Happy new year!

The Employment Rights Bill 2024 (the Bill) received a lot of attention last year….some changes are proposed for this year and some for next. The various changes are detailed below….

NATIONAL MINIMUM WAGE

Since 1st of April 2024 the National Minimum Wage rates were as follows:

• National Living Wage – £11.44
• 18 to 20 years old – £8.60
• Under 18 years old – £6.40
• Apprentice – £6.40

On the 1st of April 2025 there will be an increase in the National Minimum Wage with the new rates of:

• National Living Wage – £12.21
• 18 to 20 years old – £10.00
• Under 18 years old – £7.55
• Apprentice – £7.55

The new rates will see an increase of 6.7% for National Living Wage, whereas 18 to 20 years old rates will increase by 16.3% and under 18 years old alongside apprentice rates will see an increase by 18%.

NATIONAL INSURANCE

Alongside the announcement of increased National Minimum Wage, the Autumn 2024 Budget also announced changes to National Insurance. Subsequently, from April 2025 employer National Insurance contributions will increase from 13.8% to 15%. Additionally, employers should be aware of the secondary threshold being lowered to £5,000 from the current £9,100.

STATUTORY SICK PAY

The Bill proposes to change entitlement to Statutory Sick Pay (SSP) to a ‘day one right’, enabling employees to claim SSP in their first day of illness rather than third as it is now. Additionally, the Bill also proposes to remove the earnings limit enabling those who earn less than £123 per week to also be eligible for SSP.

Although we are not 100% certain when this change will come into force, it is very likely that it will be introduced at some point in 2025.

NEONATAL CARE (LEAVE AND PAY) ACT 2023

The Neonatal Care (Leave and Pay) Act 2023 will introduce statutory paid leave for eligible employed parents whose new-born baby is admitted to neonatal care. Eligible employed parents will be entitled to receive 12 weeks paid leave, in addition to maternity, paternity and shared parental leave. This will be available as a day one right.

Although the legislation received Royal Assent in May 2023, it will come into force in April 2025.

THE EMPLOYMENT RIGHTS BILL 2024 – CONSULTATIONS

Although the Bill reforms will not come into force until 2026, we already know that consultations will take place in 2025. Currently the Bill proposes to change the following:

• TRADE UNION – the Bill proposes to impose on employers a duty to provide employees with a written statement that they have the right to join a trade union. For new employees such notice will have to be provided alongside section 1 statement of conditions of employment. Furthermore, the Bill proposes to repeal the majority of the Trade Union Act 2016 and provide a new right of access for trade unions to workplaces.

• UNFAIR DISMISSAL – the Bill proposes to introduce the right for an employee to bring an unfair dismissal claim from the first day of their employment. This is in sharp contrast to the current position where employees must be employed for at least two years before they can bring an unfair dismissal claim.

• ZERO HOURS – the Bill proposes to amend zero hours contracts, introducing a right to guaranteed hours which would reflect the hours regularly worked by an employee. An employer would be legally required to make an offer of guaranteed hours to their employee; however, an employee may choose to remain on zero-hour contract if they wish.

• FLEXIBLE WORKING – although flexible working is already a day one right as per the Employment Relations (Flexible Working) Act 2023, the Bill proposes greater flexible working arrangements rights by requiring employers to agree to flexible working requests unless they can show that it is ‘unreasonable’. Additionally, an employer must state the ground for refusal and explain why it is reasonable to refuse the request on those grounds.

• ENTITLEMENTS TO LEAVE – the Bill proposes removal of the requirement of the qualifying period of employment for paternity and parental leave giving employees the right to such benefits from day one of employment. Bereavement leave is also proposed as a day one right and the benefit is proposed to be widened beyond loss of dependents under 18 year of age.

• DISMISSAL DURING PREGNANCY AND FOLLOWING STATUTORY FAMILY LEAVE – under the Bill, greater protection will be granted to pregnant employees extending their protection from dismissal. The same protection will apply to those returning from family leave and maternity leave. Currently, that protection only applies to redundancy situations and also has its limitations, as such employees cannot be dismissed but may be moved to an alternative vacancy if one is available. Under the new proposed changes, it will be unlawful to dismiss a pregnant employee or employee within six months of their return following statutory family leave and maternity leave.

• FIRE AND REHIRE – The Bill proposes removal of Fire and Rehire practices. Currently, an employer can dismiss an employee and rehire them essentially for the same role under new terms of employment which could potentially be disadvantaged if an employee does not agree to new terms of employment for instance. Under the new rules if an employer was going to fire an employee on the grounds of refusing to accept new term of employment, that would be automatically unfair dismissal. However, the Bill also foresees an exception to this rule of financial inability of the organisation.

Consultations which will take place in 2025 will verify whether the proposed changes in the Bill, discussed above, will remain intact. In the meantime, we will keep you updated.

For any assistance email nicola.goodridge@goodhr.co.uk or call +44 7917 878384

It’s the season again – many Christmas events are in the planning, and most will involve alcohol…nothing wrong with that but the lines between the professional and the personal are often blurred creating a risk for employers. More of a risk this year with the advent of the new duty on employers to take reasonable steps to prevent sexual harassment – from other employees and from third parties.

Recent legal changes have now increased the risk that employers will end up in a costly employment tribunal if bad behaviour occurs.

New sexual harassment law

The Worker Protection Act 2023 came into place on the 26th of October 2024 and states that employers have a duty to take preventative action against sexual harassment.

What this means in practice is that you need to conduct a proper risk assessment around sexual harassment towards your staff and your broader worker base because:

• employers must now take ‘reasonable steps’ to prevent sexual harassment of employees
• and this should extend to preventing harassment from third parties, including customers, clients and contractors

What this means

The new sexual harassment law does not mean that employers are legally responsible for every instance of sexual harassment in the workplace or at company events. But if the worst happens and you haven’t taken preventative measures, there’s a good chance you will be facing up to a further 25% uplift on any awards made at an employment tribunal.

