Welcome to the December edition of the ESP Solicitors monthly newsletter. In this update, we explore the new employment rights and employment cases, offering key takeaways and insights for HR professionals. To receive this update directly in your inbox, please sign up via the box on the right.
1. Some early festive cheer for employees – new Minimum Wage increases on the horizon!
The Government has recently accepted the Low Pay Commission’s recommendations for the rates of the National Living Wage (NLW) and National Minimum Wage (NMW) which will come into force from April 2025.
The figures are the first produced by the commission since its remit was altered to consider the cost of living, including expected trends in inflation up to March 2026. As a result, the increases are significant compared to previous years.
The following rates apply from 1 April 2025:
Applies to | Old rate | New rate | |
National Living Wage | Workers aged 21 and over | £11.44 per hour | £12.21 per hour |
National Minimum Wage | Workers aged 18 to 20 | £8.60 per hour | £10.00 per hour |
National Minimum Wage | Workers aged 16 and 17 | £6.40 per hour | £7.55 per hour |
Apprentice rate | Apprentices | £6.40 per hour | £7.55 per hour |
Accommodation offset | Workers who are provided with accommodation by their employers | £9.99 per day | £10.66 per day |
Over time, the government has stated that it intends to align the NMW (payable to 18-20 year olds) and NLW (payable to workers aged 21 and above) to create a single adult wage rate.
The news will be less exciting for employers, who from April 2025 will also be required to increase National Insurance contributions by 1.2 percentage points to 15%. They will also need to start paying it on employee earnings of £5,000, rather than the current £9,100 threshold.
2. Oh the weather outside is frightful….
When winter weather hits in the UK we are faced with the usual disruption to roads, transport and schools, what should employers do in these circumstances? Prepare for the seasonal shift.
Firstly, it’s a good idea if not already in place to set out your position in an Adverse Weather Policy. This can include:
1. Commuting
Employers are not generally legally responsible for employees’ commutes, but they should prioritise employee safety. Forcing employees to travel in dangerous conditions might breach the implied duty of trust, risking constructive dismissal claims. Consider alternatives like remote work, flexible schedules, or allowing holiday leave to ensure employee safety and maintain good relations.
2. Workplace closures
If a workplace closes due to severe weather but employees are ready to work, they should generally be paid in full unless contracts specify otherwise. Other options include:
- Working from alternative locations or home.
- Lay-offs – if the right to lay off is included in contracts, employers can place them on lay-off for the duration of the workplace closure. Employees receive guarantee pay (currently £38 per day) instead of full wages, minimizing financial strain on the business.
3. School closures
Employees unable to work due to school closures can take unpaid time off under the legal right to time off for dependents. Some workplaces offer this as a paid benefit, so ensure policies are followed correctly.
4. Temperature in the workplace
The Workplace (Health, Safety, and Welfare) Regulations 1992 require employers to maintain a “reasonable” temperature at work —ideally at least 16°C (13°C for physically demanding jobs). Employers should monitor temperatures during cold weather and relax uniform policies to let employees wear warmer clothing if necessary.
3. Man City star succeeds in claim for unpaid wages
Overview: Employment tribunal cases rarely involve high-profile individuals, however, Benjamin Mendy’s £11 million wage claim against Manchester City Football Club is a notable exception. The case concerned whether Manchester City’s suspension of Mr Mendy between September 2021 and June 2023, during which he was unpaid, constituted unlawful deductions from wages.
Facts: Mendy signed with the club in 2017 but was suspended in 2021 following criminal charges and a subsequent FA prohibition from football activities. Man City withheld wages during this period, claiming he was unable to fulfil his role. Mendy argued that he should have been paid throughout this period.
Key legal considerations: Under the common law ‘wage–work’ principle, an employee ready, willing, and able to work is generally entitled to payment. Employers may only deduct wages if authorised by statute, contractual terms, or prior employee consent.
The tribunal examined several factors:
- Contractual entitlement: Mendy’s contract lacked any provision allowing non-payment during suspension.
- Implied terms: No implied terms justified withholding wages.
- Being ready, willing and able to work: There was no dispute that Mendy was both ready and willing to work. But was je actually ‘able’ to work. The Tribunal applied the case of Gregg v Northwest Anglia NHS Trust which held that, if regulatory suspension is an ‘unavoidable impediment’, then wages should continue to be paid even if the suspension means that the employee is unable to work. Here, Mr Mendy’s FA suspension (prompted by safeguarding concerns as one of the alleged victims was under 18) was an unavoidable impediment, meaning wages should have been paid. The five months that Mendy was unable to work owing to being held in police custody was found to be partly Mendy’s responsibility (as he had breached bail conditions) therefore, it was found to have been reasonable not to have paid him for this period.
