In a significant decision, the Employment Appeal Tribunal (EAT) has decided that a volunteer can be classified as a worker if they are entitled to remuneration for their activities. This ruling emerged from a case Groom v Maritime & Coastguard Agency [2024] EAT 71.

The Case Background

Mr. Martin served as a volunteer for the Coastal Rescue Service (CRS), an organization that operates with around 3500 volunteers. These volunteers are guided by a handbook that emphasizes the voluntary nature of their roles while setting expectations such as attending training sessions and maintaining a reasonable level of incident attendance. For specific activities, volunteers could claim reimbursement for minor costs associated with their service, including disruptions to personal life, employment, and for attending unsocial hours call outs.

Mr. Martin challenged the denial of trade union representation at a disciplinary hearing, arguing that he qualified as a worker.

Initial Tribunal Decision

Initially, the tribunal decided that Mr. Martin was not a worker, citing the absence of a contract between him and the CRS. The tribunal emphasised that there was no automatic right to remuneration and noted that numerous volunteers did not claim their expenses. Consequently, the agreement between Mr. Martin and the CRS was deemed voluntary.

Mr. Martin subsequently appealed this decision.

The EAT’s Ruling

Upon appeal, the EAT overturned the tribunal’s decision. Notably, the EAT rejected the notion that a volunteer relationship is inherently unique. Instead, the tribunal highlighted the absence of a legal definition for “volunteer,” acknowledging that volunteer status can vary based on the agreement between the relevant parties.

The EAT found it immaterial that remuneration was not automatic or that other volunteers chose not to claim it. The critical point was that a contract formed at the point a volunteer had the right to receive remuneration for their attendance. Furthermore, volunteer attendance was regulated by a Code of Conduct, mandating minimum attendance at training and rescue incidents.

Conclusion and Implications

Both parties concurred that if an obligation was present, it pertained to personal service. As a result, the EAT designating Mr. Martin as a worker. Nonetheless, the EAT did not address whether Mr. Martin was considered a worker during unremunerated activities, leaving this issue unresolved.

This ruling illustrates the importance of the specific terms and conditions governing volunteer arrangements and their potential implications for employment rights.

For specific help and guidance on what this means for your business, please contact [email protected].

Effective from April 6, 2024, the Maternity Leave, Adoption Leave, and Shared Parental Leave (Amendment) Regulations 2024 extend the existing statutory protection against redundancy. These regulations now safeguard pregnant women, new parents returning from any period of maternity or adoption leave, and those who have taken at least six weeks of shared parental leave.

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 provides protection for pregnant employees from the moment they inform their employer of their pregnancy until 18 months after the birth. Additionally, employees returning from adoption or shared parental leave are protected against redundancy for at least six months after their return to work.

These employees are granted special protection in redundancy situations. They have the right to be offered a suitable alternative vacancy, if one is available, before other employees.

On 6 April 2024, the new Code of Practice on flexible working requests came into force..  

This aligns with the enactment of the Flexible Working (Amendment) Regulations 2023, which established the right to request flexible working from day one of employment.

The Employment Relations (Flexible Working) Act 2023 brings workers new benefits, including:

• Flexible working requests becoming a day-one right; 

• Employers must consult before rejecting a flexible working request; 
• Two statutory requests in any 12-month period; 
• Decision time reduced to two months; and
• Elimination of requirement for employees to explain impact of requested changes on employers.

The updated statutory Code of Practice encompasses the changes outlined in both the Act and the Regulations. The code can be accessed here: Code of Practice on requests for flexible working | Acas

The Paternity Leave (Amendment) Regulations 2024 (SI 2024/329) apply specifically to children expected to be born or adopted after 6 April 2024, or whose placement for adoption or entry into Great Britain for adoption occurs on or after the same date.

Here’s a breakdown of the key revisions introduced by the regulations:

• Fathers and partners can now split their paternity leave into two separate one-week blocks, providing greater flexibility in scheduling;
• The time frame for taking paternity leave has been extended, allowing fathers and partners to use their leave at any point during the first year following the birth or adoption of their child;
• Notice periods for taking leave have been shortened in most cases; and
• Fathers or partners who have already submitted notice for leave can now adjust their chosen dates provided 28-days’ notice is provided.

An employment tribunal has recently ruled in favour of a disabled council employee, granting her a substantial £4.6 million following her dismissal while on sick leave. The employee, who suffers from ADHD and post-traumatic stress disorder (PTSD), held the role of Director of Public Service Reform at Hammersmith and Fulham Borough Council for less than nine months.

