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A ‘new deal’ for working people

 

Earlier this year, Labour published its New Deal for Working People, setting out a number of specific changes to employment laws in the UK that it would implement within 100 days of entering government. This commitment was reflected in Labour’s pre-election manifesto, meaning imminent changes are on the horizon.

The reforms touch on broad areas of working life, from flexible working and zero-hours contracts, to trade unions and artificial intelligence. For businesses and HR teams, some of the reforms appear radical, for example the introduction of a day one right not to be unfairly dismissed and the creation of a new government agency to enforce employment law compliance. However, Labour acknowledges that while it can implement some of the changes quickly through legislation, other changes will require consultation and may take longer.

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Employers are therefore encouraged to prepare for imminent changes, although many of the proposals we discuss in this article may take effect later down the line. Below, we cover the main proposals for reform together with our view on what they might mean for your business.

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Dismissals

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Unfair dismissal: day one protection

One of the most significant changes for businesses is the plan to make unfair dismissal protection a day one right for all employees. Many businesses will be aware of the requirement for employees to have, in most cases, at least two years’ continuous service in order to qualify for unfair dismissal protection and to bring unfair dismissal claims. This requirement has typically provided employers with flexibility to assess an employee’s compatibility during the first two years of employment and dismiss such short-serving employees on notice without needing a fair reason or fair process to do so.

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We await the specific details of Labour’s proposals, but a genuine day one right not to be unfairly dismissed would effectively require employers to approach the dismissal of all employees from day one of their employment in the same way they currently approach dismissals of employees with over two years’ service (ie by having one of the potentially fair reasons for dismissal and adopting a fair process). This would be a significant departure from long-standing employment laws - for over fifty years, there has always been some form of minimum service requirement for employees to qualify for unfair dismissal protection.

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It’s clear that these changes are significant and will likely add additional time, risk and cost for businesses when it comes to implementing dismissals. This might mean employers need to think more carefully about their initial hiring decisions. It’s also likely to increase the overall number of employment tribunal claims given all employees will qualify for unfair dismissal protection from day one of employment.

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However, Labour has made it clear that employers will still be able to operate probationary periods and dismiss employees during a probationary period, as long as there are ‘fair and transparent’ rules and processes that apply to probationary periods. It’s not yet clear what this means, including whether there will be limits on the length of probationary periods or whether employers will need to discuss concerns with employees first before dismissing during a probationary period.  It does appear, however, that probationary periods will become an important tool in being able to dismiss short serving employees and so we advise reviewing your current contracts of employment and ensuring that any new starters have a probationary period within their contract.

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It’s also worth noting that Labour’s plans involve creating a single employment status of employee and worker (see Employment Status below). Given this, it’s possible that the day one right to unfair dismissal protection could eventually cover both employees and workers, meaning a broader category of workers could benefit from unfair dismissal protection which has previously not been the case. We will be following this proposal closely in the coming months.

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Restricting ‘fire-and-rehire’ practices

Another significant development is Labour’s proposal to restrict so-called ‘fire-and-rehire’ practices, which is more formally known as dismissal and re-engagement. Dismissal and re-engagement involves terminating existing contracts of employment and immediately offering a new employment contract, usually with less favourable terms and conditions around pay and benefits.

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The purpose behind dismissal and re-engagement is usually to make forced changes  to terms and conditions where employees are refusing to accept changes to their existing contracts. For example, legacy contractual benefits such as pensions and severance terms may have become too expensive for an employer to administer, or an employer may be in financial distress and need to take measures to reduce its staff costs by cutting pay. Removing these terms is likely to be very unpopular with the employees entitled to them and they would be unlikely to accept the change. Terminating the existing contracts with these terms and offering re-engagement on a new contract is a potential solution in these circumstances to transition staff onto new terms, although often at the expense of good employee relations.

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Dismissal and re-engagement practices became particularly controversial during the Covid-19 pandemic, with many high profile cases making the news. Steps had already been taken to limit the use of dismissal and re-engagement, with a new statutory code of practice coming into force on 18 July 2024, limiting its use only as a last resort.

