UK Employment Law Coffee Break: Handling comments around beliefs, preparing for April 2025, and pay transparency in Europe

Employee constructively dismissed where disciplinary action taken over comments made about 'gender-critical' beliefs

The claimant was employed as a "Relationship Manager, Diversity". The case arose from a comment she had included on a spreadsheet calling for internal gender awareness training and "fair treatment to all staff" which had been circulated by a staff member to other staff arising from concerns about funding granted to registered charity, the LGB Alliance.

The LGB Alliance holds the position that sex is binary and (for the vast majority of people) determined at conception. The tribunal termed this a "gender-critical" belief which was protected by the Equality Act 2010. It noted that the LGB Alliance was viewed by some as a "transphobic" or "anti-trans" organisation. 

The claimant's comments were based on remarks she had heard following an online staff drop-in session (which she did not herself attend) where the grant had formed part of the discussions with some participants expressing the view that the organisation was "transphobic" and calling for delivery of trans awareness training. The claimant's comment was that “If I came to work one day, and attended a drop-in session where staff members were openly making racist statements, and asking [their employer] what protection would be offered to them as race critical staff members – I would feel terrified - I can’t imagine what my trans and [non-binary] colleagues are feeling right now. I’m very concerned that gender critical staff members make funding decisions, and believe it is of the utmost importance that trans awareness training is delivered and also training about our public sector equality duty – it shouldn’t be taken as given that everyone comes to work with no discriminatory views. We can’t necessarily ‘train’ people out of being transphobic, but we can make it clear that we don’t tolerate transphobia – by not tolerating it.”

A small number of staff members alleged that her comments (along with others made by some other individuals) created a hostile environment. The claimant was subsequently requested by HR to attend a disciplinary investigation meeting. She replied that she felt "anxious and frightened" and needed more time to prepare. She also raised a complaint under her employer's Dignity at Work policy regarding the make-up of the investigation panel and explained in an email that her comment merely sought to explain how she would feel if discriminatory statements were made about her protected characteristic, which she identified as “race and/or colour”, so that she could show empathy with how trans colleagues felt. She was subsequently invited to a disciplinary hearing without warning. The claimant resigned complaining constructive unfair dismissal.

Tribunal upholds constructive unfair dismissal claim

The tribunal noted that here the claimant had made "a one-off comment on a Spreadsheet, naming no specific colleagues and in far less virulent language than other comments" which had been made. As such, the tribunal "was surprised" that the employer's first step was not to "sit down with the claimant and talk through her comment and its impact. Had that happened we find that it would have become clear that the claimant's comment was hasty, ill-informed and ill-thought through but clearly not intended to cause the hurt and upset which it did". That approach would also have avoided the employer inviting the claimant "out of the blue" to a disciplinary investigation meeting without proper cause and the subsequent failure to deal with her related Dignity at Work complaint. There was no basis for a conclusion to have been formed that the claimant was "reluctant to engage with the investigation process"; she was genuinely anxious about the process and the ethnic make-up of the investigation panel. These actions supported the fact that there was a break down in trust and confidence causing the claimant to resign. 

Next steps 

More issues are arising in the workplace where an arguably misplaced comment is made, and over how an employer should approach it given the inevitable sensitivities the comment may have generated.

It is important for employers to take a step back and ensure that their response is proportional. In many instances, an informal discussion may be appropriate and assist in de-escalating an issue without the need for a formal process to be instigated. Employers should also ensure that any grievance raised alongside a disciplinary process is managed carefully and consideration given to whether or not the two processes should run in tandem or whether it is appropriate to adjourn the disciplinary process to ensure any concerns are dealt with.  

This decision also follows closely on the back of the recently reported Court of Appeal decision in Higgs which highlights the careful assessment that employers will need to undertake when faced with an individual raising objections over beliefs held by another.