Takeaway: This case highlights the importance of clear suspension terms in employment contracts. Had Mendy’s contract specified non-payment during FA suspensions, the dispute could have been avoided entirely. Employers should ensure robust contractual provisions relevant to the industry they work in to try to mitigate such risks.
4. Can migraines be considered a disability under the Equality Act 2010?
Overview: Whether or not an employee is a disabled person is an issue in any case of disability discrimination. Usually, an employee must be a disabled person in order to claim disability discrimination. The definition of disability found in s6 Equality Act 2010 requires that an employee suffers from a physical or mental impairment which has a substantial, long-term, adverse impact on his/her ability to carry-out day to day activities.
Facts: The definition was considered by the EAT recently in the case of Zagorski v North West Anglia NHS Foundation Trust. The Claimant was a consultant radiologist. He was exhausted and began to suffer with migraines approximately twice a week. When experiencing migraines he could not focus on a computer screen or perform his job. He was also unsteady on his feet and would need to lie down. When symptoms were severe, he could not read, write or use screens at all. Much of his role as a consultant radiologist required him to use screens to interpret scans.
Decision: The tribunal at first instance concluded that, although the Claimant suffered with an impairment, the effects on day-to-day activities were not substantial. It held that the Claimant could be expected to modify his behaviour to prevent or reduce the effects of the impairment, so he was not a disabled person.
On appeal: Unsurprisingly (in our view) the EAT disagreed. The Claimant had been off work sick for six months, during which time the modifications in behaviour that might reduce migraines had been in effect. The migraines had continued even during this time. The EAT made it clear that normal day-to-day activities can include work activities. The EAT’s judgment contains the following useful guidance on the application of the definition of disability, specifically that:
- The emphasis should be on the things that the employee either cannot do or can only do with difficulty, rather than on the things that the person can do.
- The fact that symptoms ‘come and go’, and that the substantial adverse effects are not present all the time, does not prevent there being a substantial adverse effect on day-to-day activities. This was the case here even though there were more periods when the Claimant did not have a migraine than periods when he did.
- The fact that an impairment results from exhaustion does not prevent it from being an impairment or from it having substantial adverse effects on day-to-day activities.
5. Driver using black cab app was not a worker
Overview: In the UK, there are three distinct types of employment status:
1. Employee – a person who enters into or works under a contract of employment
2. Worker – an individual working under a contract to perform work or services personally for another party, in circumstances where the other party is not a client or customer of the individual’s business
3. Self-employed – anyone who does not fall within the definition of employee or worker and is in business on their own account.
Many recent cases have considered the employment status of those working in the ‘gig economy’, in which people engage in short-term, flexible, and often freelance or contract work. Gig economy work is often characterised by the use of online platforms and apps and those involved were historically classed as self-employed.
However, in a series of cases, culminating in Uber v Aslam which went to the Supreme Court, it was determined that drivers were not self-employed (and therefore entitled to benefits including holiday pay).
Facts: The Employment Appeal Tribunal recently applied these principles in case Johnson v GT Gettaxi, although came to a different conclusion about worker status.
The Respondent ran a black cab app which licensed black cab drivers could sign up to.
The Claimant was a qualified black cab driver. He used the Respondent’s app between April 2015 and 2017. When he re-applied to use the app in 2020, his application was refused. He contended that this was because he had made protected disclosures. This gave rise to a preliminary issue as to whether the Claimant was a worker.
Decisions: Both the employment tribunal and EAT found that the Claimant was not a worker and that the Respondent’s drivers more generally were not workers. They were in business on their own account as black taxi drivers. The use of the Respondent’s app was merely to increase their business
Take-away: In this case, unlike in Uber, the cabbies were not found to be workers because:
- No penalties were imposed by the Respondent for rejections of rides offered. This indicated that the Claimant was in business on his own account.
- The Claimant was free to follow the routes he considered best and there was no penalty for not following the GPS route (unlike in Uber).
- The Claimant was given limited details about passengers on accepting fares. There was nothing stopping the Claimant from making arrangements direct with passengers for other trips.
- Drivers were able to increase their earnings by plying for hire in the traditional way as a black cab driver or by signing up to other apps. This was different to Uber, as Uber drivers could not ply for hire in the same way as a black taxi can.
This is a helpful case for employers, demonstrating that not all involved in the gig economy will be deemed workers; – it very depends on the facts and the control exerted on those who provide services via such apps by the operator.