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Although it has stopped short of calling for a total ban on dismissal and re-engagement, Labour plans to provide ‘effective remedies’ against abuse of fire-and-rehire practices and provide a strengthened code of practice to replace the code coming into force this month. At the same time, Labour acknowledges that businesses may still be able to use these practices as part of a genuine business restructure where there is no alternative. However, Labour’s plans will clearly require a more robust process and consultation with affected staff.

Overall, dismissal and re-engagement is a delicate balance for Labour. On the one hand, these practices are controversial with the trade unions, many of whom are affiliated with Labour. On the other hand, dismissal and re-engagement can be a lifeline for businesses that are experiencing shock economic conditions and need to take urgent cost-saving action. It seems Labour is trying to pull off this balance delicately, but with a strong message that it will scrutinise dismissal and re-engagement measures robustly.

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Enforcement of employment rights

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New enforcement body for employment rights

Labour plans to set up a new Fair Work Agency (FWA) responsible for enforcing workers’ rights against non-compliant employers. The FWA will have powers to inspect workplaces and take legal action against employers who fail to uphold employment rights, which includes imposing fines and the use of civil proceedings. The FWA will include representation from trade unions and it’s expected its remit will include health and safety matters, breach of national minimum wage laws, worker exploitation and discrimination.

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Although the creation of a new government body to oversee employment law compliance might sound alarming to some employers, it’s really an amalgamation of existing state enforcement bodies into one (eg the Gangmasters and Labour Abuse Authority, HMRC’s national minimum wage unit, and the Employment Agency Standards Inspectorate). This is something previous governments had considered following the Taylor Review in 2017, which recommended better enforcement of employment rights by state bodies.

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However, the remit and powers of the FWA do sound broad, meaning employers will need to make sure they take more proactive steps to comply with statutory employment rights and keep adequate records to demonstrate their compliance.

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Increase in employment tribunal time limits from three to six months

In most cases, workers have three months (normally from the date of dismissal) to bring a claim against their employer in an employment tribunal (eg for unfair dismissal). This time limit can be extended in very limited circumstances, but this is at the discretion of the employment tribunal. Labour is proposing to increase the time limit for bringing employment claims from three to six months.

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Labour’s rationale for the increase in the time limit is somewhat confusing. On one hand, it says this will help pregnant employees with pregnancy or maternity related discrimination claims based on evidence that shows they struggle to raise funds to bring claims within the current time limits. We believe such funds must relate to legal advice and support given it’s been free of charge for anyone to lodge employment tribunal claims since July 2017.  On the other hand, Labour also states the increase in time limits will encourage employees to exhaust internal processes first (eg through a grievance process), leading to a decrease in claims. This is certainly possible, but internal resolution of complaints is never guaranteed.

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On balance, the increase in time limits is a significant proposal that is expected to have direct consequences for many employers. It’s likely that the number of employment tribunal cases will increase, not decrease. And that’s within an employment tribunal system which is already at capacity and where employees can currently expect to wait on average one year for an employment tribunal to hear their claim. For employers, the increase in the time limit means they will need to wait out any claims for a much longer period than before. Under Labour proposals, employees will have much longer to think about bringing a claim, which might happen if they are struggling to find new employment after being dismissed from a job.

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Fair pay

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National Living Wage

The National Living Wage is the higher rate of the National Minimum Wage that’s payable to workers aged 21 or over. The exact rate is set each year based on recommendations from the Low Pay Commission (the independent body that advises the government on the National Living Wage and National Minimum Wage). The Low Pay Commission typically looks at factors such as median pay and economic conditions when recommending rates to the government.

Labour is proposing to remove the age threshold for receipt of the National Living Wage, meaning every adult worker would be entitled to the National Living Wage, and not just the National Minimum Wage. Labour also plans to give the Low Pay Commission a wider remit to take into account the cost of living when making its recommendations. These proposals would result in added costs for employers, which will be felt mostly by businesses operating in sectors that engage younger staff, for example the hospitality and leisure sectors.

 

 

Statutory sick pay

Statutory Sick Pay (SSP) is a statutory entitlement available to employees who have been off work sick for more than three days in a row. It’s payable for up to 28 weeks of sickness absence, with the exception of the first three days. To be eligible, employees must have average weekly earnings of at least the lower earnings limit.