It is impossible to definitively eliminate the possibility of sexual harassment taking place, and this is not what employers are expected to do. They are, however, required to take steps that are reasonable to prevent sexual harassment. What those steps amount to is objective and must be considered case by case. Factors such as the time, cost and potential disruption caused by taking the steps will be relevant when considering their reasonableness. Other factors such as an employer’s size, resources and the nature of the workplace are also relevant considerations.

Who may be responsible for bad behaviour at company events?

The new law extends a pre-existing legal principle known as ‘vicarious liability’, meaning employers may be liable for acts of discrimination, violence and sexual harassment in the workplace committed by their employees or by third parties – if preventative measures haven’t been taken.

Crucially, this includes events outside of the office, including Christmas parties.

Here are a few examples of tribunal decisions made after sexual or physical misconduct at a festive event that illustrate the reach of vicarious liability:

• an employer was held liable after a manager sexually harassed and assaulted a colleague after the company Christmas party. This was despite the fact that the assault took place after the party, at a different location

• further, an employee successful sued its employer after the Christmas party even though the incident (an assault) occurred after both parties had travelled to a hotel after the party.

• however, an employer was held not liable for an employee being injured at a Christmas party because the employer had carried out risk assessments and taken preventive measures like hiring extra security guards.

These examples show that employers can absolutely be liable when things go wrong and this even extends to events that happen after the party has ended. However, tribunals will clearly take note of measures taken by an employer to keep their teams safe.

The importance of the risk assessment in complying with the new law

Vicarious liability is nothing new: The examples in the last section all occurred before the new sexual harassment legislation came into effect. However, now employers have an even higher legal hurdle to clear.

The duty on businesses is to anticipate scenarios when workers might be subjected to sexual harassment and take reasonable action to prevent it from taking place. At the heart of this duty is a requirement for employers to effectively assess risk.

Risk assessments help identify potential harassment issues and areas of risk within the work environment. Methods include anonymous staff surveys, organisational reviews and examining historical issues. Preventing harassment is a shared responsibility across the workforce, and educating workers about acceptable behaviour is crucial in effective risk management. The main ways that employers can educate their workforce is through their policies, training and culture:

• policies: employers must have clear, comprehensive policies outlining their stance on sexual harassment. These policies should provide guidance on identifying harassment, reporting mechanisms, consequences for perpetrators and protections for those who report in good faith.
• training: tailored training is essential for compliance. Generic ‘box ticking’ harassment training is unlikely to be sufficient. Organisations should seek to provide bespoke training that is tailored and addresses industry-specific scenarios and challenges that their workers may encounter during the course of their employment. Managers and senior staff, who have greater responsibilities, may require additional training focused on risk identification.
• culture: a culture that actively combats harassment is vital. Employers should encourage reporting and demonstrate a commitment to ongoing risk assessment and review of practices, policies and training. Regular assessments indicate a proactive approach to preventing harassment.

With respect to the forthcoming Christmas party here are some important steps to help protect your employees and demonstrate compliance:

1. Risk assessment: as said, it is important to proactively identify the risk of sexual harassment at such events and take steps to mitigate it. This can include limiting the amount of alcohol on offer, not paying for after-parties, providing guidance beforehand – or any of the other policies on this list.

2. Employee and manager training: all employees need to be aware of the new sexual harassment law and be clear that their behaviour will reflect on the company. Managers should know how they should respond when issues are reported.

3. Educate clients, contractors and customers: ensure all pre-party comms are extended to clients, contractors and customers wherever possible. You could also consider putting up signs around the party venue.

4. Pre-party comms: it is also helpful to remind participants that sexual harassment is not acceptable and encourage anybody who experiences it to report it to managers. If possible, this should include clients and contractors.

Handling complaints of harassment

When harassment reports are made, they must be investigated and addressed robustly according to company policies. Failure to do so can create an environment where harassment is not taken seriously, empowering perpetrators.

The future

The new duty has raised the bar for employers, and future legal requirements may be even stricter. The Employment Rights Bill introduced by the government on 10 October 2024 has indicated that businesses will likely need to take all reasonable steps to prevent harassment in the future to prevent harassment. The bill also confirms that employers may face liability for standalone third-party sexual harassment claims from their workers. With the bar of expectation on employers growing ever higher it will be interesting to see whether festive parties or any form of out of work engagement will be encouraged in the future.

Any questions nicola.goodridge@goodhr.co.uk or call +44 7917 878384

Firstly, it is important to be clear that the intended employment reforms are not set to come into force until 2026. Many of my clients are contacting me saying they have been approached by organisations offering to update their documentation in light of the new reforms. However, it is important to note the following:

1. they are not yet in force.
2. they will not be in force until, probably, 2026.
3. we don’t yet know the exact detail of the reforms.

Now that the Bill has been published, it will be subject to the usual Parliamentary process with debates and amendments put forward in both the Lords and the Commons before the Bill is granted Royal Assent and becomes law.

In addition, it will require a substantial amount of consultation over the details of the secondary legislation required to implement the Bill’s provisions. This will all take time, hence the government’s confirmation that the majority of the changes will not take place before 2026.

However, it is sensible for employers to be aware of the broad remit of the changes that are due to become law. Therefore, below are the key headline changes introduced under the Bill:

1. Day-one rights

The Bill introduces ‘day one’ rights for employees to claim unfair dismissal rather than the current two- year period. This will subject to a statutory probationary period (an ‘initial period of employment’) for new hires during which time employers will be able to terminate employment without following a full process. Details of how this will work will be set out in separate Regulations and the length of the probationary period will be consulted over, but the Government is currently proposing a period of nine months.

The Bill also introduces day one rights to paternity leave, unpaid parental leave and a new statutory (paid) bereavement leave, based on the existing statutory right to two weeks’ parental bereavement leave.