6. Holiday pay for part-year workers
Overview: The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 introduced significant changes for part-year and irregular hours workers, applicable to holiday years starting on or after 1st April 2024. These new rules ensure that holiday entitlement reflects hours worked, impacting an increasing number of businesses.
Under the new system, holiday leave accrues at a rate of 12.07% of hours worked, calculated in hours and treated as one composite pot of leave. For workers on sick leave or statutory leave (e.g., maternity or paternity leave), leave continues to accrue based on 12.07% of average hours worked over the 52 weeks prior to the absence, excluding weeks where no work was done due to leave.
Employers can pay part year workers rolled up holiday pay if:
- It is calculated at 12.07% of pay and itemised separately on payslips.
- Payslips clearly record the holiday pay amount for each pay period.
To qualify as a ‘part-year worker,’ an employee must have a year-round contract stipulating periods of at least one unpaid, work-free week, for example, seasonal workers on permanent contracts.
School staff can be more challenging to calculate for. Although their main commitments are during term-time, they may also be expected to perform some work during the school holidays. In this case, to qualify as ‘part-year’ workers, there would need to be at least one week carved out in the contract as work-free and unpaid.
It gets even trickier when such staff are paid their salary in equal instalments throughout the year, such as typically teaching staff in schools. However, the government guidance still says it’s possible; – such staff receive pay during a period of time (such as the school holidays) and still be a part-year worker as long as there is no expectation of them working during that period and they do not receive payment in respect of that period. In other words, it has been averaged out for administrative purposes only. Download our holiday rights reference guide to assist with calculating annual leave entitlement and pay here.
7. When are protected conversations admissible in tribunal?
There are two ways in which conversations between an employer and employee about agreeing to part ways can be held to be inadmissible in later legal proceedings:
1. Where there is an existing or anticipated dispute between the parties, and the discussions are a genuine effort to resolve that dispute (without prejudice discussions); and
2. Where there is no dispute, but the parties wish to discuss ending the employment relationship on agreed terms (protected conversations).
The rule on protected conversations, referred to as pre-termination negotiations in legislation, is set out in section 111A Employment Rights Act 1996. Provided that there is no ‘improper behaviour’, an employer is able to hold conversations with an employee about ending their employment on agreed terms even where no dispute has arisen. These conversations (both the fact that they have taken place and their content) will not then be admissible in any flowing ordinary unfair dismissal claim.
Case: In the recent case of Gallagher v McKinnon Auto and Tyres, the Employment Appeal Tribunal agreed with the tribunal that pre-termination negotiations between the Claimant and the Respondent were not admissible in evidence as support for the Claimant’s unfair dismissal claim.
Facts: The Claimant worked for the Respondent as a branch manager. Following a period of absence due to ill health, the Respondent determined that the business no longer required a branch manager. The Respondent held a meeting with the Claimant and offered the Claimant a settlement sum under proposed settlement agreement terms. The Respondent confirmed that, if the offer were not accepted, the Respondent proposed to commence a redundancy process. The meeting was described by the Respondent as being ‘off-the-record’ and the Claimant was given 48 hours to consider the offer made. The Claimant did not accept the offer and was dismissed for redundancy. He wanted to refer to the settlement discussions before the tribunal.
Tribunal decision: the Claimant argued he had been placed under “undue pressure”. However, the employment tribunal concluded that the conversation formed pre-termination negotiations and there was no improper behaviour; therefore, the fact a meeting was held and content of the negotiations were inadmissible.
On appeal: The Claimant argued to the EAT that the decision was perverse as:
- he was told the meeting was a ‘return to work’ meeting and was taken by surprise;
- he was only given 48 hours to consider the offer; and
- he was told he would be made redundant if the offer was not accepted.
The EAT, dismissing the appeal, held that i and ii did not represent improper behaviour in the circumstances. This is despite the fact that the ACAS Code recommends that employees are given 10 days to consider any offer made.
In respect of iii, the EAT held that it was important to distinguish redundancy situations from disciplinary situations. The ACAS Code does state that a form of undue pressure can be telling an employee that, if they do not accept the offer, they will be dismissed. However, this guidance specifically refers to a disciplinary situation. In this case, a redundancy situation had arisen. It was accepted that the Respondent had told the Claimant that his role was redundant. However, this did not mean that dismissal was inevitable as there was still the possibility of alternative employment.
8. Holiday pay underpayments: a gap of over three months between deductions will not break chain of deductions
Overview: If an employee has been underpaid by their employer in any way, then they are able to bring a claim for unlawful deductions from wages in the employment tribunal. Such claims must be brought (or, to be clearer, ACAS early conciliation commenced) within three months less one day of the date of deduction. If the deduction is one of a ‘series’ of deductions, then early conciliation must commence within three months less one day of the last in that series. There is a long-stop date of two years when looking back in a series. How do you decide whether several deductions amount to a ‘series’ such that they are brought in scope of any claim?
