In March 2023, the Pensions Regulator published guidance for trustees and employers on equality, diversity and inclusion (EDI). The guidance explains what EDI is, why it is important for occupational pension schemes to improve EDI in their trustee boards, and how trustees and employers can do so. For more information on the Regulator’s guidance, please see our legal update.

We have produced a guide for trustees and employers that sets out:

  • A series of trustee steps for the implementation of EDI in their scheme.
  • A number of employer-specific considerations.
  • How we can support trustees and employers in improving EDI in their scheme.

If you have any questions, or would like to discuss any aspect of the Regulator’s guidance or our guide further, please contact Jay Doraisamy.

We recently published the latest episode of OPEN Talks, where Miriam Bruce, partner in the London Employment Group, discusses artificial intelligence (AI), its regulatory landscape and the potential risks for employers using such technology. In rather timely fashion, that week also saw a number of conflicting developments in the AI space that reflect the risks and global legal positions discussed in our podcast (listen here).

Goldman Sachs released a report estimating that 300 million jobs could be exposed to automation at the hands of generative AI. While the labour market might face significant disruption, the report states that AI developments could lead to the creation of new jobs and higher productivity, eventually increasing annual global GDP by 7%.

These widely-reported predictions were closely followed by the UK government’s AI-focused white paper, “A pro-innovation approach to AI regulation“. Similar to Goldman Sachs’ report, the paper highlights AI as “critical” technology that can create new jobs and improve the workplace. The government is proposing to implement a new, initially non-statutory and principles-based, framework to bring “clarity and coherence” to the regulatory landscape for AI.

While the white paper is broad and wide-ranging, a key aim of the proposed framework is to build public trust in AI and it acknowledges the need to address wider concerns about bias and discrimination. The government’s initial proposal is for existing regulators to implement the framework and principles. For example, it provides a recruitment-based case study, where it foresees that the Equality and Human Rights Commission, the Information Commissioner’s Office and others will be encouraged to issue joint guidance and help businesses apply transparency measures and bias mitigation standards when navigating the regulatory landscape. (Look out for a wider discussion on the content and impact of this white paper on businesses by our IP team – this will follow shortly.)

Aside from the government’s white paper, and despite steps being taken in the UK, EU and the US to regulate AI, Italy recently became the first Western country to ban ChatGPT, pending an investigation into the software’s compliance with GDPR laws. A number of other countries, including China, Russia, North Korea and Iran, have reportedly already blocked ChatGPT. It remains to be seen whether other Western countries will follow Italy’s lead.   

Given the number of developments in recent weeks (with no sign of a pause…), employers should continue to watch this space, particularly if using AI platforms during recruitment or other stages of the employment relationship. While the race for regulation continues, until there is an established framework governing its development, implementation and use, AI will not be far from the headlines…

In the latest episode of OPEN Talks (our series of short podcasts focused on diversity, equity and inclusion (DEI)), Global PSL, Louise Fernandes-Owen, interviews Christopher Fisher and Miriam Bruce, partners in the London Employment Group.

They delve into four key areas of DEI that were prominent in 2022 and are expected to remain so in 2023: pay gap reporting, positive action, workplace investigations and artificial intelligence (AI). Chris and Miriam share their legal perspectives on the challenges surrounding ethnicity data collection, the increase in positive action measures, the role of regulators in workplace investigations and the growth of AI solutions in the workplace, to name a few. Listen to this episode here. If you would like to be notified of future OPEN Talks episodes, alongside the existing UK employment law podcast series, please contact us here.

In April 2023, the latest round of annual increases relating to the maximum awards available at Employment Tribunals and other statutory rate increases, such as statutory sick pay and the national minimum wage, take effect. Perhaps not unsurprisingly given the current inflationary environment, the increases are significantly higher than in previous years, most notably in respect to the compensatory award for unfair dismissal which benefits from an inflation-based increase of over 12% taking its limit to £105,707 (up from £93,878 in 2022).  

We set out below the key rates and limits that employers should be aware of.  