2. Statutory Sick Pay (SSP)

Rights to receive SSP are amended under the Bill, removing the current three-day waiting period and meaning that SSP will be payable from the first day of absence. The existing Lower Earnings Limit (LEL) for qualifying for SSP, currently £123 per week, will also be removed. The Government will consult on the appropriate rate of SSP for those earning below the current weekly rate.

3. Flexible working

Employees will have a strengthened right to work on a flexible basis but it remains a right to request flexible working. Employers will still have the ability to refuse a flexible working pattern on the specified statutory grounds, provided it notifies the employee of the grounds for refusal and that it is reasonable to refuse on that basis.

4. Right to a stable contract

Following the government’s manifesto commitment to end “exploitative” zero-hours contracts, the Bill introduces a new right to a guaranteed-hours contract for those who work regular hours over a 12-week reference period, with provision for subsequent reference review periods if hours become regular over a longer period of time. Importantly, workers who want to remain on zero-hours contracts will be able to do so.

The Bill also provides for workers on zero and low hours contracts to be given ‘reasonable notice’ of changes in shifts or working time, with compensation for shifts cancelled or curtailed at short notice.

5. Fire and rehire

The Bill provides for ‘fire and rehire’ (dismissal and re-engagement) to be added to the list of reasons constituting an ‘automatic’ unfair dismissal other than in very limited circumstances when a business has no alternative due to financial circumstances affecting the employer’s ability to carry on the business as a going concern.

In addition, the Bill amends the existing provisions under the Trade Union and Labour Relations (Consolidation) Act 1992 relating to collective redundancy (affecting 20 or more employees) and the obligation to collectively consult with employees. These provisions will no longer apply to proposed redundancies at ‘one establishment’, meaning that the obligations will potentially be much more onerous for employers seeking to make redundancies over multiple workplaces.

6. Protection during pregnancy and after family leave

Pregnant women and new parents will have strengthened protections against dismissal for six months after returning to work from a period of family leave. This will be subject to separate regulations that will prevent dismissals of these employees other than in specific circumstances.

7. Increased harassment protection

Amendments to the Equality Act 2010 under the Bill will introduce express protection from third party harassment and strengthen the recently introduced employer duty to prevent sexual harassment (in force from 26 October 2024). Employers will be required to take ‘all reasonable steps’ to prevent sexual harassment, rather than ‘reasonable steps’ as currently provided. Sexual harassment will also be added to the list of protected disclosures, under existing whistleblowing provisions.

8. Action on gender pay and menopause

Under the Bill, large employers (likely 250+ employees) are required to produce action plans to address their gender pay gaps and to support employees through the menopause. Currently, these are recommended but not mandated for employers.

9. Pay

The Bill also includes powers to create a Fair Pay Agreement in the adult social care sector and reinstate the School Support Staff Negotiating Body.

The government has separately committed to remove the existing “discriminatory” NMW age bands, and the Low Pay Commission is now required to take into account the cost of living when setting the annual NMW rates.

10. Public sector contracts

The Bill reinstates the two-tier code for public sector contracts, with the aim of ensuring that employees working on outsourced contracts are offered terms and conditions no less favourable to those transferred from the public sector.

11. Trade unions

As anticipated, the Bill provides for the repeal of the Strikes (Minimum Service Levels) Act 2023. It will also bring in additional protections for trade union members and extensive measures to simplify the statutory recognition process as well as a new right of access for union officials to meet, represent, recruit and organise members in the workplace.

Employers must provide workers with a written statement of their trade union rights along with their statement of employment particulars.

12. Fair Work Agency

A new Fair Work Agency will bring together existing enforcement functions to enforce employment rights and to support employers in compliance.

Additional proposals for reform, not included in the Bill, include the following:

• employment status – the Government plans to consult on moving towards a single status of ‘worker’ and transitioning towards a two-part framework for employment status, differentiating between workers and the genuinely self-employed

• a right to switch off, under a statutory Code of Practice, to prevent employees being contacted out of hours other than in exceptional circumstances

• a review of the existing parental leave and carers’ leave systems

• a separate Bill (the Equality (Race and Disability) Bill) to introduce new mandatory ethnicity and disability pay gap reporting for large employers and extending equal pay rights to include race and disability.

I hope this allays fears that the new year is bringing in a whole raft of new employment laws! However, 2026 will be soon upon us and so careful scrutiny as the Bill goes through Parliament is essential to ensure employers are prepared for the changes. I will ensure that I pass on updates as they emerge.

Wishing you a happy end to 2024!

nicola.goodridge@goodhr.co.uk or +44 7917 878384

In today’s fast-paced workplace, ensuring the health and well-being of employees is essential—not just for the individual, but also for the overall productivity of your business. One important tool that helps assess an individual’s fitness for a role is the pre-employment health questionnaire.

Crucially, these can only be introduced after a job has been offered. An employer cannot make a job offer subject to a satisfactory health questionnaire – retracting a job offer on the basis of knowledge of a health condition or disability would amount to discrimination.

What is a Pre-Employment Health Questionnaire?

A Pre-Employment Health Questionnaire is a simple, confidential form filled out by employees before they start a new job. Its primary purpose is to gather information about any medical conditions or disabilities that could affect their ability to perform job tasks safely and effectively and then enable the employer to make reasonable adjustments to accommodate the employee’s needs.

Why Are These Questionnaires Important?

1. Ensuring Workplace Safety
Some roles require specific physical or mental capacities. By assessing an individual’s health, post job offer, employers can ensure that employees are safe to do the job, reducing the risk of workplace accidents or illness. For example, roles that involve heavy lifting, hazardous materials, or high-stress environments may have specific requirements to ensure safety.