The tribunal found that her disabilities were known to the employer at the time of dismissal. Moreover, it was determined that her dismissal was directly linked to her PTSD, stemming from her involvement in the response to the Grenfell Tower tragedy.

The tribunal partially upheld the employee’s allegations of harassment, direct discrimination, and discrimination arising from her disability. Additionally, it found that the employer had unreasonably failed to adhere to the Acas Code of Practice on Disciplinary and Grievance procedures regarding both the employee’s grievance and her termination.

In addition to the above, the tribunal also concluded that senior officers at the council, including the chief executive, had attempted to deliberately mislead both the employee and the tribunal.

During the remedies hearing in January 2024, the tribunal heard expert evidence that suggested that the employee was unlikely to return to work, with her health decline being directly linked to the council’s actions.

While the written reasons behind the award are pending, it is understood that the £4.6 million includes an amount for exemplary damages. This award is believed to be one of the highest made for disability discrimination.

Despite the ruling, the council is reportedly contemplating an appeal.

Effective 1 April 2024, the increased national minimum wage rates are as follows:

• The National Living Wage now applies to workers aged 21 and over and will increase from £10.42 to £11.44 per hour.
• The national minimum wage for 18-to 20-year-olds will rise £7.49 to £8.60 per hour.
• The national minimum wage for 16-to 17-year-olds will rise from £5.28 to £6.40 per hour.
• The apprentice rate will rise from £5.28 to £6.40 per hour.
• The accommodation offset rate will rise from £9.10 to £9.99.

Manchester United is currently caught in legal proceedings stemming from a data breach in 2018. The breach occurred when the football club inadvertently sent a single file containing sensitive information, including names, addresses, earnings details, and national insurance numbers of 167 employees, to a group of casual catering and hospitality staff. Each claimant is seeking an average of £3,000 in damages.

In response to the incident, Manchester United implemented measures to prevent future breaches and promptly notified the Information Commissioner’s Office (ICO). However, the ICO opted not to pursue further action.

This case serves as a reminder of the importance for employers to comprehend and adhere to their obligations under data protection laws and highlights the significance of taking proactive measures in safeguarding sensitive information.

The ICO has released guidance to assist employers in understanding the permissible sharing of personal data during mental health crises in the workplace.

The guidance emphasizes that data protection should not hinder necessary information sharing during mental health emergencies. Prioritizing the well-being of the individuals involved is paramount.

In line with this, employers are recognized as potentially needing to share relevant and proportionate information with emergency services and healthcare professionals to prevent harm to the affected employee or others.

Furthermore, the guidance clarifies that employers won’t face repercussions for sharing an employee’s personal information with their next of kin or emergency contact. However, it highlights the importance of exercising discretion in determining the appropriate level of information sharing for each unique situation.

To proactively address such scenarios, the ICO recommends employers to:

• Identify the appropriate lawful basis for processing and sharing personal data during mental health emergencies.
• Establish a policy outlining the specifics of personal data sharing during mental health emergencies, including the types of information involved, recipients, and security measures. This policy should be communicated to all employees, accompanied by training on handling personal data in such situations.
• Maintain up-to-date records of employees’ next of kin and emergency contacts, considering separate contacts for general emergencies versus mental health crises to uphold confidentiality.

Highstreet store, Boots has officially announced the termination of its hybrid work policy, which allowed full-time office employees to work remotely for two days per week. Starting September 1, 2024, all employees will be required to work in the office daily. The Managing Director, stated that this change aims to enhance business efficiency and foster a stronger company culture.

This shift reflects a broader trend towards office-centric work arrangements, with other major employers like Nationwide and Deutsche Bank also reconsidering remote and hybrid work policies. However, a report from Grant Thornton highlights concerns about the potential impact on equality. According to their findings, businesses led by male CEOs are more likely to be office-based compared to those led by female CEOs. Additionally, businesses with primarily office-based workforces have lower representation of women in senior management roles compared to the global average.

On 25 March 2024, increases to the Vento bands were made.  The vento bands are what dictates the compensation awarded in employment tribunal cases for injury to feelings for discrimination.

The revised Vento bands will apply to claims presented on or after 6 April 2024 and are as follows:

• Lower band for less serious cases ranging from £1,200 to £11,700;
• A middle band ranging from £11,700 to £35,200; and
• An upper band for the most severe cases ranging from £35,200 to £58,700.

However, exceptional cases may warrant awards exceeding £58,700.

Protect, a whistleblowing charity, has disclosed a notable rise in whistleblowing calls. In 2023, there was a 23% increase compared to the previous year.

