Equality law at work – what to expect in 2025

By Fudia Smartt on 14 January 2025

2024 saw a host of legal changes and this year shows no signs of abating, particularly following the change in UK Government and their wide-ranging proposals.

Proposed legislative changes:

Employment Rights Bill

Following on from the introduction of the preventative duty on employers with regard to sexual harassment claims which took legal effect in October 2024, a host of other legal changes proposed in the Employment Rights Bill 2024 will reach consultation stage this year.

Such changes include:

1. The proposal to make unfair dismissal a day one right (while allowing statutory probationary periods). The removal of the two-year qualifying period would amount to a legal change of seismic proportions. This is particularly so, given that – currently – employees without this length of service can only seek significant compensation relating to their dismissal if they can be linked to discrimination, whistleblowing or asserting certain statutory rights. However, unlike ordinary unfair dismissal claims, the burden of proof in discrimination and whistleblowing claims initially rests with the employee, which typically makes them harder to prove.
2. The boosting flexible working rights. As of 6 April 2024, the right to request flexible working became a day 1 right. However, the proposal under the Employment Rights Bill intends to go a step further by requiring employers to agree to flexible working request unless they can show that the request is unreasonable. While employers will still be able to refuse a request (relying on one of the prescribed reasons under the legislation), this proposal aims to make flexible working the default position. Under the proposals, employers will only be able to refuse a request if reasonable to do so which places the onus on the employer to justify refusal.
3. Removing the requirement of a qualifying period of employment for paternity and parental leave. Therefore, paternity leave shall become another day 1 right and employees can use their unpaid parental leave entitlement as soon as they start employment and will not have to wait until they have worked with their employer for a year.
4. Creating a general right for employees to have bereavement leave beyond the existing right of two weeks’ parental bereavement leave following the death of a child under 18 or a still birth. In keeping with the theme of these proposals, bereavement leave would be a day 1 right.
5. Strengthening rules pertaining to protection against dismissal for pregnant employees and those taking or returning from a period of statutory family-friendly leave. Building on the recent changes to give pregnant employees/those returning from family leave priority for redeployment opportunities in redundancy situations, the Government is currently proposing to introduce regulations to cover other dismissals. Under the current proposals, it would become unlawful to dismiss employees who have been pregnant within six months of their return to work save for specific reasons.

Draft Race and Disability Bill

In the briefing notes to the draft Equality (Race and Disability) Bill from the King’s speech last year, it was stated that most ethnic minorities earn less than the White British group and disabled people on average have lower incomes than non-disabled people. As such, the proposed Race and Disability Bill endeavours to address this by:

• Making it easier for ethnic monitories and disabled people to bring equal pay claims.
• Mandating ethnicity and disability pay gap reporting for employers with 250 or more employees. The intention behind this is to enable employers to consider ethnicity and disability pay gaps and how to proactively close them. It is likely that the proposed measures will mirror those relating to equal pay and gender pay reporting.

On 7 January 2025, the Ministers for Equalities (Seema Malhotra, MP) stated that the consultations on pay gap reporting will be undertaken this year and brought forward shortly. Further, she confirmed that draft legislation would be introduced during this current parliamentary session. The Race and Disability Bill seems to have replaced Labour’s proposals of introducing a Race Equality Act (as mentioned in their manifesto) which was to address equal pay and strengthen protections against dual discrimination.

Right to “Switch Off”

While there is no timetable yet on this yet, the Government announced last year that a new “right to switch off” would be introduced, providing workers with the right to disconnect from work outside of working hours and not be contacted by their employer (as has already been introduced in France). Government sources have been reported as stating that the new “policy” will be specific to individual workplaces and the suggestion, for now, is that the right will be enacted through a code of practice rather than legislation.

Neonatal Care

The Neonatal Care (Leave and Pay) Act 2023 makes provision for a right to statutory neonatal care leave (expected to be capped at 12 weeks) and pay (expected to be at the statutory prescribed rate or, if lower, 90% of the employee’s average weekly earnings) for employees with a parental or other personal relationship with children receiving neonatal care. It received Royal Assent on 24 May 2023 and the new pay and leave entitlements are due to come into force in April 2025.

Court Judgments

The Court of Appeal judgment in Higgs v the Farmor’s School is due to be published. This case centres on a Christian employee of a secondary school who claimed that she was discriminated against when she was dismissed for gross misconduct due to posting Facebook messages which were perceived as being anti-LGBT+. As the ECHR has commented, this case engages both the Equality Act and the Human Rights Act, as well as the relationship between the two. As such, commentators are awaiting the judgment with interest, as it could set a precedent on how future cases will grapple with the issue of freedom of expression in respect of protected views and the fundamental rights of protected groups.

Another case that is being eagerly awaited is that of Thandi and others, Next Retail Limited and (2) Next Distribution Limited which is an equal pay claim that is being brought by a group of Next employees who are claiming that store-based workers who are predominantly female should be paid the same as warehouse operatives who are predominantly male. The group of employees have succeeded at Tribunal in showing that the two jobs were of equal value and that a number of the differences in pay could not be justified. Thousands of current and former workers at Next are involved in this litigation and it could result in compensation of up to £30 million being awarded.

Summary

While not all of the promises made in the Labour manifesto have made it into Bills yet, the above shows that they have a strong intent on addressing workplace inequalities and providing greater support and flexibility for workers and particularly those with childcare commitments. Indeed, there will be much for those in the D&I, HR and employment law space to grapple with!

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