Employment Update – March 2025

New Right to Switch Off is Abandoned

Reports suggest that the implementation of the “Right to switch off” is no longer going ahead.

The proposal was a key element of Kier Starmer’s “New Deal for Working People” and would allow workers to ignore work-related emails and calls outside of their working hours.

This was expected to be added as part of the Employment Rights Bill, but the Government is expected to confirm its removal when amendments to the Bill are put forward this week.

What’s going on with the Employment Rights Bill?

It is making its way through the House of Commons. Some significant amendments have been proposed by MPs, and they will be considered at the Report Stage.

We will continue to provide updates as it moves through Parliament. In the meantime, the proposed amendments include:

Domestic Abuse

• Regulations requiring the Secretary of State to provide statutory leave for victims of domestic abuse, with a minimum of 10 days’ leave (although it is unclear whether this would be paid or unpaid).
• Making it unlawful to subject a worker to a detriment, or unfairly dismiss a worker, on the grounds they are a victim of domestic abuse or have been affected directly by domestic abuse.
• A new duty on employers to take all reasonable steps to prevent their workers (and contract workers) from experiencing domestic abuse in the course of employment, and to have a domestic abuse policy in place.

Discrimination and harassment

• The re-introduction of the right to statutory Discrimination Questionnaires, which will allow workers to question their employer on acts of discrimination, or discriminatory practices.
• The proposal to include caring as a protected characteristic within the Equality Act 2010.
• A new duty to prevent violence and harassment in the workplace.

Leave and pay

• A requirement for a consultation on the introduction of protected paternity or parental partner leave for all employees (with regulations to be introduced within 12 months of the consultation).
• A proposal to make carers leave a paid entitlement.
• A proposal to extend statutory adoption pay to the self-employed and contractors.
• An entitlement to kinship care leave, with kinship care being defined as an arrangement where a child is raised by a friend, relative or extended family member other than a parent. It appears that this would be a similar entitlement to other types of family leave, and those eligible could be entitled to up to 52 weeks leave.
• The extension of statutory bereavement leave and pay for those who suffer pregnancy loss pre-24 weeks.

Right to be accompanied

• The expansion of the right to be accompanied to a “certified companion”.

Expressing controversial beliefs in the workplace

• What is allowed?  Court of Appeal clarifies rules

The case of Higgs v Farmor’s School set a crucial precedent regarding how the expression of controversial beliefs in the workplace should be handled.

The case concerned Ms Higgs, a secondary school teacher and Christian, who was dismissed for gross misconduct due to posting a series of Facebook posts that her employer considered to be homophobic and transphobic.

The employment tribunal initially dismissed her claim of discrimination and harassment, saying that the reason for her dismissal was the expression of her beliefs, not the beliefs themselves. They said that the way she expressed her beliefs could have caused the school reputational damage.

She appealed this decision, and the Employment Appeal Tribunal found that the tribunal had failed to consider whether the school’s response was proportionate. It was further appealed, and the Court of Appeal also found in favour of the Claimant, saying that the action taken by the school was disproportionate.

It held that (i) the Claimant’s belief was protected under the Equality Act 2010 and (ii) it is unlawful to dismiss an individual where they merely express a protected belief to which the employer objects; thus, such a dismissal can only be lawful where there is “something objectionable” in the way the belief is expressed.

Although the Claimant’s Facebook posts contained insulting references to the LGBT community and could cause damage to the school’s reputation, the CoA said:

• There was nothing to suggest the Claimant was inciting hatred or disgust toward this group;
• Nothing in her posts suggested that her views represented those of the school;
• She had not expressed such views in work, and had not displayed any discriminatory attitudes in her treatment of pupils.

This case provides authority on the protections afforded to employees, confirming that an employee’s beliefs can be protected even where these are deemed controversial or not widely accepted. Only in circumstances where the expression of a belief could be considered objectionable could an employer justify dismissal. As well as this, the setting in which the beliefs are expressed, and how far these can be linked to their employer, will also be important factors in determining whether any action taken is justifiable, with this case demonstrating the difficulty an employer could face in taking action against an employee who expresses their beliefs outside of work. Employers should also be careful placing weight on reputational damage as a justification for their actions if they cannot demonstrate that this in fact occurred as a result of the worker expressing their beliefs.

Worker status – recent case of Ter-Berg v Malde and another.

The Employment Rights Act defines a worker as someone who is required to undertake work personally and who is not carrying out the work as a business undertaking to which the employer is a customer or client. The test of whether someone is considered to be employed under a contract of employment involves examining elements such as the degree of control the employer has over them, the mutuality of obligation between the parties and how integrated they are in the business. This is known as the “irreducible minimum” test and is set out in the High Court case of Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance.

The Claimant in the Ter-Berg case entered into an “associate agreement” with the Respondent which stipulating that “nothing in the agreement shall constitute a contract of employment”. Clause 36 of the agreement said that, in the event the Claimant was unable to work for more than 20 days due to illness, he was required to use his best endeavours to arrange for a locum replacement.

The issue of status was determined at a preliminary hearing, at which, the Employment Tribunal determined that the Claimant was not an employee. They said that the “irreducible minimum test” for a contract of employment laid out in the Ready Mix case was not satisfied.

The Claimant appealed this decision and was successful on the basis that the tribunal had erred in concluding clause 36 of the agreement meant there was no element of personal service required, and there was in practice, a limited right of substitution consistent with personal performance. They said this fell into the “third” category of substitution identified in an earlier case (Pimlico Plumbers) which is a “right of substitution only when the contractor is unable to carry out the work which, subject to any exceptional facts, is consistent with personal performance”.

This was remitted to the tribunal who, despite this, concluded that the Claimant was still not an employee. They said that, irrespective of a proper construction of clause 36, they were bound by the earlier tribunal’s decision that the irreducible minimum test was not met and there were “exceptional facts” which rendered the clause inconsistent with personal performance (but they did not specify whether there was in fact a requirement for the Claimant to carry out the work personally). This resulted in another preliminary hearing to determine status.

At that preliminary hearing, the tribunal again decided the Claimant was not a worker, as to not do so would be inconsistent with their earlier findings that the “irreducible minimum” test had not been met. It also found there was no requirement for the Claimant to carry out the services personally. The Claimant again appealed.

The EAT found in the Claimant’s favour. They said that the tribunal erred in deciding it would be inconsistent with its previous conclusions regarding whether the Claimant was an employee, as (i) it was not bound by those conclusions and (ii) those conclusions did not automatically mean that the Claimant was not a worker (due to the two different legal tests for an employee and worker). They also said that the tribunal erred in determining the personal status element as they failed to apply the correct legal test (per the Pimlico Plumbers case). Thus, in the absence of something pointing away from there being a personal service requirement, the tribunal should have concluded the personal service element of the test was met.

This case serves as an important reminder to employers that requiring personal service from a “self-employed” individual will likely render them a worker, or perhaps an employee. Employers should therefore ensure, in practice, where self-employed individuals are engaged, that a real right of substitution exists, which would point the individual toward self-employment status were their status ever in dispute.

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