Of those who reached out to Protect’s Advice Line, 41% claimed that their whistleblowing concerns went unaddressed by their employers. Additionally, a concerning 73% reported facing victimization or being coerced into resigning after speaking up.

The sectors affected by these reports span a wide range. The private sector accounted for 42% of the calls, with the public and charity sectors contributing 24% and 23%, respectively.

The health and social work industry experienced the most significant surge, with a 48% increase in calls from 2022 to 2023.

Demographically, nearly half of the callers (44%) earned an annual income below £30,000. Many of these individuals were frontline workers within hospital wards and small charities, expressing concerns about the mistreatment of vulnerable people and the safety of patients.

On 29 February 2024, the Carer’s Leave Regulations 2024 (SI 2024/251) were enacted, a milestone in employee rights in England, Wales and Scotland. These regulations introduced unpaid carer’s leave from April 6 2024.

Under these regulations, employees will have the right to take unpaid leave to provide or arrange care for a dependant with long-term care needs. Notably, eligibility for this leave is not contingent on length of service, ensuring all qualifying employees can access it.

Carer’s leave will be granted in increments of half days or full days, with a maximum allowance of one week over a 12-month period. This flexibility aims to accommodate varying caregiving responsibilities while balancing work commitments.

Crucially, employees taking carer’s leave will be afforded the same employment protections as those on other forms of family-related leave. This includes safeguards against detriment or dismissal based on their decision to take or seek carer’s leave.

These regulations mark a significant step forward in supporting employees with caregiving responsibilities and promoting work-life balance. As they come into effect, it’s essential for both employers to familiarize themselves with these new rights and obligations and to introduce a policy.

The Equality and Human Rights Commission (EHRC) released guidance on February 22, 2024, addressing the often-overlooked topic of menopause in the workplace. The resource aims to equip employers with the knowledge and tools necessary to support workers experiencing menopausal symptoms and to understand their legal obligations whilst doing so.

1. Understanding the Impact

The guidance sets out what the menopause and perimenopause entail and how the associated symptoms can detrimentally affect an employee’s well-being and productivity. Symptoms such as decreased concentration, increased stress, reduced patience, and feeling physically less able can contribute to absenteeism and even prompt employees to leave their jobs altogether.

• Legal Obligations Under the Equality Act 2010

EHRC’s guidance emphasizes an employer’s legal obligations, particularly under the Equality Act 2010 (EqA 2010), concerning protected characteristics such as disability, age and sex. It highlights the potential risks of claims for failure to make reasonable adjustments, direct and indirect discrimination, harassment and victimization. Additionally, it emphasizes the imperative for employers to conduct workplace risk assessments in accordance with health and safety legislation.

Accompanying the guidance are three videos. The first video elucidates how workers experiencing menopausal symptoms may be protected under the EqA 2010. The second video offers practical examples of adjustments employers can implement to support their workers effectively. These adjustments may range from changes in the physical work environment to promoting flexibility in work arrangements. Notably, the guidance advocates for recording menopause-related absences separately to mitigate discrimination risks.

The third video highlights the importance of fostering open conversations about menopause in the workplace. EHRC encourages inclusive dialogue involving all employees, not just management. Establishing an environment where workers feel comfortable discussing their symptoms and requesting adjustments is crucial. Suggestions include training sessions, lunch and learn opportunities, and the establishment of staff networks to provide support and encouragement.

EHRC’s guidance advocates for the introduction of a menopause policy outlining available support and guidance, which should be regularly communicated to all employees.

The guidance and videos can be located here: Menopause in the workplace: Guidance for employers | EHRC (equalityhumanrights.com)

On February 8, 2024, the Home Office released an updated version of its Employer’s Guide to right to work checks. This latest edition brings significant changes and clarifications aimed at ensuring compliance and safeguarding against illegal employment practices.

Key highlights of the updated guide include:

1. Increased Civil Penalties: The maximum civil penalty for non-compliance has been raised, now standing at £45,000 per illegal worker for a first breach and £60,000 per illegal worker for repeat breaches. This emphasizes the gravity of ensuring accurate and thorough right to work checks.

• Removal of 28-Day Concession: The previous 28-day concession allowing late applications to the EU Settlement Scheme for certain employees has been eliminated. Employees, including EEA nationals and non-EEA national family members hired on or before June 30, 2021, must now hold a lawful immigration status permitting them to work in the UK. Employers are mandated to take appropriate action upon identifying employees lacking the right to work, which may involve seeking support from the Home Office or terminating employment after taking legal advice.

