In our April 2024 legal blog, the CIPD explores the landmark ruling from the Supreme Court in Mercer v Secretary of State for Business and Trade. 

Plus, while multiple new employment laws commenced this month, there are notable further changes brewing... 

Why the Supreme Court ruling matters 

It is hard not to have not noticed the Mercer case that returned in April. The ruling sets a legal precedent signalling a step-change in the approach to striking workers’ rights.  

The background to the case is complex; a worker and trade union member took her employer to court after a dispute around payments for sleep-in shifts and the employers’ actions following subsequent strikes...  

Since the 1970s employees have been protected from being dismissed for taking part in industrial action. What was being questioned in the Mercer case was whether the law suitably protects workers from other detriment. For example, actions that could prelude dismissal, such as having discretionary benefits withdrawn or being suspended. 

The Supreme Court ruled that UK law does not suitably protect workers of these sanctions (short of dismissal), therefore indicating that the UK’s current law is incompatible with the Human Rights convention and domestic Human Rights Act.    

In practical terms, from this point forth, employers who take any action to dissuade employees from taking part in industrial action need to be extremely wary. In the long term, all employers should expect new legislation to increase the protections for striking workers.   

Change your procedures now... 

April 2024 has seen a raft of employment law changes come into effect. If you need a recap, read through the CIPD employment law timetable for up-to-date information and page links.  

Meanwhile, various laws are brewing ...on the back of P&O’s mass dismissals in 2022, a new statutory legal framework for ‘fire and rehire’ is effective from July 2024, businesses working in industries that deal with tips need to have a policy and procedure for fair allocation in practice by 1 October, plus any industry distributing shifts in an irregular patterns should note that workers’ rights increase in this area from September. 

On top of all this, people professionals looking ahead should take note of the imminent action point relating to the Worker Protection (Amendment of Equality Act 2010) Act 2023.  

The Act brings a significant shift in the burden of proof for sexual harassment at work claims. From the end of October 2024, it will be illegal for employers to not take continuous and proactive steps to prevent sexual harassment in the workplace. Tick-box ‘we did this training’ exercises will not cut it at tribunals. Instead, by 25 October, for England, Scotland and Wales, employers will need to demonstrate that they provide training and ongoing programmes aimed at taking “reasonable steps” to protect employees and workers from unwanted sexual harassment. 

The EHRC is expected to issue updated guidance on how to comply with the new law and, in the interim, employers are advised to organise policies and train staff in advance of commencement. 

What are your rights as an unpaid carer for a disabled dependant? 

Finally, it is worth noting that all those April changes have impacted automatic rights for many workers. As more individuals are placed with the additional care of a loved one, leave allowances have increased slightly and the right to request flexible and predictable working patterns could benefit those with dependants.  

Please note that this is a brief overview of legislation rights; for the detailed nuances of such rights please consult the law pages linked to on the legislation.  

Carers' leave 

• Leave right 

• One ‘week’ of unpaid leave in a 12-month period (a week is the length of time that individual normally works in seven days). May be taken as half or full days. 

• Notice period 

• Notice of double that of the leave; for example, two days’ leave requires four days' notice. 

• Refusal grounds 

• Requests for such leave cannot be rejected but employers may ask for such leave to be moved. Employers are obliged only to make such a request in the instance that the leave would seriously disrupt the business. 

• Qualifying service period 

• None.  

 

Emergency dependants’ leave 

• Leave right 

• A ‘reasonable’ amount of unpaid time off for emergencies. 

• Notice period 

• None, if the leave is unforeseen. 

• Refusal grounds 

• Where there is a possible alternative person to take the leave and/or where the amount of time requested off is unreasonable. 

• Qualifying service period  

• None. 

 

Unpaid parental leave 

• Leave right 

• 18 weeks’ unpaid leave per child until your child turns 18. For parents with disabled children, this leave can be taken in blocks of a day or weeks. For parents of non-disabled children, this leave must be taken in weeks.  

• Notice period 

• At least 21 days' notice.  

• Refusal grounds 

• An employer cannot refuse the leave; however, they can ask to postpone it where the business would be particularly disrupted. 

• Qualifying service period 

• One year in employment with the employer. 

 

Flexible working  

• Leave right 

• No additional leave, but an employee has the right to request flexible working hours. 

• Notice period 

• Allows for two requests in a 12-month period. 

• Refusal grounds 

• Only able to be refused if the employer can demonstrate that the request has been considered reasonably and that it is refused on certain business grounds. 

• Qualifying service period 

• None. 

 

Predictable working 

Caring for dependants that need alternative care can be particularly difficult where the worker has no knowledge of the hours they will be working from one week to the next. From September 2024, it is proposed that the Workers (Predictable Terms and Conditions) Act will change this. The Act aims to introduce the following rights: 

• Leave right 

• No additional leave but a right to request a predictable working pattern. 

• Notice period  

• Likely to allow for two requests in a 12-month period. 

• Refusal grounds 

• Employers must accept the request unless there is a genuine business reason (as specified in the Employment Rights Act) not to do so. 

• Qualifying service period 

• 12 continuous weeks within 26 weeks commencing the request.