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Mandy Li

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Mandy Li is a Knowledge Lawyer in Baker McKenzie London office.

Following the government’s recent announcement, Parliament has approved the removal of the prohibition on businesses using temporary workers to cover staff taking part in industrial action and increased the maximum amount of damages that a court can award against a trade union for unlawful strike action. These changes became effective on 21 July 2022.

An employment tribunal has held that a claimant’s belief in ethical veganism that extended to taking positive action to reduce or prevent the suffering of animals, which included criminal conduct such as trespassing on private property to expose and remove suffering animals, was not a protected philosophical belief under the Equality Act 2010.

The government has announced that it is proposing to make changes to trade union law that will remove the current prohibition on businesses using temporary workers to cover staff taking part in industrial action. It has also announced that it plans to quadruple the maximum amount of damages that a court can award against a trade union for unlawful strike action from GBP 250,000 to GBP 1 million. These changes will need to be approved by Parliament.

The Employment Appeal Tribunal had upheld a decision of the employment tribunal that two companies within the same group had made unlawful inducements relating to collective bargaining under section 145B of the Trade Unions and Labour Relations (“Consolidation”) Act when it made direct offers of pay to its employees after it reached an impasse in negotiations with the recognised trade union. Although the tribunal’s decision pre-dated the Supreme Court’s decision in Kostal v. Dunkley, its findings were “presciently, so close in language to the test enunciated by the Supreme Court” that its conclusion was entirely consistent with the correct legal test as set out in Kostal.

The Minister for Work and Pensions and Minister for Women has confirmed that the government is not currently planning to introduce menopause as a protected characteristic under the Equality Act or to implement dual discrimination. Instead, the government will consult the Equality and Human Rights Commission, and Acas, to assess whether improvements can be made to increase understanding of the law in this area.

The practice of ‘fire and rehire’, where an employer dismisses a worker and then re-engages them on different (sometimes perceived as less favorable) terms, is a current hot topic in UK employment law. The government has, to date, declined to legislate on the issue, although it stressed that the practice should only be used as a last resort. On 29 March 2022, the government announced that it would introduce a new statutory code on the practice, which will also detail how employers should hold fair, transparent and meaningful consultations on proposed changes to terms of employment.

The Court of Appeal has overturned the Employment Appeal Tribunal’s decision which had read down section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) to give workers who participate in industrial action protection from action short of dismissal. The court confirmed that the protections in TULRCA, as drafted, do not extend to preventing employers from taking such action in response to striking employees. This means that a decision to potentially remove discretionary benefits from employees participating in industrial action would no longer give rise to a standalone claim under TULRCA.