Employers should ensure that managers are trained in handing these situations; it is important that all individuals feel able to raise genuine concerns and that these are dealt with sensitively and constructively. Employers should also revisit communications, social media and other related policies to ensure that these set out clearly their expectations as to how individuals communicate with each other and the use of social media while in employment, including the potential damage to the business and the risk of discriminating, bullying or harassing another individual.  

What do employers need to prepare for this April?

While much attention is focused on the Employment Rights Bill, which has received its third reading in the House of Commons this week before moving to the House of Lords, it is important not to forget the changes that will be coming into force this April for which employers will need to ensure they are prepared. 

Details of any statutory increases to the Employment Tribunal compensation limits and other statutory payments, including statutory redundancy pay, are still awaited. If and when announced, any new rates are likely to come into force on 6 April 2025 and will apply to any relevant events occurring on or after that date. Likewise, there may be a re-evaluation of the Vento Bands used by the Employment Tribunal in determining injury to feelings awards.

National Living and National Minimum Wage increases

The government has previously announced the increases to the statutory minimum pay rates which will apply from 1 April 2025 (in line with the Low Pay Commission recommendations) as follows:

• National living wage (NLW) for 21 and over: £12.21 (6.7% increase)
• National minimum wage (NMW) 18 to 20 year old rate: £10.00 (16.3% increase)
• NMW 16 to 17 year old rate: £7.55 (18% increase)
• Apprentice rate: £7.55 (18% increase)
• Accommodation offset: £10.66 (6.7% increase).

These rates reflect the government's intention to achieve a single adult rate by narrowing the gap between the NLW and NMW year on year in order to achieve a single adult rate. The government has requested that under 18 and apprentice rates are set as high as possible without damaging the employment prospects of each group.

Statutory 'family leave' and sick pay rates

From 6 April, statutory pay rates will increase:

• Statutory sick pay will increase from £116.75 to £118.75 per week.
• Statutory maternity pay, maternity allowance, statutory adoption pay, statutory paternity pay, statutory shared parental pay and statutory parental bereavement pay will increase from £184.03 to £187.18 per week. The same rate will apply to statutory neonatal care pay (see below).
• The lower earnings limit to qualify for statutory payments will increase from £123 to £125, except for maternity allowance which will remain at £30 per week.

National Insurance increase for employers

The government is raising the rate of employer's NICs from 13.8% to 15% from 6 April 2025. In addition, the government will reduce the threshold at which employers start paying NICs from £9,100 to £5,000 per year from 6 April 2025 until 5 April 2028 (after which it will be increased by the consumer price index).

In an attempt to reduce the impact of these NICs changes for employers, some changes are also being made to the employment allowance (which allows businesses with employer NICs bills of £100,000 or less in the previous tax year to deduct an amount from their employer NICs bill). The government will increase the employment allowance from £5,000 to £10,500 from 6 April 2025 and remove the £100,000 threshold for eligibility, expanding this to all eligible employers with employer NICs bills from 6 April 2025.

Statutory right to neonatal care leave and pay

The new statutory right to neonatal leave and pay will come into force from 6 April 2025 for eligible employees and will apply to children born on or after 6 April 2025 where neonatal care starts within 28 days of birth and where the child goes on to spend seven or more continuous days in neonatal care. Please read more.

Employers will now need to ensure that they have policies in place reflecting this new statutory entitlement. The statutory regulations expressly provide for an employer to operate separate notice requirements and to offer enhancements to the statutory position. It will also be important to ensure that HR and managers are aware of the new entitlement and that it applies to both parents who qualify under the regulations – not only so that they can provide reassurance to employees at what will inevitably be a stressful time but also to ensure that workloads and absences are managed effectively and appropriately. Employers will also need to ensure clear communications and manage expectations particularly where a baby is born before 6 April 2025 but requires neonatal care.

We are currently awaiting government guidance which has been promised ahead of 6 April 2025 and we are also expecting guidance from Acas to support employers.  

Webinar on changing employment legislation in Europe 

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