2. Making Reasonable Adjustments
Pre-employment health questionnaires help employers identify any reasonable accommodations an employee may need to perform their role effectively. This ensures that businesses comply with Equality Act regulations and promote an inclusive work environment. For instance, ergonomic changes or flexible working hours may be arranged for employees with back issues or chronic conditions.

3. Preventing Discrimination
It’s important to note that these questionnaires are not used to discriminate against candidates with health conditions. Instead, they help employers support prospective employees, ensuring they have the right resources to succeed in their roles from the start.

4. Promoting Long-Term Employee Wellbeing
By identifying potential health issues early, both employers and employees can take proactive steps to manage any conditions, leading to improved job satisfaction and long-term health outcomes.

What Does a Health Questionnaire Cover?

A pre-employment health questionnaire typically covers:
• general health history (e.g., pre-existing medical conditions)
• physical or mental health issues that may impact job performance
• history of workplace injuries or illnesses
• details of any medications or ongoing treatments
• any disabilities that require workplace adjustments

Confidentiality and Compliance

It’s crucial to ensure that health information collected from employees is treated with the highest confidentiality. The data must be stored securely and used solely for the purpose of assessing workplace needs in line with GDPR and data protection laws.

How Does This Benefit Employers and Employees?

For Employers, these questionnaires minimize the risk of workplace injuries and legal liabilities, while helping to create a safe and inclusive working environment. It can also lead to reduced absenteeism and improved employee retention.

For Employees, pre-employment health questionnaires provide an opportunity to have their needs addressed right from the start. It ensures they enter the workplace with the appropriate support, enhancing their job satisfaction and long-term health.

Conclusion

Pre-employment health questionnaires are a win-win for businesses and employees. They ensure that workers are fit for their roles while helping employers create safe, inclusive, and legally compliant workplaces.

If you are an employer considering integrating pre-employment health questionnaires, or an employee wondering what to expect, do email nicola.goodridge@goodhr.co.uk or call +44 7917 878384

It is important for employers to be clear on how they deal with circumstances where workers have not used all of their annual leave. One possible approach is to adopt a ‘use it or lose it’ holiday policy, but this brings wider considerations, both to avoid damaging employee relations and to ensure workers receive their full entitlement to time off work.

How many paid holidays should UK workers get?

Most workers in the UK are legally entitled to 5.6 weeks paid holiday a year. This means that those who work a 5-day week must receive at least 28 days paid annual leave. This comprises 4 weeks (20 days) derived from EU law and 1.6 weeks (8 days) from UK law, although an employer is allowed to include bank holidays and other public holidays in this.

Employers must provide workers with the statutory minimum although they can agree to give more by way of contract. In many cases, a worker’s contract of employment will provide enhanced contractual rights when it comes to paid holiday.

How does paid holiday work in the UK?

Statutory paid holidays start to accrue from day one, where employers can adopt a leave year or accrual system to work out how much leave staff should get and how this builds up.

When using a ‘leave year’, the employer should tell their staff the dates as soon as they start working, for example, a statutory leave year might run from 1 January to 31 December. This then represents the timeframe during which workers must take their paid holidays.

Where a worker starts their job part-way through a leave year, they will only be entitled to part of their total annual leave entitlement for the current year. The amount of paid holiday they will be entitled to for that year will therefore depend on how much of the year is left. Alternatively, an employer can calculate a worker’s leave based on them receiving one-twelfth of their leave each month.

Importantly, regardless of how accrued holiday is calculated, this should not be affected by a worker being on sick leave or any other form of statutory leave, such as maternity or paternity leave, shared parental leave and adoption leave.

What is a ‘use it or lose it’ holiday policy?

The basic principle of statutory annual leave entitlement is that this will be lost if it has not been used. There are some exceptions to this rule, but usually the annual leave accrued in any leave year must be used in that same year. This is important because taking time off work helps staff to get sufficient rest breaks and to keep physically and mentally healthy.

Where an employer chooses to adopt such a policy, unless they refuse to allow or make it impossible for leave to be taken, any unused accrued holiday will normally be lost at the start of a new leave year. The only other exception to the ‘use it or lose it’ rule is where the worker has been prevented from taking their full annual leave entitlement because they have been on some other form of statutory leave: sickness or family leave.

If a worker has been on long-term sick leave, they can carry over the first 20 days of their 28 day entitlement on their return to work (for up to 18 months), whilst a worker who has been prevented from taking some or all of their paid holiday due to maternity or family leave, can carry over up to one years’ statutory entitlement (5.6 weeks or 28 days) into the following year.

Importantly, however, in the recent decision of Smith v Pimlico Plumbers Ltd [2022] the Court of Appeal made it clear that in order for a worker to lose their right to paid leave in any given leave year, the following three conditions must be met:

• the worker must have been given the opportunity to take paid annual leave
• the worker must have been encouraged to take paid annual leave, and
• the worker must have been informed that the right to paid leave would be lost at the end of the leave year, if not taken during the leave year in which it was accrued.

This effectively means that, regardless of what any holiday policy states, any accrued leave will not automatically be lost – unless the employer has pro-actively brought it to the worker’s attention that this would be the case and the worker is not only given the opportunity to take paid leave but is positively encouraged to do so. In other words, the employer must have exercised all due diligence in ensuring that leave is taken in time.

Pros and cons of a ‘use it or lose it’ policy

From an employer’s perspective, and provided they follow the guidance from the Court of Appeal in Smith v Pimlico Plumbers, there are various benefits in adopting a ‘use it or lose it’ holiday policy:

• significant savings for the business.
• ability to maintain consistent staffing levels, where workers will not be permitted to accrue large chunks of carried-over leave.

However, there are also various drawbacks to not allowing staff to carry over unused leave:

• low morale and employee burnout.
• increased absenteeism.
• cost to the business.
• multiple surges in requests to take holiday at the end of the leave year.

Carrying over unused holiday into the following year – a specified amount or on discretion.

