CIPD summarises employment law developments in October and November 2023 for England, Scotland and Wales. 

November saw the return of a Supreme Court decision in Deliveroo vs Independent Workers’ Union of Great Britain (IWGB), concluding that riders for the company are not workers. Work-related stress was reviewed in a preliminary hearing, and the outcome concluded that stress can constitute a disability. The Autumn Statement made changes to business investment and Statutory Rates. And the UK Government started to use powers under the Strikes Act 2023 to propose Minimum Service Levels for key industries.  

Testing employee status: Deliveroo and the gig economy   

The UK Supreme Court (SC) returned its decision on workers’ rights relating to the gig economy. Five SC judges determined that Deliveroo riders are not ’in an employment relationship', nor can they be represented by trade unions for collective bargaining.   

Members can find the full context of the case on the CIPD’s employment status guidance, but what does this mean for the gig economy right now?   

• Substitution is key. An unlimited right to substitute another worker suggests there may be genuine self-employment but a limited right to substitute a worker can be consistent with a contract to work.  
• Article 11 of the European Convention on Human Rights does not create a compulsory right to collective bargaining.  

Work-related stress as a disability  

In a UK preliminary hearing (Mrs D Phillips v Aneurin Bevan University Local Health Board) the claimant stated that work-related stress was a long-term challenge.  

The judge agreed that, in respect of the Equality Act 2010, the long-term stress suffered by Mrs Phillips did constitute a disability. A full tribunal will decide whether she faced disability discrimination.   

This case serves as a reminder that stress claims can be brought on both a duty of care and as a disability and is a consideration to monitor. 

Key takeaway from the 2023 Autumn Statement 

The UK Chancellor delivered the Autumn Statement in November. For people professionals the key takeaway include: 

1. UK National Insurance rates cut by 2% on earnings between £12,571 and £50,271. There are a potential 27 million people impacted by this change which will come into effect on 6 January 2024.  
2. National Living/Minimum Wage (NLW) increased for many, and the ‘adult’ rate age dropped to 21 years old. The following UK rates are effective from 5 April 2024:  

• Aged over 21 NLW will rise from £10.42 to £11.44. 
• Aged 18-20 NLW will rise from £7.49 to £8.60. 
• Aged 16-17 and apprentices NLW will increase from £5.28 to £6.40. 

3. In England, a two-year pilot is planned, putting £50 million into high-value apprenticeships, in ‘high-value industries’ such as engineering. 
4. Across the UK, £2.5 billion of funding is being proposed over the next five years to support people back into work. Proposed reforms include changes to the Fit Notes system and Work Capability Assessments (WCA).
5. The ‘triple lock’ will be maintained on pensions – where state pensions are tracked to either the highest increase in prices, average earnings or 2.5%. This means the state pension will increase by 8.5% from April 2024.

Minimum service levels in the event of strike action 

On 7 November 2023, the UK Government used its powers under the Strikes Act 2023 to propose minimum service levels (MSLs) for certain national infrastructure industries. Failing legal challenge, the MSLs would come into effect from the end of 2023:  

Passenger railway    

• Train and light rail services must run a minimum of 40% of timetabled services.   
• Heavy rail infrastructure services must be maintained on “priority routes" 6am-10pm.   

Border force and passport officials   

• Border services must be 'no less effective on a strike day compared to a non-strike day'.   
• Passport services concerning national security must be 'as effective on strike days as on a none strike day'.    

NHS ambulance teams   

• Emergency requests must be answered and triaged as if the strike were not taking place.  
• Requests for non-emergency patient transfer services via ambulance must be answered and triaged as if the strike were not taking place. Transport to be provided for patients where there is no alternative.  

Under the act, ‘work notice’ requirements were set for MSLs industries, with guidance identifying the workers required to work in the event of a strike. Guidance on union’s “reasonable steps” to be taken around MSLs include:   

• Identify the members referred to in a work notice.  
• Encourage individual members to comply with a work notice.  
• Communicate any changes to the wider membership.  
• Place an onus on picket supervisors to take reasonable steps to ensure that union members in the work notice are not encouraged to picket.  

Unions should ensure that they do not undermine any of the steps set in the work notice.