UK Employment Law Coffee Break: Looking ahead to 2025, accents in the workplace, and our GDPR for HR event

Looking ahead to 2025 with our employment law reform microsite

On 16 January we will be holding our "looking ahead" webinar at which our employment lawyers Emma Wills Davies and Nicholas Haywood will discuss some of the key features of the employment law reforms being progressed by the new government, with a specific focus on bringing your workforce back to the office, protecting staff from sexual harassment and managing increased risks arising from the new unfair dismissal proposals. Please register here to join us.

You can track the status of the government's employment law reforms and actions to consider on our dedicated microsite. Frances Lewis has also written for People Management magazine, about the UK's Employment Rights Bill, agency workers and how HMRC is looking more closely at staffing supply chains.

Employment partner, Julian Hemming, alongside Martin Mason (CEO and co-founder, TalentMapper) and Matt Norbury (CEO and founder, Each Person), also explored this week the legal implications and fall out from the general election and the ongoing challenges and opportunities connected with AI and technology, together with the challenges around health and wellbeing in a webinar for HR World. View the recording.

New statutory pay increases announced from April 2025

The following anticipated increases to statutory payments have also been announced from April 2025 (subject to confirmation):  

• 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 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.

Increases to the statutory national minimum wage rates have already been announced in the autumn budget, alongside the increases to the rate of employer national insurance.

EAT rules that comments about an employee's accent could be harassment under the Equality Act 2010

The Employment Appeal Tribunal (EAT) has held that a tribunal was wrong to find that comments about an employee's accent did not amount to racial harassment because they were not racially motivated.

The claimant, who was of Brazilian national origin, resigned during her probationary period (which had been extended twice) and subsequently brought a number of claims in the Employment Tribunal, including for harassment related to race on the basis of comments which had been made to her by her line manager. The claimant also alleged victimisation on the basis that HR had refused to share notes of an informal meeting because it might be used in tribunal proceedings for race discrimination.

The Employment Tribunal dismissed her claims on the basis that the alleged harassment was not because of the claimant's nationality; the comments made about her accent related to her "intelligibility or comprehensibility when communicating orally".

It also found that the meeting notes had not been withheld here in case they were used by the claimant in a discrimination claim; the HR manager would have withheld meeting notes from any employee who indicated that they planned to bring any tribunal claim, even where the circumstances did not include a discrimination complaint.

The EAT overturned the decision of the tribunal and upheld the claimant's claims of harassment and victimisation.

No requirement for a protected characteristic to have motivated the alleged harasser

The legal test for harassment is whether the conduct complained of is "related to" a protected characteristic, is unwanted and has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual complaining. There is no requirement for a "mental element equivalent to that in a claim of direct discrimination… there may be circumstances in which harassment occurs where the protected characteristic did not motivate the harasser".

The EAT observed that "an accent may be an important part of a person's national or ethnic identity. Comments about a person's accent could be related to the protected characteristic of race. Criticism of such an accent could violate dignity". However, it noted that "that does not mean that any mention of a person's accent will amount to harassment"; consideration will need to be given as to whether the statutory test under the Equality Act 2010 is satisfied.

Was the refusal to provide meeting notes materially influenced by the prospect of alleged unlawful discrimination?

In respect of the refusal by HR to provide the claimant with the requested meeting notes, the EAT referred to existing case law and noted that "the correct question for the Employment Tribunal in this case was whether the decision not to provide the notes was to a material degree influenced by the fact that a complaint of unlawful discrimination had or might be made". It was not correct to consider what action the HR manager would have taken with another employee who had indicated an intention to make a claim, such as one of constructive dismissal, but did not include a discrimination claim.

The tribunal was also wrong to conclude that the treatment could not be detrimental. The test for detriment is whether an employee might reasonably consider themselves to be disadvantaged in the workplace as a result of the treatment. While existing case law authority has held that an employer taking reasonable steps to preserve its position in discrimination proceedings is not detrimental treatment to the potential claimant, the tribunal had not considered the consequences of the alleged conduct in this case. The tribunal could have considered whether an employee who brings a grievance that might resolve issues with an employer, without the need for tribunal proceedings, might reasonably consider themselves disadvantaged by not being provided with the notes of a meeting.

What does this mean for employers?

The case has now been remitted back to a new tribunal to determine whether or not there was unlawful harassment and victimisation on the facts.

This decision is a reminder of the need for care when making comments which could be potentially related to an individual's race or any other protected characteristic as the motivation of the individual making the comment will be irrelevant.

The EAT noted that the harassment provisions are designed to be pragmatic, balancing the interests of employees against those of their employer and colleagues who may be accused of harassment. It noted that "it is in no-one’s interest that colleagues should constantly be walking on egg-shells" but "it is also important that proper protection is provided against violation of dignity at work".

Preventing workplace harassment is a top priority for employers, particularly in light of the new legal obligations that came into force in October 2024 which require employers to take reasonable steps to prevent sexual harassment in the workplace. The Employment Bill also provides for new legal protection in respect of third-party harassment across a broader set of protected characteristics, including race.

Many employers are revisiting their harassment and bullying policies and workforce training in light of these reforms and it would be sensible to consider, as part of this process, highlighting that the intention behind a comment is not a factor in whether or not it can amount to harassment and providing appropriate examples to assist employees.

The role of accents in the workplace is an area which employers should continue to pay attention to. We previously looked at the "Speaking Up" report by the Sutton Trust which discussed accents and social mobility in the workplace and which found that a quarter of employees had been mocked, criticised or singled out at work because of their accent. The report provides a number of recommendations for employers to tackle negative stereotypes and the impact they can have on how skills and abilities are judged.

Our next GDPR for HR event

We are holding our next GDPR for HR in person event in London on 12 February 2025 which will cover the following topics:

• Use of AI in the workplace
• Data subject access requests (DSARs)
• ICO enforcement

While the event is currently full, please do let us know if you would like to be added to the waiting list.

We also publish a regular GDPR for HR newsletter – if you are interested in receiving this please contact your usual Osborne Clarke contact or subscribe here.