If a worker is entitled to the statutory minimum of 28 days leave, they can carry over a maximum of 8 days with the employer’s agreement. If a worker gets more than 28 days leave, the employer may also allow them to carry over any of this additional contractual entitlement. The employer should therefore decide the number of days that can be carried over into the following leave year and make provision for this in the employment contract.

Alternatively, the employer can leave the decision to carry over any unused days at its discretion, for example, on individual request and on a case-by-case basis.

Best practice for employers

When deciding what holiday policy to adopt in the workplace, economic factors are important but maintaining a happy and healthy workforce is equally as important. People are often the best assets of a business, where ensuring the physical and mental wellbeing of staff is not only a basic statutory duty imposed on employers, but will also help to increase employee engagement and to reduce absenteeism and staff turnover rates.

If a ‘use it or lose it’ policy is adopted by a business, the following best practice tips can help to ensure that this policy is fair, lawful and effective:

• set out the policy clearly within any contract of employment.
• periodically remind staff that they should be submitting requests to use any remaining annual leave entitlement before it is lost.
• ensure staff have easy access to a cloud-based or computerised system that allows them to check their leave entitlement and how much they have remaining.
• try to agree to annual leave requests where at all possible.

Importantly, if the three conditions as set out by the Court of Appeal in the case of Smith v Pimlico Plumbers are not met then the net effect is that the right to paid annual leave does not lapse and regardless of the workplace policy, that employee will be able to carry over their holiday into the next holiday year.

Holiday calculations are often challenging! For any assistance please email nicola.goodridge@goodhr.co.uk or call +44 7917 878384

New laws, which come into force on 26 October 2024, create a legal duty for employers to ensure that they protect workers from sexual harassment in the workplace – this extends to third party sexual harassment at a work event which is an extension of the workplace.

Employers will have a “duty to take reasonable steps” to prevent sexual harassment in the workplace. Employment tribunals will be able to increase compensation by up to 25% if they find an employer has breached their duty.

The new law will likely be strengthened by an Employment Rights Bill that is set to create a duty for employers to take “all reasonable steps” to stop sexual harassment “before it starts”.

Worker Protection Act

Under the new Act organisations will be required to take all reasonable measures to prevent sexual harassment in the workplace and should therefore prepare for an overhaul of their existing anti-harassment policies.

Work-related social events obviously will not be explicitly prohibited under the Act, but employers would need to make changes to mitigate risks and ensure compliance with the new provisions.

Employers should be aware that their duty of care to their employees does not absolve once they finish work or leave the office. It is therefore imperative to ensure that professional boundaries are maintained at any work-related event, to avoid the risk of unacceptable conduct.

A strategy designed to mitigate risks could include:

• a pre-event briefing to emphasise the importance of behaving appropriately and outlining the consequences that will arise from incidents of misconduct.
• the reduction of external risk factors, such as alcohol, to prevent any impairment to professional judgement.

The effect on companies that regularly plan social events is likely to be significant. Ultimately, following the introduction of the Act, we can expect to see a redefinition of professional boundaries and alterations to existing social norms, such as office parties or post-work drinks.

What is sexual harassment?

Sexual harassment is defined by the Equality and Human Rights Commission (EHRC) as:

• “unwanted conduct of a sexual nature”
• that has the purpose or effect of “violating a worker’s dignity” or
• “creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker”.

What should employers so to prepare?

1. In order to be able to demonstrate that reasonable steps have been taken, the employer should keep records of those steps which are likely to include:

• a statement about not tolerating harassment of workers.
• a statement that makes it clear that the employer will refuse in future to deal with customers or suppliers that act in breach of their rules.

2. Conduct a risk assessment to identify and address potential risk areas within the business including:

• reviewing past incidents.
• assessing cultural problem areas.
• evaluating the impact of third-party interactions.

3. Ensure existing policies on sexual harassment are:

• comprehensive and up to date.
• establish clear and confidential reporting mechanisms for employees to report incidents of harassment.

4. Implement training on sexual harassment.

5. Provide clarity on to whom any complaints should be brought.

6. Give guidance to managers to look out for changes in behaviour and encourage one to one discussion.

7. Be alert to the fact that workers have been known to be untruthful if they think they can escape punishment highlighting that it is important, where there is no corroborating evidence (such as messages or CCTV footage) that the victim is believed, and the perpetrator is automatically suspended whilst an investigation takes place.

Summary

This marks a crucial step forward in the UK’s commitment to creating workplaces free from sexual harassment. Employers play a pivotal role in ensuring compliance and fostering a culture that promotes respect, dignity and equality for all employees. By understanding the new requirements, defining reasonable steps, facilitating straightforward claim procedures and implementing proactive measures, employers can contribute to a safer and more inclusive working environment.

For any assistance please email nicola.goodridge@goodhr.co.uk or call +44 7917 878384

Employers are increasingly attuned to the impact of disability in the workplace and the measures that can be taken to create an inclusive and supportive environment for all employees. However, while visible disabilities are often supported, there are many “hidden disabilities” that go unnoticed and the link between these challenges and performance and conduct issues is easily missed.

Employees may be reluctant to divulge hidden disabilities or be unaware that they have a disability for the purposes of the Equality Act 2010. Whatever the reason for their challenges remaining unrecognised, the impact can be significant. It can create legal risks and damage both to the employment relationship and to the employee’s own wellbeing.

What are hidden disabilities?

The term hidden disabilities covers a broad range of conditions that are not readily apparent to employers. Examples include:

• mental health disorders, such as anxiety and depression.
• neurodivergence, for example ASD (autism spectrum disorder), ADHD (attention deficit hyperactivity disorder), dyslexia, dyspraxia or dyscalculia.
• chronic illnesses and pain conditions, such as fibromyalgia, arthritis or endometriosis.
• chronic digestive conditions, such as Crohn’s, ulcerative colitis or celiac disease.
• sensory processing disorders.
• eating disorders.
• autoimmune disorders.

