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

November has seen the return of a Supreme Court decision in Deliveroo vs Independent Workers’ Union of Great Britain (IWGB). Riders for the company are not employees, but what does this mean for the people profession and the wider gig economy?  

In a busy month, a preliminary hearing has indicated that work-related stress can constitute a disability, the Autumn Statement has made changes to business investment and Statutory Rates, plus the UK Government has started to use its powers under the Strikes Act 2023 to propose Minimum Service Levels for key industries.  

Testing employee status: Deliveroo and the gig economy   

This week the UK Supreme Court (SC) has returned one of its highest-ever decisions on workers’ rights relating to the gig economy. Five SC judges determined that Deliveroo riders are not workers in an employment relationship, nor can they be represented by trade unions for collective bargaining.   

You 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. Yet, a limited right to substitute a worker, for example, in cases of illness, 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.  
• A legal review of the professional implications of the case can be found on the CIPD’s website.  

Work-related stress as a disability  

In a UK preliminary hearing (Mrs D Phillips v Aneurin Bevan University Local Health Board: 1601375/2022) the claimant, Mrs Phillips, stated that work-related stress was a long-term challenge. Indeed, she held a record of over 12 months of Fit Notes relating to the matter.  

In this instance, the judge agreed. In respect of the Equality Act 2010, the serious and long-term stress suffered by Mrs Phillips did constitute a disability.   

A full tribunal will decide whether she faced discrimination on the grounds of her disability.   

While this is not the first case of its kind, it is interesting to employers and people professionals. The case reminds us that stress claims can be brought on both a duty of care and as a disability. The hearing is certainly an issue to monitor over the coming months.   

Key takeouts from the 2023 Autumn Statement 

The November 2023 the UK Chancellor delivered the Autumn Statement, the last such statement before next year’s General Election. For people professionals the key takeouts 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 in order to support people back into work. Proposed reforms include changes to the Fit Notes system and reform to Work Capability Assessments (WCA).

5. Britain will have the ‘triple lock’ on pensions maintained. The ‘triple lock’ - a method of tracking state pensions to either the highest increase in prices, average earnings or 2.5% - will mean that 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 services (and light rail services) to run at a minimum of 40% of timetabled services.   
• Heavy rail infrastructure services maintained on “priority routes" 6am-10pm   

Border force and passport officials   

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

NHS ambulance teams   

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

Under the Strikes (Minimum Service Levels Act) 2023, the UK Government set ‘work notice’ requirements for MSLs industries. A ‘work notice’ is guidance identifying the workers that are required to work in the event of a strike. Following some confusion over what would be entailed in such a notice, the Department of Business and Trade have issued guidance on the “reasonable steps” that unions are expected to take when MSLs are set. They include;   

• Identify the members referred to in a work notice.  
• Encouraging individual members to comply with a work notice.  
• Communicating any changes to the wider membership.  
• Placing 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.