Welcome to this month’s edition of Worked Up 2024 – your one-stop shop for the latest updates in employment and immigration law.

In this month’s issue, we examine the case of an actress whose views on homosexuality resulted in her dismissal, consider whether it is reasonable to dismiss an otherwise exemplary employee for a racist joke, explore when an employee will be considered to have sought to take parental leave in the context of an automatic unfair dismissal claim and summarise the recent updates to various employment-related rates and limits (including national minimum wage and statutory sick pay).

We’ve also recently circulated an article on the Home Office’s digital strategy, which aims to transition all BRP and BRC holders to ‘eVisas’. These changes will impact both migrant and sponsored workers and we recommend that employers should start notifying affected staff of these changes, In case you missed it, the article can be found here.

If you would like to discuss any of the below updates, please do get in touch. Alternatively, if you would like to receive these updates directly to your inbox, please subscribe here.

Actor terminated for views on homosexuality

EAT is (understandably) not amused as dismissal for racist joke found to be within range of reasonable responses

When is an employee considered to have “sought” to take parental leave for automatic unfair dismissal purposes?

Annual updates to employment-related rates and limits

Ella Taylor explains why the Home Office are transitioning to digital visas and what employers need to know before the change is introduced:

Seth Roe discusses how new holiday pay legislation will affect the Film & TV industry:

If you want to stay ahead of the curve and keep updated on the key employment and immigration changes (including proposed legislation, consultations and case law) on the horizon over the next 24 months, check out our “What’s on the horizon” tracker.

Ms Seyi Omooba v (1) Michael Garrett Associates Ltd (ta Global Artists) (2) Leicester Theatre Ltd: [2024] EAT 30

Facts: Ms Omooba, a Christian actress who had expressed views that she did not believe homosexuality was “right” or that people could be born gay, brought claims of discrimination, harassment, and breach of contract against her employer (Leicester Theatre Trust Ltd) and her agent (Michael Garret Associates Ltd). Ms Omooba had been hired to play the lead role of Celie in a stage production of “The Color Purple“; Celie, for those who haven’t read the book or watched the excellent Whoopi Goldberg feature film, is considered to be an iconic lesbian role. Following a social media backlash over her past comments on homosexuality, both her employment and agency contracts were terminated.

Ms Omooba’s claims were grounded in the contention that her dismissal was linked to her religious beliefs, specifically her views on homosexuality, which she had expressed in a Facebook post back in 2014. Under the Equality Act 2010, religion and/or belief are protected characteristics and it is unlawful to discriminate against an individual who holds a particular religious or philosophical belief which qualifies for protection.

Judgment: The Tribunal concluded that Ms. Omooba’s religious beliefs were protected under the Equality Act, but that her contracts were not terminated due to those beliefs. Rather, her contracts were terminated due to the unmanageable situation created by the public’s reaction to her casting in the role.

Takeaway: This case highlights the difficulty in navigating the delicate balance between protecting an individual employee’s right to hold and express religious and philosophical beliefs and the importance of maintaining workplace harmony, a positive reputation, and adhering to inclusive principles. It emphasises the need for clear policies, careful handling of issues that may result in reputational damage, and the potential complexities involved in managing employment relationships in industries where personal beliefs can intersect with professional roles. This judgment won’t be the last word on belief discrimination cases, especially in light of Higgs v Farmor’s School, which will make its way to the Court of Appeal in October 2024.

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Vaultex UK Ltd v Mr Robert Bialas [2024] EAT 19

Facts: The recent decision by the Employment Appeal Tribunal (“EAT”) in Vaultex UK Ltd v Bialas sheds light on what actions an employer can take when faced with an employee with an exemplary record who has committed an act of misconduct. In this case, the employee in question posted a racist joke on the company’s intranet page. The employer then dismissed the employee due to their zero-tolerance policy towards discriminatory language. The employee subsequently claimed unfair dismissal.

Judgment: The Tribunal initially ruled in favour of the employee, stating that terminating the employee, who had a long period of service and an otherwise unblemished record, for this single act was beyond the reasonable responses that the employer could take. However, the EAT overturned this decision on appeal. The EAT found that the Tribunal had failed to apply the “band of reasonable responses” approach and had instead substituted its own opinion for that of the employer.