1.    Increase of limits on tribunal awards

Under the Employment Rights (Increase of Limits) Order 2023, the following new figures will apply from 6 April 2023:

  • the statutory limit on a week’s pay, which is used to calculate statutory redundancy and the basic award for unfair dismissal, will increase from £571 to £643; and
  • the maximum compensatory award for unfair dismissal will increase from £93,878 to £105,707. Note that unfair dismissal compensation remains capped at the lesser of the compensatory award or a year’s pay.

Employers facing potential Employment Tribunal claims with an effective date of termination of 6 April 2023 onwards should therefore be mindful of the significant increase to the compensatory award, in particular, when considering any potential exposure to unfair dismissal claims and during the course of any settlement discussions regarding such claims.

2.     Increases to other statutory rates

Employers should also be aware of the following statutory employment rate increases.

  • from 10 April 2023, statutory maternity, paternity and adoption pay will increase to £172.48 per week (or 90% of the employee’s weekly earnings, if lower) (up from £156.66);
  • from 10 April 2023, statutory sick pay will increase to £109.40 per week (up from £99.35); and
  • from 1 April 2023, the national living wage will increase to £10.42 per hour (up from £9.50).

Employers should ensure that they are ready to implement the changes above from the relevant dates.

See the Social Security Benefits Up-rating Order 2023 and the National Minimum Wage (Amendment) Regulations 2023 for further information.

3.    Increased Vento bands apply from 6 April 2023

On 24 March 2023, the Presidents of the Employment Tribunals published updated guidance on Employment Tribunal awards for injury to feelings and psychiatric injury, which sets out the revised Vento bands of compensation for the 2023/24 tax year, as updated for inflation.

For claims presented on or from 6 April 2023, the new Vento bands will be as follows:

  1. a lower band of £1,100 to £11,200 for less serious cases in which the discriminatory act is an isolated or one-off incident (up from £990 to £9,900 in 2022);
  2. a middle band of £11,200 to £33,700 for cases that do not merit an award in the upper band (up from £9,900 to £29,600 in 2022);
  3. an upper band of £33,700 to £56,200 for the most serious cases, for example, where there has been a lengthy campaign of discriminatory harassment (up from £29,600 to £49,300 in 2022);
  4. with the most exceptional cases capable of exceeding £56,200 (up from £49,400 in 2022).

Given current inflationary pressures, the increase to the upper band is particularly notable, and any employer facing claims where the Vento bands are in play post-6 April 2023 should therefore be mindful of these increases.

Many of our clients (in the US and outside) are tracking the progress of the Federal Trade Commission’s proposal to ban non-compete agreements.  It remains to be seen whether that rule will be introduced, and if it is, there will undoubtedly be litigation challenging it.  In the meantime, however, it is worth noting that the FTC has enforcement powers to require employers, on a case-by-case basis, to modify or eliminate non-compete agreements – a power it has now exercised four times in 2023.  Please see our report here for a summary of the latest case.

As part of Mayer Brown’s Global Diversity Month, we will shortly be hosting an evening Q&A with Anita Asante on 29 March 2023.

Anita Asante made 75 appearances for the England & GB football teams. She has played for the likes of Arsenal and Chelsea and won nearly all the UK’s major football competitions. Anita took part in the first-ever women’s team at the London 2012 games and, since retiring from international football, has used her voice to open doors for minority groups as an Ambassador for Show Racism the Red Card and Amnesty International UK. At this event, Anita will share stories from her career and discuss the need for gender, racial and LGBT+ equality in sport and the barriers faced.

This in-person event will be held at our London office on Wednesday 29 March 2022: registration from 5.45pm, with event to start at 6pm. If you would like to attend, please register here to confirm your place.

The case of Meaker v Cyxtera Technology UK Limited serves as an important reminder to employers of the importance of ensuring that letters of dismissal are appropriately clear and unambiguous. The employer in this case wanted to rely on a letter it had sent to an employee referring to a termination date but which was marked “without prejudice” and enclosed a settlement agreement. The employee argued it could not be effective as a termination notice since he rejected the settlement offer.