It is also important to remember that your staff may be supporting a dependant with a disability and, in this way, be suffering an unseen disability-related challenge impacting on their own physical and mental wellbeing. Discrimination on the grounds of association with a disabled person is also unlawful under the Equality Act.

The impact of hidden disabilities

Hidden disabilities can manifest in ways that can be mistakenly dealt with as a performance or conduct issues by an employer, particularly where the employer, manager or the employee themselves are not aware of how an underlying condition is affecting the employee’s ability to carry out their duties and work with their colleagues effectively.

This lack of understanding often leads to the employee being treated unfairly and missing out on the support and adjustments that would enable them to work to their full potential.

Examples of how a hidden disability can have an impact on performance or behaviour in a way that is not obviously connected include:

• a neurodivergent employee with ADHD might display poor timekeeping and a lack of attention to detail, while excelling at other aspects of their role – this might be construed as lack of organisation and carelessness in their work.

• an employee with a condition causing chronic pain may behave aggressively, or lose their temper with a colleague – this might be viewed as misconduct, but result from the stress of managing their pain effectively.

• sensory difficulties, for example being overstimulated by lighting, noise, smells or crowds might lead an employee to be irritable or withdrawn – this might be perceived as poor behaviour or lack of effort.

Risk of discrimination

Where performance or misconduct proceedings are commenced with an employee, but the issues to be addressed have arisen because of something which arises in consequence of the employee’s disability (whether hidden or not), this can be discriminatory – there is a connection between the “something” that results in performance/conduct measures and the disability.

Example: an employee was dismissed for gross misconduct following an aggressive outburst towards another employee. His behaviour was significantly influenced by his insulin-dependent diabetes and his blood sugar readings were outside the normal range in the period leading to the outburst, which would have an impact on his emotional regulation. The employee was therefore dismissed because of something arising from his disability: there was a link between the outburst and his condition and his dismissal was ruled as unfair.

Given the complex and unexpected ways hidden disabilities can affect performance and conduct, it is important for employers and managers to think carefully about:

• whether an underlying disability might be playing a part in the matter at hand.
• Whether the behaviour and lapse in judgement is uncharacteristic and therefore should provoke further consideration.

Example: a refusal to participate in particular activities at work may look like defiance or an unreasonable request to drop a particular duty; but where that refusal arises from a disability, an employer should consider whether removing a particular aspect of an employee’s duties would be a reasonable adjustment under the Equality Act.

In this case, the employee’s sickness absence for anxiety had been triggered by the employer requiring her, as part of her duties, to do something that, when previously done, had caused trauma because of specific circumstances at that time. Being told of the requirement caused a severe anxiety reaction. The employer did not remove the requirement and maintained that this was an essential element of the employee’s duties and she was ultimately dismissed for her refusal.

In practice, employers need to carefully consider any circumstances where an employee has developed a particular anxiety related to part of their role. This could be dealing with difficult clients, customers or members of the public, giving presentations, or working with a particular manager.

Neurodivergent employees may have specific anxieties related to a particular aspect of a role which should be accommodated in reasonable adjustments being made.

Where an employer is able to reasonably make a change for any employee experiencing a specific anxiety relating to part of their role, but gives no consideration to this, or dismisses an employee’s concerns, this could give rise to a successful discrimination claim or constructive dismissal.

What can employers do to address hidden disabilities?

There are some practical steps employers can take to create an environment where employees feel more confident to share challenges and bring hidden disabilities into the open.

• providing training and raising awareness is a key step for equipping managers and colleagues to recognise any warning signs and respond appropriately and supportively.
• inclusive policies with clear commitments to diversity and reasonable adjustments will also encourage good communication: sickness absence, flexible working and wellbeing policies should all be reviewed.
• leadership support is important and participation in events by leadership sends a positive message that diversity is celebrated and supported in the organisation.
• employee support groups can also give employees the confidence to share their challenges and are a valuable source of support and can role model good communication and practical solutions.

For advice please contact nicola.goodridge@goodhr.co.uk or call +44 7917 878384

On and off social media platforms, the debate on sex and gender has become polarised. According to the government’s tribunal decisions portal, there have been 14 decisions in the space of less than two years, and several of them have made national news headlines.

The most prominent of these cases was an award of more than £100,000 against an organisation which was found to have unlawfully discriminated against an individual after it did not offer her an employment contract or renew her visiting fellowship because she had expressed gender-critical views on her Twitter account. Later prominent cases include that of a barrister who won a case against her employer, after losing work due to her involvement with the LGB Alliance Group.

Tribunal’s advice

But it was an instruction by the judge in the recent case of a social worker who was suspended and subjected to a long disciplinary process by both her employer and her professional regulator for sharing a link to a petition to the International Olympic Committee that male athletes should not compete in female sports, as well as another petition on women’s rights to sex-based protections, such as female-only hospital wards, that should prompt employers to consider how they deal with contentious beliefs at work.

The tribunal found that the nature of the disciplinary process constituted harassment, ruling that her social media posts “fell within her protected rights for freedom of thought and freedom to manifest her beliefs as protected under Articles 9 and 10 of the Human Rights Act”. Compensation was awarded and the judge ordered all managers and HR staff in both organisations to receive training on the freedom of expression and protected belief.

Contentious issue

One of the reasons that compensation was so high in this case was the fact that the employer “should have known better” in the light of these recent decisions. The rise in claims like these shows that more and more beliefs are being deemed as worthy of protection under the Equality Act – and inevitably, if more beliefs and rights are protected, that raises the potential for those thought systems to come into conflict.

