News 📰
Neonatal Care (Leave and Pay) Act 2023
In an update from last month’s newsletter, the Government has now confirmed that the provisions for neonatal care leave will come into force on 6 April 2025.
With a confirmed date of introduction, here are a few more details about how neonatal care leave will work:
- Eligibility: neonatal care leave is available to employees only, who must:-
- Have a relationship with the child, assessed at the date of birth, as: the child’s parent, intended parent, or partner of the child’s mother, adopter or prospective adopter; and
- Have responsibility (or if the partner of the child’s mother, the main responsibility apart from the mother) for the upbringing of the child.
- Entitlement: eligible employees will be entitled to 1 week of neonatal care leave in respect of each week during which the child receives neonatal care (it must be for the full week, without interruption, and the first week starts the day after care starts), up to a maximum of 12 weeks. If the baby dies, the care requirement is disapplied.
- Neonatal care pay (NCP): will be paid at the same rate as statutory paternity pay (from April 2025 the rate is £187.18 or 90% of earnings if lower) but, to be eligible for NCP, the employee must have completed at least 26 weeks’ continuous service and meet a minimum earnings threshold (currently an average of at least £123 per week).
With the introduction of this new type of leave and pay, employers should consider introducing an applicable policy into their staff handbook. If you need any help implementing these new provisions, please contact our Employment team.
Neurodiversity in recruitment and employment
Currently, only 31% of people with neurodivergent conditions - such as autism or dyslexia - are in employment. There is a particular focus on neurodiversity in the workplace currently – updates have been issued recently by the Government and from ACAS.
The Department for Work and Pensions has launched a panel to explore how employment opportunities can be boosted for neurodiverse people, at both the applications stage, through increasing job prospects, and, once in employment, through creating more inclusive workplaces.
Meanwhile, ACAS have published guidance to help employers create a more neuroinclusive workplace, boost awareness around neurodiversity, and ensure that neurodiversity is normalised.
Key advice includes:
- Using appropriate language around neurodiversity – by approaching the matter sensitively, and listening to neurodivergent employees about their preferred terms.
- Boosting neuroinclusion – this may be achieved by allowing applicants to see interview questions prior to the interview, providing training to managers, and having a neurodiversity policy (or a dedicated section in a diversity and inclusion policy) stating the employer’s commitment to neurodiversity inclusion.
- Providing adjustments to neurodivergent employees – neurodivergent employees may not wish to disclose their condition. If an employer suspects neurodiversity, the focus should not be on whether the employee has a diagnosis, but on what kind of reasonable adjustments can be implemented to support them.
- Adjusting capability or conduct processes for neurodivergent employees – before implementing a formal process, ACAS advise trying to make adjustments to resolve any capability concerns. Where a formal process does need to be conducted, adjustments should be made at all stages.
The full guidance can be found here.
Case Law Update 📢
Higgs v Farmor’s School
The Claimant was employed as a pastoral administrator and work experience manager at the Respondent secondary school. The Claimant was a Christian. She held certain beliefs, including that marriage was a union between man and woman; she also lacked belief in gender fluidity, and held a lack of belief that someone could change their biological gender.
The Claimant reposted a post on Facebook criticising government policy relating to sex education in primary schools, namely that sex education now included teaching about same-sex relationships, same-sex marriage, and gender being a matter of choice. A parent of one of the pupils saw this and complained to the headteacher that the post demonstrated homophobic and prejudiced views.
The Claimant was suspended and subsequently dismissed for gross misconduct. In reaching the dismissal decision, the disciplinary panel held that there had been no concerns raised about her conduct in her role at the school, but that she had breached the school’s code of conduct, which posed a risk to the reputation of the school.
This case made it all the way to the Court of Appeal, where it was held in February 2025 that the Claimant’s dismissal amounted to direct discrimination on the grounds of religion or belief. Dismissal had been a disproportionate response because the posts were not grossly offensive, they were not the Claimant’s own words, and there was no evidence that the Claimant’s work had been affected in any way by her views.
Easton v Secretary of State for the Home Department (Border Force)
The Claimant applied for a job with the Respondent. Within his application, he listed his previous employment by reference to the months and years that he held the roles. This effectively concealed a 3-month gap in employment, which came about following dismissal for gross misconduct from another Home Office role. His application was successful.
After the Claimant commenced employment, the Respondent discovered the fact of his previous dismissal and, as a result, he was dismissed for gross misconduct. The Claimant brought a claim for unfair dismissal. The Employment Appeal Tribunal upheld the Employment Tribunal’s decision that the dismissal was fair: The Respondent had been entitled to conclude that a reasonable applicant faced with a blank box headed ‘employment history’ on an application form would have understood that the information needed to be presented in such a manner as to reveal to the Respondent any gaps in employment, education or training. The Claimant’s decision to present his employment history in a way which obscured the fact and nature of his previous dismissal for gross misconduct and subsequent 3-month period of unemployment had been taken dishonestly.
Brierley and others v Asda Stores Ltd
In another update regarding the high-profile equal pay claims, the Employment Tribunal has held that 11 lead claimants (including checkout operators and shop floor assistants) carried out work for Asda of an equal value to 17 employees who worked in roles in their distribution centre.
However, 2 lead claimants, a personal shopper and a shop floor assistant for edible groceries, did not carry out work of an equal value to any of the roles in the distribution centre. This decision may affect 11,000 of the total 60,000 claimants.
This claim began back in 2014 and could see employees receiving total backpay of approximately £1.2 billion!
Quick Reminders 🧠
- National minimum wage increases
Hourly NMW rates will increase with effect from April 2025 as follows:
- 21 years old and over: £12.21
- 18–20-year-olds: £10.00
- 16–17-year-olds: £7.55
- Apprentices aged 16-18 and those aged 19+ in their first year of apprenticeship: £7.55
2. Sexual harassment
The Equality Act 2010 was amended by the insertion of a new provision at section 40A which took effect on 26 October 2024. It provides that:
An employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment
All employers irrespective of size or number of employees must comply with this new duty. We highly recommend that employers prioritise ensuring that they have taken the steps recommended by the EHRC in their 8-step guide here.
If anyone needs any help with drawing up applicable policy documents and risk assessments, or with training your staff, our Employment team is happy to help.
Thank you to our contributors: Phil Cookson, Desley Sherwin, Laura Hill, George Miller and Natasha Ewins.