race and Disability) Bill, introducing a requirement for large employers (those with 250 or more employees) to report on ethnicity and disability pay gaps. It has now launched a consultation seeking views on how it should be implemented. 

Law: Large employers already have an obligation to report gender pay gap data on an annual basis. 

Proposed changes: The Government proposes to use the same set of pay gap measures as the basis for ethnicity and disability as are currently in place for gender pay gap reporting: 

• mean and median gender pay gap,
• mean and median bonus gap,
• bonus proportions and
• quartile pay bands 

In addition, ethnicity and disability pay gap reporting will require data relating to: 

• the overall breakdown of their workforce by ethnicity and disability
• the percentage of employees who did not disclose their personal data on their ethnicity and disability

For ethnicity pay gap reporting, the Government proposes that there should be a minimum of 10 employees in any ethnic group that is being analysed and acknowledges that this may involve grouping ethnic groups together to meet the threshold. It also proposes an option for ‘binary classification’ where an employer has smaller numbers of employees in different ethnic groups, allowing them to report their figures for two groups – for example, comparing White British employees with ethnic minority employees.

For disability pay gap reporting, the Government proposes taking a wholly binary approach, measuring the disability pay gap by comparing the pay of disabled employees with non-disabled employees. Again, it is proposed that there should be a minimum of 10 employees in each group being compared. 

The consultation runs until 10 June 2025. 

9. Government proposes changes to Industrial Relations framework

Overview: The Government has published its response to its recent consultation on modernising industrial relations. As a result, it plans to make several changes to the Employment Rights Bill (ERB) relating to trade unions.

Key Changes to the ERB

• Longer notice for industrial action – Employers must now receive 10 days’ notice (up from seven) before industrial action takes place.
• Fines for non-compliance – The Central Arbitration Committee (CAC) will be given a framework to issue fines where employers fail to comply with access rights.
• Industrial action ballots – The plan to remove the 50% turnout threshold won’t happen immediately. It will require separate regulations, aligning with the introduction of e-balloting.
• Extended mandate for industrial action – Currently, mandates expire after six months. This will be extended to 12 months.
• Bargaining unit size fixed at recognition application – To prevent mass recruitment aimed at influencing union recognition, the maximum size of the bargaining unit will be set when the CAC receives the application. It can decrease but not increase during the process.
• Virtual access for unions – The ERB will allow online access arrangements alongside, or instead of, physical access.
• Changes to political fund ballots – Unions will no longer need to ballot members every 10 years on keeping a political fund. Instead, members will receive a notice of their right to opt out.

Future industrial relations commitments

Once the ERB becomes law, the Government plans to:

• Introduce e-balloting and workplace voting for union ballots.
• Reduce thresholds for trade union recognition ballots.
• Strengthen protections for trade union representatives and members through secondary legislation.
• Speed up access dispute resolution by allowing a single CAC member to decide access arrangements based on a model agreement.
• Extend the Code of Practice on unfair practices during recognition ballots to apply from the moment the CAC accepts a union’s application.
• Reduce ballot notice requirements, removing the need for unions to state employee numbers in each workplace and how they were calculated.
• Clarify that supporting a union member with employment-related issues is a legitimate reason for union access.
• Introduce a 20-working day negotiation period for agreeing union access terms, running alongside bargaining unit negotiations. If no agreement is reached, the CAC will impose terms.

Comment: These changes cannot be framed as anything other than an expansion of trade union rights – making recognition easier, increasing the outside regulation of union-employer relations (through the ability of the CAC to levy fines), and giving unions both actual and virtual access to the workplace – increasing their visibility to the workforce. 

10. ‘Sir …that was my chair’ – are we at work or back in primary school?

Overview: And finally, a tribunal has found that forcing a senior employee to sit at a desk which was viewed as a ‘junior’ desk can amount to constructive dismissal. 

Law: A constructive dismissal occurs where an employee resigns in response to a fundamental breach of contract by the employer. Often, the breach relied upon is a breach by the employer of the implied term of trust and confidence which underpins the employment relationship.

Facts: In Walker v Robsons (Rickmansworth) Limited, the Claimant was a director at an estate agency, holding the position of branch manager. In the branch in which he worked, the back desk was informally reserved for the branch manager, with more junior employees sitting in the middle. After a period spent working at a different branch, the Claimant returned to the branch and was told to sit at a middle desk. The Claimant was upset about the desk he was given, perceiving this as the desk for the assistant manager. He resigned and claimed constructive dismissal.

The Tribunal found that moving the Claimant to the middle desk was conduct likely to destroy or seriously damage the relationship of trust and confidence.  It was reasonable for the Claimant to view this as a demotion. In fact, the desk faux pas had been completely unintentional by the employer (a result of poor communication). This made no difference – the Claimant had reasonably believed that the desk move constituted a demotion and resigned in response. His claim succeeded. 

Comment: Workplaces are funny places, full of their own in-jokes and subtexts. This case is a lesson to employers to make sure that they understand the particular politics at work in their workplaces, no matter how silly or trivial they may seem from the outside. It might be a special mug reserved for a certain employee or, as in this case, an unwritten seating arrangement which dictated seniority.