• Supplementary Evidence: Employers are now advised to obtain additional evidence when hiring individuals engaged in “supplementary employment,” where they work under another employer for their primary role. This precaution ensures compliance with regulations limiting supplementary employment to 20 hours per week.

These updates underscore the Home Office’s commitment to strengthening the integrity of the UK’s workforce and holding employers accountable for upholding immigration laws. By adhering to the revised guidelines, businesses can mitigate risks associated with illegal employment. The guide can be located here: Employer’s guide to right to work checks: 8 February 2024 (accessible) – GOV.UK (www.gov.uk)

On February 20, 2024, the Department for Business and Trade (DBT) unveiled a list of 524 employers who fell short of meeting the national minimum wage (NMW) following investigations conducted by HMRC between 2015 and 2023. The investigation resulted in the repayment of nearly £16 million to over 172,000 workers, with maximum penalties of up to 200% of the underpayment.

The common reasons included:

• Deductions from wages for various items including food, uniforms, equipment, childcare costs and salary sacrifice schemes.
• Instances of unpaid working time, stretching from pre- and post-shift work to rounded clock-in times and unpaid travel time.
• Failures to pay the correct rate to apprentices, inaccuracies in applying accommodation offsets and discrepancies in paying workers based on their work type.

This latest revelation serves as a reminder to employers of the importance of adhering to NMW regulations.

The list can be located here: Over 500 companies named for not paying minimum wage – GOV.UK (www.gov.uk)

On February 20, 2024, the Chartered Institute of Personnel and Development (CIPD) released a comprehensive guide aimed at fostering neuroinclusion within the workplace, focusing mainly on autism and ADHD.

The guide offers insights into the intricate realm of neuroinclusion, beginning with essential definitions that set the stage for understanding. It emphasizes the importance of engaging with employees to determine appropriate language usage and highlights the significance of terms such as “neurodivergent” and “neurotypical.”

Central to the guide is the concept of “neurodiversity” as a spectrum of human brain functioning and “neuroinclusion,” as inclusion of neurodiversity by “consciously and actively including all types of information processing, learning and communication styles”. The guide emphasizes that despite the critical role diversity of thought plays in fostering innovation and creativity, the aspect of neurodiversity within organizational diversity, equity, and inclusion (DEI) remains substantially overlooked.

To foster a neuroinclusive workplace environment, the guide suggests employers:

• Deliberately considering office design;
• Promote flexibility in work arrangements regarding time and location, while also accommodating diverse preferences in communication styles, instructions, and meeting formats;
• Develop a culture of psychological safety where individuals feel empowered to seek support;
• Acknowledge the unique needs of each person, even within shared neurodivergent identities;
• Equip managers with the skills to facilitate open conversations and encouraging all staff members to request workplace adjustments to normalize the process; and
• Cultivate a neuroinclusive culture through various means, including raising awareness of neurodiversity through training initiatives.

The guide further suggests integrating neurodiversity into recruitment and promotion procedures. This involves providing neuroinclusive interview training, exploring alternative assessment techniques and offering diverse career paths.

To initiate the journey towards neuroinclusion, the guide advises employers to:

• Engage with employee resource groups to outline the strategic approach.
• Offer training and support materials with references to expert organizations;
• Inviting staff to share personal experiences; and
• Conduct a thorough review of policies, processes, and technology to ensure neuroinclusivity.

The guide can be located here: Neuroinclusion at work | CIPD

In the recent case of Steel v Spencer Road LLP (t/a The Omerta Group) [2023] EWHC 2492 (Ch), the High Court ruled that a bonus clawback provision in an employment contract did not amount to a restraint of trade.

In January 2022 Mr Steel, the claimant received a bonus of £187,500 from his employer, Omerta. In February 2022 he resigned from the company.

Mr Steel’s employment contract contained a clawback clause which required him to repay the bonus if he left or was given or gave notice within 3 months of it being paid. As a result of him resigning this activated the clause.

The claimant refused to repay the bonus back, therefore Omerta served a statutory demand on him.  The claimant appealed to the Insolvency and Companies Court (ICC) to have the demand set aside and argued that the clawback provision was an unreasonable restraint of trade. The ICC dismissed this argument, but the claimant later appealed to the High Court.

The High Court dismissed the appeal and held that:

• The ICC was correct to  conclude that a contractual clawback provision was not a restraint to trade.  Even though a bonus scheme was conditional on the employee staying in his employment for a certain amount of time, it operated as a disincentive to resigning. The clawback clause did not amount to a restraint of trade.