Welcome to the Spring Employment Law Update. In our employment and HR updates, Melissa Scott, Employment Solicitor outlines recent cases, updates to the law and other Employment and HR news. If you want to ensure you don’t miss the latest Employment and HR you can subscribe to our Employment Law Update Newsletter.
LEGISLATIVE DEVELOPMENTS
NEW RIGHTS FOR PARENTS: NEONATAL CARE LEAVE AND PAY
In 2023 The Neonatal Care (Leave and Pay) Act was passed by the government, which grants eligible employees with two new additional rights; the right to neonatal care leave and the right statutory neonatal care pay. The government has confirmed that these new rights, will come into force on 6 April 2025. The new rights will apply to all eligible parents of children born on or after 6 April 2025.
Similarly to other forms of family leave, parents who take neonatal leave, will have the right not to be subjected to detriment and/or dismissal due to them taking neonatal leave. Employees taking neonatal care leave will also be entitled to enhanced redundancy protection, likewise to employees on or returning from maternity leave.
Right to neonatal care leave
Once introduced, eligible parents will be permitted to take up to 12 weeks of leave if their baby has received neonatal care.
For these purposes, neonatal care shall mean care of a medical or palliative nature which continues without interruption for a period of a minimum of seven full days and which commences within 28 days of the baby’s birth.
The right to neonatal leave will be available to both parents, in addition to any other leave the parent may be entitled to (such as maternity, adoption or paternity leave). Neonatal leave must be taken within 68 weeks of the child’s birth. Neonatal care leave will be a day one right.
Right statutory neonatal care pay
The right to statutory neonatal care pay will depend on the employee meeting certain criteria. In order to be eligible to statutory leave pay, an employee must have 26 weeks of continuous service by the end of the week before the child’s admission into neonatal care.
Statutory neonatal pay will be paid at the statutory prescribed rate (initially £187.18 from April 2025) or 90% of the employee’s average weekly earnings, whichever is lower.
Next steps
In preparation for the introduction of these change, employers should consider updating their family leave policies to reflect the new rights. If employers currently offer enhanced pay for certain types of family leave, they should consider whether to appoint the same approach for neonatal leave.
CASE LAW UPDATE
DISMISSAL FOR GENDER-CRITICAL SOCIAL MEDIA POSTS WAS DISCRIMINATORY
In the case of Higgs v Farmor’s School, the Court of Appeal (“CoA”) has ruled that a school worker’s dismissal for gender-critical social media posts was discriminatory.
Facts
The claimant was employed as pastoral administrator and work experience manager in a secondary school. She was dismissed following a third-party complaint about her social media posts, which were perceived as homophobic and transphobic. The content the claimant’s posts were described as “offensive” and “inappropriate” by school. The claimant’s views were that children should be taught that gender is binary and not fluid and that same-sex marriage cannot be equated with traditional marriage between a man and a woman.
Following her dismissal, the claimant made claims of claims of direct discrimination and harassment for religious or philosophical beliefs. The Employment Tribunal (“ET”) found that the claimant held protected philosophical beliefs. However, the ET dismissed the claimant’s discrimination claim on the basis that she had not been discriminated against or harassed because she held those protected beliefs, but rather due to concerns that her social media posts could be perceived as homophobic or transphobic bringing the school’s reputation into disrepute.
The claimant appealed the ET’s decision. The Employment Appeal Tribunal (“EAT”) upheld the claimant’s appeal, finding that the ET failed to engage with whether there was a “sufficiently close or direct nexus” between the claimant’s social media posts and her beliefs. The ET remitted the case back to the ET for reconsideration.
Both parties appealed the EAT’s decision to the CoA. The CoA found that the EAT should not have remitted the case back to ET, but rather the EAT should have overturned the ET’s decision and ruled that the claimant’s dismissal discriminatory on the ground of religion or belief.
The school sought to justify the claimant’s dismissal on the grounds that the posts could cause damage to their reputation. However, the CoA found that “neither the language of the posts nor the risk of reputational damage were capable of justifying the Claimant’s dismissal in circumstances where she had not said anything of the kind at work or displayed any discriminatory attitudes in her treatment of pupils”.