The EAT clarified that the key question was whether the employer’s decision to dismiss the employee fell within the reasonable range of responses available to the employer. Although the employee expressed remorse for their actions, the EAT found that the dismissal did indeed fall within the spectrum of reasonable responses, particularly as the employer had strong Equality, Diversity, and Inclusion values, which were well known to the employee.

Takeaway: While not groundbreaking, the EAT’s decision does lend support to any employers who stand by their core values and come to decisions which are justified and consistent with their own policies. Terminations can be tricky and it can be difficult for employers to strongly enforce policies against long-serving employees who otherwise are performing well. However, the “band of reasonable responses” test acknowledges that employers have wide discretion when deciding on appropriate sanctions and, accordingly, declaring a “zero-tolerance” approach to discriminatory language may have serious consequences for employees.

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Hilton Foods Solutions Ltd v Andrew Wright: [2024] EAT 28

With the recent updates to paternity leave coming into force this month, the case of Hilton Foods Solutions v Wright is a well-timed reminder of the legal protections that are in place to safeguard employees who wish to take parental or maternity leave. Enshrined in the Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312) (“MPL Regulations”) and the Employment Rights Act 1996 are legal protections which state that an employee will be automatically unfairly dismissed if the reason, or principal reason, for their dismissal, is that they “took or sought to take” parental leave. The key focus in this case was this: when is an employee deemed to have “sought to” take parental leave?

Facts: Mr Wright was dismissed by his employer, Hilton Food Solutions, purportedly by reason of redundancy. Mr Wright believed that the real reason for his dismissal was that he “sought to take” parental leave and, on this basis, he filed an automatic unfair dismissal claim against Hilton.

While Mr Wright had informally discussed parental leave with other employees, he had not submitted a formal written application in accordance with the MPL Regulations. Hilton applied to strike out the claim on the basis that there was no reasonable prospect of success as Mr Wright had not complied with the MPL Regulation’s notice requirements and, therefore, could not be considered to have “sought to take” parental leave.

Judgment: The EAT held that there is no absolute requirement for the employee to give notice in accordance with the MPL Regulations in order for an employee to have been found to have “sought” to take parental leave.

The EAT found that the Tribunal is best placed to determine the meaning of the word “sought” by considering the relevant facts and interpreting the MPL Regulations in a wide and purposiveful manner. While giving notice in accordance with the MPL Regulations is one way that an employee can evidence that they sought parental leave, the EAT’s decision confirms that it is not the only way.

Takeaway: While the EAT’s decision very much reflects a common sense approach, it does create some ambiguity for employers who dismiss an employee after they have made informal enquiries about taking parental leave. Dismissals will not be automatically unfair provided the employee has not been dismissed because they have sought to take parental leave. However, to establish this, it is important that clear (and, preferably, documented) reasons for dismissal unrelated to the employee seeking to take parental leave are established before a decision is made to dismiss the employee.

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The annual updates to employment-related rates and limits (which are updated in response to inflation) are now in effect. These changes impact national minimum wage, employment tribunal awards and statutory redundancy payments, amongst other payments. This year’s key updates are set out below:

Limits on Employment Tribunal Awards

Compensation for unfair dismissal has increased from £105,707 to the lower of either £115,115 or one year’s pay.

The limit on a week’s pay used for calculating statutory redundancy pay (and the unfair dismissal basic award) has also increased from £643 to £700.

National Minimum Wage

As of 1 April 2024, national minimum wage has increased as follows:

• The national living wage (for workers aged 21 and over) has increased from £10.18 (for those aged 21 to 22) and £10.42 (for those aged over 23) per hour to £11.44 per hour.
• The standard minimum wage rate for younger workers (aged 18 to 20) has increased from £7.49 to £8.60 per hour.
• The standard minimum wage rate for workers aged 16-17 and apprentices has increased from £5.28 to £6.40 per hour.

These changes mark the most significant increase in the national minimum wage to date.

Statutory Sick Pay

As of 6 April 2024, statutory sick pay has increased from £109.40 to £116.75 per week.

Statutory maternity, paternity, adoption and shared parental pay

As of 7 April 2024, statutory maternity, paternity, adoption and shared parental pay has increased from £172.48 to £184.03 per week.

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