In Bear Scotland v Fulton, the Employment Appeal Tribunal, when looking at an underpayment of holiday pay, held that a series of deductions would be broken if there was a gap of more than three months between underpayments. This approach was held to be wrong by the Supreme Court in Chief Constable of the Police Service of Northern Ireland v Agnew, where gaps of over three months were not found to have broken a series of holiday pay deductions.
Facts and initial decision: The position has been looked at again in the recent case of Deksne v Ambitions Ltd. In this case, the Respondent conceded that it had paid the Claimant’s holiday pay incorrectly. The Claimant claimed unlawful deductions from wages. The employment tribunal held that the deductions were out of time as they were not a ‘series’ of deductions, as there were gaps of over three months between some underpayments. This decision was reached before Agnew in the Supreme Court.
On appeal: The Employment Appeal Tribunal, overturning the tribunal’s decision, held that whether deductions of wages constitute a series is essentially a question of fact, answered by taking account of all relevant circumstances including the similarities, differences, frequency, size and impact of the deductions, as well as how they came to be made and applied and what linked them together. The tribunal had fallen into error by taking account of the fact that the interval between the payments was, from time to time, in excess of three months. All the underpayments of holiday pay, based on the same calculation, formed part of a series of deductions– all the Claimant’s holiday pay shortfalls back to the beginning of the two year backstop in section 23(4A) of the Employment Rights Act, were part of a series of deductions and within the jurisdiction of the tribunal.
Take-away: This case serves as a reminder to employers that claims for historic underpayment of holiday pay remain a risk so long as a claim is commenced (through early conciliation) within three months less one day of the final deduction. Making a correct payment in an attempt to ‘break the chain’ will not work. Neither will any totting up of the gaps between underpayments – three months no longer has any relevance. What is important is that the underpayments are of the same character, not how frequently they are made.
9. End of the road for the Christmas party? No, follow our tips to ensure your organisation isn’t a Christmas Scrooge!
Since 26th October, all employers have been under a positive duty to prevent sexual harassment ‘in the workplace’.
The definition of the ‘workplace’ extends beyond physical premises to include employer-hosted events like Christmas parties. Misconduct at such events could result in claims of vicarious liability for harassment and breach of the positive duty against employers. This heightened responsibility has prompted some to question whether hosting a party is worth the risk.
However, with proper planning and clear policies, employers can still celebrate the festive season while complying with their legal duties.
Here are 5 top tips for employers wanting to safely host a Christmas party:
- Carry out a (short) risk assessment: The Equality and Human Rights Commission have emphasised the central importance of effectively assessing the risk of sexual harassment to demonstrating compliance with the new positive duty. A risk assessment of the planned event could be carried out. Mitigating steps should be taken in respect of risk areas identified. Retain documentation. Download our checklist here to prevent sexual harassment in the workplace.
- Set clear expectations: In advance of any event, remind employees that workplace policies on behaviour, including harassment and alcohol consumption, apply to all work-related events.
- Provide training: You could ensure all employees and managers have up-to-date anti-harassment training before the event.
- Control alcohol consumption: Consider limiting free-flowing alcohol by offering drink tickets or a cash bar to reduce the risk of intoxicated behaviour. The risk of sexual harassment is significantly heightened where alcohol is involved, and inhibitions are lowered.
- Follow up promptly: Encourage employees to report any issues and ensure to investigate complaints swiftly and fairly.
10. And finally, what happens when the whole workplace culture stinks?
In a recent tribunal case, Ogden v Booker Limited, Booker, a wholesale and delivery business, discovered the perils of taking a stand on a specific incidence of workplace behaviour when the entire culture at work was poor.
Facts: Booker dismissed Mr Ogden for referring to a colleague as a “f**king mong”.
Decision: Although the tribunal found that Mr Ogden made this comment he was nevertheless unfairly dismissed. The comment was no worse than what others said in the workplace. The office he worked in was a ‘free-for-all’ with the tribunal holding that “this was a dysfunctional and seemingly toxic office, with many participants in this unprofessional behaviour including [Mr Ogden] and [his] victim”. Booker should have taken this into account when investigating the allegation against Mr Ogden. It was relevant to the fairness of dismissal as the sanction.
Take-away: This case reminds employers that workplace standards must be consistently applied. Inconsistency risks singling out employees unfairly, as was the case for Mr Ogden.