Key takeaways
The key takeaway for employers from this case is that dismissing an employee purely because they have expressed a protected belief will likely be discriminatory (even if their views are not popular).
When faced with situations where employees are expressing their view on social media (which is unconnected with their employment) employers need to mindful of an employee’s rights to freedom of religion or belief and expression of those beliefs. Any action or response taken in response to an employee’s social media posts must be ‘objectively justified’ and ‘proportionate’.
FAILURE TO PROVIDE PRIVATE SPACE FOR BREASTFEEDING EMPLOYEE AMOUNTED TO HARASSMENT
The Employment Tribunal (“ET”) in Gibbins v Cardiff and Vale University Local Health Board has held that it amounted to sex-related harassment in circumstances where an employer failed to provide a breastfeeding employee with a lockable room to express milk.
Facts
Prior to the claimant’s return from maternity leave after having her first child, she informed her manager that she would be continuing to breastfeed upon her return to work and requested a lockable room for her to express breast milk in. Upon her return, despite her request she was not provided with a lockable room. On one occasion, a male colleague walked in on the claimant while she was expressing milk. Instead of supplying a lock for the room the claimant used, the employer suggested that the claimant prop a chair against the door and use a “do not disturb” sign instead.
Eventually the employer apologised and provided a lock. However, upon her return from her maternity leave after having her second child, the claimant faced issues again when she was told that the lockable room would only be available at certain times.
The claimant brought claims of harassment on the basis of sex. Harassment occurs when an employee faces unwanted conduct that violate their dignity or create a hostile or offensive environment.
The ET found that the failure to provide a lockable room had the effect of creating a humiliating environment for the claimant. The claimant’s claim of sex-related harassment was successful.
Key takeaways
This case highlights the importance of listening and responding to employee’s requests. While employers are not expected to comply with unreasonable requests, they should listen to requests made by returning mothers and assess whether they can reasonably be complied with. In this case the lock which was eventually fitted cost the employer £5.50. The claimant’s compensatory award for injury to feelings has yet to be determined, but it will most likely be disproportionate compared to the cost of the lock.
OTHER UPDATES- STATUTORY RATE INCREASES
National Minimum Wage Rates 2025
From 1 April 2025, the minimum wage for will increase as follows:
- Workers aged 21 and over: £12.21 per hour (currently £11.44)
- Workers aged 18-20: £10 per hour (currently £8.60)
- Workers aged 16-17 and apprentices: £7.55 per hour (currently £6.40)
Statutory rates 2025
The Department for Work and Pensions (DWP) has announced the planned increase to the following statutory payments to apply from 6 April 2025:
- Statutory Sick Pay (SSP) will increase to £118.75 per week (currently £116.75)
- The statutory rates for maternity pay, maternity allowance, paternity pay, adoption pay, shared parental leave pay, parental bereavement pay, and neonatal leave will increase to £187.18 per week (currently £184.03)
The lower earnings limit (the minimum amount an employee must earn each week to qualify for the statutory payments above, other than maternity allowance) will also increase to £125 (currently £123).
National Insurance contributions
From 6 April 2025, the National Insurance rate paid by employers will rise to 15% from 13.8%. In addition, the threshold at which employers start paying National Insurance on a worker’s earnings will be reduced from £9,100 a year to £5,000.
For further advice on recent Employment Law Changes please contact the employment team at employment@dtmlegal.com
NORTH WEST HR GROUP EVENT – TUESDAY 1ST APRIL 2025
Join us for the next North West HR Group Event, where we will be discussing key developments in employment law and best practices for HR professionals. This session will provide invaluable insights into the latest changes in employment law and an opportunity to connect with fellow HR professionals.
Please note this event will be hosted at our new offices in Chester and has a limited capacity and we recommend signing up in advance to avoid disappointment.
Event Details:
- Date: Tuesday 1st April 2025
- Time: 9:30 AM – 11 AM
- Location: DTM Legal, 2nd floor, Knights Court, 1 Weaver St, Chester, CH1 2BQ
For enquiries, contact us at marketing@dtmlegal.com.