The way the Equality Act is drafted leaves it open that many types of belief are worthy of protection, as long as they meet the five-step test that shows they meet the requirement as follows:

• the belief must be genuinely held.
• it must be a belief and not simply an opinion or viewpoint based on the present state of information available.
• it must be a belief as to a weighty and substantial aspect of human life and behaviour.
• it must attain a certain level of cogency, seriousness, cohesion and importance.
• it must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

Difficult balance

The biggest lesson that should be taken from the most recent cases is that when it comes to the contentious debate over gender identity, employers need to think in terms of balancing conflicting rights, rather than viewing their role as protecting one group (those with the protected characteristic of gender reassignment) from discrimination by another (those with gender critical views).

Stay neutral

So for an employer celebrating LGBTQ staff or hosting a Pride march, could it be argued that supporting staff with gender-critical beliefs goes against those efforts? Can an employer celebrate different identities without aggrieving others? It’s more of a tightrope than before – as an employer you must try to avoid being seen to be in one camp or another, to be taking sides.

The recent decisions make it clear that someone can hold a gender-critical belief but this does not mean people could be transphobic or misgender people. The key is to have a framework where people know they will be treated with dignity and respect even if their belief comes into conflict with those of someone else. A balanced approach is essential.

Expressing a view is lawful provided that the manner in which it is expressed does not cross the line into harassment or discrimination. It does not matter if that view is unfashionable, unpopular or considered by some to be objectionable, as long as no harassment or discrimination arises.

Training and culture

Training can be a good opportunity to engage with employees in how to foster a non-discriminatory work culture – for example, training on unconscious bias is underutilised but can provide individuals with personal insight about how we make judgments about others and how to prevent discrimination. Organisations play a critical role in creating a culture where it’s okay to discuss beliefs in an open and sensitive manner but understand that all opinions are valid.

Employers should advise employees as to their internal processes for raising any concerns and the support that will be given to them, with a view to resolving issues in a collaborative way. Employers should also make employees aware of their expectations with regard to discussion of sensitive topics and the potential consequence for engaging in such debate.

Looking forward

A further consideration is that, from October this year, employers will come under an obligation to prevent workers from harassment under the Worker Protection Act, so it is important to remind staff of what is acceptable. This new law carries with it a potential 25% uplift in compensation at tribunal, so these policies should not just be in a handbook on a shelf, but managers should be reminding staff about their obligations to be respectful.

However, the recent decisions in gender-critical cases could result in a decline in their frequency because it is increasingly clear to employers that such beliefs are protected. The law is clear that so-called ‘gender-critical’ beliefs are protected provided they are contained within a reasonable expression. Harassment continues to be outlawed but as with nearly all cases about belief, the outcome will very much depend on the particular facts.

Please email nicola.goodridge@goodhr.co.uk or call +44 7917878384 for any advice or assistance.

The Labour Party has ambitious plans for reforming employment law. It has promised to introduce legislation on its New Deal for Working People within the first 100 days of a new Labour government. This means by 12 October 2024, assuming Labour wins the general election on 4 July 2024.

This doesn’t mean that new laws will be in place by 12 October 2024. It just means that Labour is committing to start the process as quickly as it can.

So how quickly might the New Deal be implemented?

Unless and until Labour publishes more details, nobody can say with any certainty what’s going to be implemented when but here are some thoughts on possible timelines.

Possible quick wins for Labour – from 5 July 2024 to April 2025

National Living Wage.

Labour has pledged that:

1. the NLW will take account of the cost of living; and
2. that the 18-20 age band will be removed.

Labour could set the new remit immediately on coming into government and ensure that a new cost-of-living-sensitive minimum wage takes effect from April 2025. Labour could abolish the 18-20 age band at the same time although it might choose to delay that additional change, which could have a significant effect on businesses employing younger workers, pending further consultation.

Tips Act.

The new Tips Act – requiring employers to pass 100% of tips to workers – has already received Royal Assent and was expected to come into force on 1 October 2024. Labour has pledged to strengthen the law to ensure workers receive their tips in full. This is an easy win for Labour, since it involves simply enacting legislation that is already in place.

Statutory sick pay reforms.

Labour has promised to remove the need to wait until day four to receive SSP and the requirement to earn above the lower earnings limit to qualify.
Both changes require primary legislation and are expected to be made via the Employment Rights Bill. It is just about possible that these changes could be made in April 2025, as they won’t require any substantial follow-up regulations to bring them in.

Trade Union law repeals.

Labour has pledged to change the law around trade unions in several ways. This includes:

• repealing certain anti-strike laws including, for example, the laws around minimum service levels during public sector strikes.

These repeals seem likely to take effect instantly when the Employment Rights Bill receives Royal Assent.

Day 1 parental/paternity leave

• Labour has promised “day 1 parental leave”. It’s unclear if this means parental leave within the strict (limited) legal meaning of that term, or any kind of right for parents to take family leave.
• Parental leave (the right to take up to 18 weeks’ unpaid leave until a child is 18) currently has a one-year qualifying period, which could be scrapped relatively easily using powers in existing legislation (but this type of leave is hardly ever used).
• Paternity leave (the right to take paid time off around the birth or within the first year) currently requires six months’ employment and Labour could also scrap this under existing powers.

It’s therefore conceivable that these reforms could happen very quickly, although much depends on how much consultation Labour plans to do first.

Predictable Terms Act

The Predictable Terms Act gives workers the right to request (but not to have) a more predictable contract. It has already received Royal Assent but needs accompanying regulations to bring it into force. It was expected to come into force in September.

The Act falls a long way short of delivering what Labour wants to achieve for zero-hours workers, but it’s conceivable that Labour could choose to bring it into force as a stepping stone on the way to further reform.

Key priorities – within two years

1. Right not to be unfairly dismissed from day 1.

This is one of Labour’s headline proposals and we can reasonably expect it to be a priority. In theory, Labour could achieve this almost immediately. In practice, however, this proposal is likely to be subject to extensive consultation particularly as to the new rules that are likely to be needed for dismissals during probationary periods, and an implementation period.