The employee in the case was employed in a manual labour role. He suffered back injuries in 2018, resulting in an extended absence. In 2019, it was agreed that his injuries would likely permanently limit his ability to carry out his role and an application was made for income protection payments, but this was unsuccessful. On 7 January 2020, the employer first raised the possibility of dismissing the employee and asked him to sign a settlement agreement. Then, on 5 February 2020, the employer sent the employee a letter:

  • headed “without prejudice”, but did not include the words “subject to contract”;
  • stating that the employee’s employment would terminate by “mutual agreement” by reason of capability, and that his last day would be 7 February 2020.  It said he would receive payment in lieu of ten weeks’ notice (“PILON“) and payment for untaken holiday.  Despite the reference to mutual agreement, no agreement had been reached; and
  • enclosing a settlement agreement offering a severance payment in addition to the PILON, if the employee entered into the agreement.

The employee rejected the settlement offer in writing on 7 February 2020. On 14 February 2020, the employer paid the PILON and untaken holiday pay into the employee’s bank account.

The employer maintained that the letter terminated the employee’s employment with effect from 7 February 2020 – which was important because, if that was right, then the unfair dismissal claim which the employee subsequently submitted would be out of time.  The employee argued that the letter was merely a without prejudice offer of settlement, which he rejected, and so it could not have terminated his employment.

The court agreed that an employer would normally convey open and without prejudice communications in separate documents, but here they said that the dismissal wording and settlement agreement offer could be read as separate parts of the same document. Moreover, and although this point was more finely balanced, the reference to termination by “mutual agreement” did not invalidate the effect of the letter.  The court said that the letter itself was clear on the intended termination date and, if there had been any doubt, the subsequent actions of the employer (paying the PILON and accrued holiday pay) should have removed it. Some may find this a surprising conclusion, and it was clearly a finely balanced one.  The message for employers remains that it is far better to separate without prejudice offers of settlement from any intended open termination notice.  It will also be  helpful to include “subject to contract” wording, in addition to “‘without prejudice”, when issuing a draft settlement agreement, to avoid the risk of an employee thinking they have been terminated sooner than is intended.

There has been some debate in recent years as to whether or not the written terms between an alleged independent contractor and the recipient of their services hold any weight at all when determining the employment status of an individual.

In the past, it was always thought to be one factor to be weighed up when there was a degree of uncertainty over status, albeit that the reality of the situation behind the contractual terms has always been considered the most important element. More recently, the Uber BV v Aslam case led to speculation as to whether written terms would be relevant at all in such cases or whether they could be completely disregarded.

However, in the recent case of Ter-Berg v Simply Smile Manor House Ltd, the EAT has clarified that the terms of the contract do in fact matter, and can be the starting point for an assessment of employment status.

In this case, Dr Ter-Berg was a dentist who ostensibly worked as a self-employed contractor, but who claimed that he was unfairly dismissed when the engagement ended. It was his assertion that, over time, the relationship between the parties had evolved into one of employment due to integration, control and the requirement to provide services personally.

The Tribunal, as a starting point, looked at the terms of the contract between the parties to help ascertain the true nature of the relationship. The contract in question was a standard form provided by the British Dental Association, which stated that the dentist was not an employee and there was no employment relationship. It also included a ‘substitution’ clause requiring Dr Ter-Berg to find a locum where he was unable to provide his services for 20 days or more “through ill health or other cause”. The Tribunal concluded that the dentist was not an employee and placed particular weight on the existence of the substitution clause, which meant he did not have to provide his services personally.

On appeal to the EAT, Dr Ter-Berg argued that the Tribunal should not have used the contract as a starting point for its analysis of employment status because the Uber case had established that the test for status was a statutory one. The EAT, however,  agreed with the Tribunal’s approach and that it was acceptable to look at the broader picture, and that could include the terms of the contract as long as those terms were not included simply to defeat the statutory protections granted to workers and employees.

On the facts of the Ter-Berg case, the EAT said the Tribunal had interpreted the substitution clause incorrectly because they had found it was an unfettered clause, and it clearly was not.  It only allowed Dr Ter-Berg to provide a substitute if he was ill or due to some other (similar) cause, so there had to be some fault on his part.  He could not simply choose to provide a locum.

This is an interesting decision which perhaps reinstates the importance of the written contract after the Uber decision, i.e. it is permissible to consider the terms of the contract between the parties, and even to do that as a starting point.  But the fact remains that all the other factors must be considered, including the statutory test for employment status, and contract terms that do not reflect the reality of the position on the ground may still be disregarded.  