It will also require an updated (or new) Acas Code of Practice, which will need to be consulted on. It seems most likely that this will take effect in October 2025 or April 2026 at the earliest.

2. Bereavement leave.

We would expect the Employment Rights Bill to make provision for bereavement leave, but secondary legislation might be needed to bring the right into effect so this could take up to two years.

3. Zero-hours contracts, right to contract based on average hours.

Labour has made banning “exploitative” zero-hours contracts and creating a right to a contract based on average working hours one of its flagship proposals.

We would expect the Employment Rights Bill to include provision for this. It’s very unclear, however, how these new rights will operate in practice. Substantial consultation and secondary legislation will almost certainly be needed. It’s possible that new rights could take effect within the first two years but in practice this may be ambitious.

Longer term – not until towards the end of a first term of government

1. Single worker status.

Labour has said that it will carry out a full and detailed consultation on its plans to move towards a single worker status. This is an extremely complex and difficult subject to legislate on, so it may be that any changes will only take effect towards the end of a Labour government’s first term in office.

2. Single enforcement body.

The Employment Rights Bill is likely to create this body, but as it seems inevitable that there will need to be extensive consultation about its remit, powers, staffing and funding, it may be years before it is fully up and running.

3. Expansion of pay gap reporting.

Labour’s plans to introduce ethnicity pay gap and disability pay gap reporting are also likely to take some time to implement in practice.

4. Reform of family leave framework.

Labour has suggested that it will review the family leave framework within the first year of coming into government. In the absence of any specific proposals at this stage substantial reforms are likely to be a long way off – not until the end of a first term in government at the earliest.

Conclusion

Employers should not worry too much about significant changes being rushed in by the end of this calendar year, despite all the talk of the first 100 days. Employment law reform takes time. The direction of travel is clear, though, so if Labour does win the election, we are going to see very significant reforms sooner or later.

For any advice do email nicola.goodridge@goodhr.co.uk or call +44 7917 878384

Copyright © 2024 GoodHR Ltd All rights reserved.
Registered in England no. 8408047

www.goodhr.co.uk
nicola.goodridge@goodhr.co.uk
Tel. 44(0)7917 878384

unsubscribe from this list update subscription preferences

Sir Jim Ratcliffe, the co-owner of Manchester United football club, has stated that employees who are not willing to come to the club’s premises to work should seek ¬‘alternative employment.’

Ratcliffe, who also owns the chemicals giant Ineos, said that productivity falls when people work from home. He cited a 20% drop in email traffic at one of his companies when it trialled work-from-home Fridays.

Since the Covid pandemic, Manchester United has had a flexible work-from-home policy but at a staff meeting held in person and online video last week he announced a reversal of this and told employees: “If you don’t like it, please seek ¬alternative employment.” He said working together in person would strengthen unity and collaboration.

With 4 in 10 companies returning to a full-time office week in 2023, the Great Office Return appears to be continuing in 2024 as the Tuesday, Wednesday, and Thursday Era slowly dwindles.

Trying to get employees to step back into an office sparks mixed emotions. These differing attitudes on remote working can cause employees to quickly divide into camps of pro-home and pro-office.

The balance between the normalisation of working from home during COVID and the increase in loneliness amongst remote workers can be a tricky balancing act for recruiters and HR teams.

Whilst it is very unlikely all staff will be going back to the office full-time, businesses making plans to increase office time are best to develop clear and fair policies to avoid employee friction.

Can an employer ask an employee to return to the office?

Employers are entitled to ask employees to return to work to their normal place of work as a “reasonable management request” if the original employment contract specified that the employee would be office-based and no longer-term change was agreed.

Unfortunately, if clear parameters about expectations and contractual obligations were not set out at the outset, it may be difficult to force an employee to return to the office by relying on a contractual term.

Potential legal issues of making staff return to office working

There may be legal issues if working from home or hybrid working was contractually agreed with employees. It may also have become an implied term of their employment. Employers will then need to consider whether contracts and/or policies need changing under a formal process.

Can an employee request hybrid working?

A request for employees to return to their place of work may lead to an increase in flexible working requests under the Employment Relations (Flexible Working) Act, new regulations in force from 6 April 2024.

The new regulations include provisions for hybrid working as a definition of flexible working and allow employees to make a request from day one and up to two requests per year. Employers are required to consider all requests in an open-minded conversation with the employee about what flexible working arrangements might be possible.

Can an employer refuse a request for hybrid working?

An employer does not have to necessarily agree to the request (the business reasons for refusal remain the same under the new regulations).

However, refusing flexible working requests for hybrid or home working has risks for the employer and may give rise to grievances, claims for constructive unfair dismissal or a breach of flexible working legislation. It is important that employers treat similar requests in the same way to avoid complaints of unfairness and discrimination claims where an employee has a protected characteristic. Employers should therefore keep a record of all flexible working requests, responses and reasons given to assist in decision making.

Carrots (within reason) may be more effective than sticks!

Mandating employees to return to the office can result in unhappiness, resignations and overall reduced employee loyalty and so employers may be wise to consider a carrot approach – within reason.

Employers are noticing that with mixed emotions and outside pressures, some employees are reluctant to return to the office, whilst others are eagerly embracing returning to their office.

Here are a few examples of encouraging staff to come back into the office:

• offer in-person professional development
• set up in-person social and learning opportunities
• create meaningful team building activities
• offer transport subsidies
• encourage use of EAP programmes

Further, when considering a strategy to get employees back to office, employers need to consider the following:

1. increases in commuting costs
2. travel disruptions and strikes
3. increase in childcare costs
4. flexibility for personal schedules in family time, exercise classes or simple errands.

A balance should be made between employers’ and employees’ needs as ignoring either is likely to result in an unwelcomed response, and possible claims of discrimination arising.

For assistance with a hybrid working policy or any questions on this topic do email nicola.goodridge@goodhr.co.uk or call +44 7917 878384