The Government is consulting on a draft Code of Practice that will regulate the practice of dismissal and re-engagement, or “fire and re-hire”, as it has become known more recently.  This is the practice that became particularly controversial following the dismissal by P&O of 800 staff in 2022, in order to replace them with lower-cost workers.  It is sometimes used by employers looking to make changes to terms and conditions across the workforce, where employee agreement cannot be obtained.  Instead of imposing the changes unilaterally, which is often not possible, the employees’ existing contracts are terminated and they are offered new ones containing the new terms.  

At the time of the P&O dismissals, there was a call from certain sectors for fire and re-hire to be made illegal, but the Government has not done that.  Instead, the new Code sets out various steps the employer must go through, in terms of informing and consulting with staff and re-assessing its plans, before it reaches the stage of dismissal, with that very much being a last resort.  It is true that much of what is in the Code is what is essentially already required in any large re-contracting exercise where the collective consultation law applies (20 or more employees at the same establishment).  But in times of crisis, e.g. the recent Covid-19 pandemic, employers may need to implement changes as quickly as possible and look for the shortest form of consultation it can achieve.  Under the new Code, that will be more difficult.  So in cases where the employer does have more time, it should be ready to begin its consultation process as soon as possible in order to allow time to meet the Code requirements.  If there is an unreasonable failure to comply with the Code, any employment tribunal award can be increased by 25%.

The consultation process closes on 18 April 2023, with the new Code coming into force some time after that, once the Government has considered the responses it receives.  See the full text of the draft Code and consultation paper here:  Draft Code of Practice on dismissal and re-engagement – GOV.UK (

In the case of Rodgers v Leeds Laser Cutting Ltd, the Court of Appeal has decided that an employee had not been automatically unfairly dismissed for refusing to come to work during the COVID-19 pandemic.  This is a notable decision as it is the first post-pandemic Court of Appeal claim considering s100(1)(d) of the Employment Rights Act (1996) (the “ERA”).  It is also a helpful decision for employers; finding that employees must reasonably believe that their actual workplace poses a serious or imminent danger for the special protections against dismissal in s100 to apply. Travel to and from work, and the risk of infection during a commute, will not be enough for an employee to show such danger.  

The facts of this claim are likely to be similar to those faced by many employers during lockdown and the pandemic.  The employer in the case was able to remain open during lockdown and had hired a third party to ensure that sufficient procedures were put in place to maintain safe working practices.  The Claimant was unable to work from home due to the nature of his role.  Despite the measures put in place at his workplace, the Claimant stated that he would not be attending work as he was concerned for the health of his vulnerable children.  Following a period of leave in accordance with NHS 111 guidance, the Respondent heard nothing further from the Claimant for a number of weeks and therefore dismissed him.

The Claimant, sought to argue that his dismissal was unfair under s100(1)(d) ERA, which states:

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—

(a)–(c) …

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

By way of reminder, an employee does not need to have two years of service to bring this claim.

The claim was rejected by both the Employment Tribunal and the Employment Appeal Tribunal. Both courts found that while the pandemic could give rise to instances of serious and imminent danger, it did not in this case. Instead, the Claimant’s decision to stay away from his workplace related to his general fears regarding the pandemic and not to his concerns about the workplace itself.  The Claimant appealed to the Court of Appeal, which dismissed the claim.

The Court set out a five-stage test which Tribunals should adopt in cases where it is claimed that s100(1) ERA applies:

  • Did the employee believe that there were circumstances of serious and imminent danger at the workplace?
  • Was that belief reasonable?
  • Could they have reasonably averted that danger?
  • Did they leave, or propose to leave or refuse to return to the workplace because of the (perceived) serious and imminent danger?
  • Was that the reason (or the principal reason) for the dismissal?

The Court’s finding that the legislation is designed to cover dangers relating to use of equipment, the actual premises itself or systems in place at work rather than a more general risk of infection will be helpful to employers.  The findings in this case show a narrow application of s100(1) ERA, however, as ever, each application will depend on the facts of the case.  Here, the measures which the Respondent had put in place to allow safe working was looked on favourably by the Court and the Claimant’s own actions during the pandemic (refusing to wear a mask and working part time in a pub) did little to assist his argument.