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Labour’s proposals involve removing both the three-day waiting period and the lower earnings limit for eligibility. This would mean all employees will be entitled to SSP from their first day of sickness absence and there will be no earnings requirement to be eligible. There had been indications that Labour would also increase the rate of statutory sick pay (currently £116.75 per week), although it’s not currently clear whether that will happen.

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For employers, these changes will increase direct costs and administration around sick pay. It may potentially encourage higher levels of short-term sickness absence if workers know they no longer need to wait for sick pay to kick in. Changes to sick pay are just one example of where employers will need to update their HR policies.

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Ban on unpaid internships

Internships can be a great way for employers to attract talent and offer meaningful work experience to those looking to access a particular industry. However, research suggests that up to 31% of graduates in the UK are engaged in unpaid internships. Unpaid internships have been controversial in recent years because of the concerns over how they may limit social mobility.

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Labour plans to bring an end to unpaid internships, except where they are part of an education or training course. This is clearly a positive development from a social mobility perspective, although it’s not clear why a ban is more effective than, for example, mandating a statutory rate of pay for all internships. A total ban on the use of unpaid internships could have unintended consequences, such as a reduction in the overall number of internships posted by businesses due to confusion about the rules.

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When this change takes effect, businesses that wish to continue to offer internships will need to update their internship agreements.

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Job security and stability

Labour’s general philosophy under the New Deal is that workers should be entitled to a ‘baseline level of security and predictability’. It intends to achieve this through changes to how employers use zero-hours contracts. Zero-hours contracts are employment contracts that do not set a minimum number of working hours and do not oblige the employer to provide any work. These types of contracts have come under scrutiny in recent years as trapping workers in low paid and unstable employment.

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Labour plans to ban ‘exploitative’ zero-hours contracts and give everyone the right to an employment contract that reflects the number of hours regularly worked, based on a 12-week reference period. So, an employee engaged under a zero-hours contract who has been working an average of ten hours a week over the 12-week reference period would, under Labour’s proposals, be entitled to an employment contract that provides for that number of hours a week.

It’s not clear whether Labour will mandate a minimum number of guaranteed hours to zero-hours employees, or what defines an ‘exploitative’ zero-hours contract. Employers may be concerned about added costs and a lack of flexibility in staff resourcing. It may not be practically possible for employers in some sectors to guarantee an average number of hours. Employers may need to consider alternative staffing models, for example the use of fixed-term employment contracts, something Labour acknowledges will be permitted.

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Other measures that Labour propose to promote job security, include requiring employers to give reasonable notice to workers of changes in shift patterns or working time, with compensation proportionate to the notice given if cancelling or cutting short a shift. Again, this would add costs for employers who rely on shift-based staff and will increase the amount of administration required on HR and payroll when processing payslips.

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Employment status

In the UK, staff are generally categorised as employees, workers or self-employed for employment law purposes. This is known as an individual’s employment status. An individual’s employment status has important implications for the types of rights and entitlements they have. For example, only employees can bring claims for unfair dismissal, whereas both employees and workers are entitled to holiday pay. Genuinely self-employed contractors have very few employment rights.

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There are different legal tests to determine whether an individual is an employee, worker or genuinely self-employed. Over the last decade, there have been many cases in the courts looking at these tests. The rise of the gig economy meant that many individuals were wrongly categorised by businesses as self-employed and were in fact workers, meaning they had basic statutory rights such as holiday pay. Although the case law has clarified the circumstances in which an individual is an employee, worker or self-employed, it’s still a complex issue for businesses to manage in practice.

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Labour plans to move towards a single status of ‘worker’, ending the distinction between ‘employee’ and ‘worker’. This would then leave a simpler distinction between those categorised as a ‘worker’ and those categorised as ‘self-employed’ from an employment law perspective. Labour also intends to improve protections for the self-employed, including a right to a written contract, measures designed to help the self-employed recover late payments and extending health and safety and blacklisting protections to self-employed workers.

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Although simplification is the aim, a single status of employee and worker would be a radical overhaul of employment status and is unlikely to happen imminently. Labour plans to consult in more detail on these proposals and thought will need to go into the tax implications of such a change.

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Equality and inclusion

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Discrimination and harassment

Labour plans to strengthen protections against harassment, including by third parties. The New Deal also suggests a tougher stance on dealing with sexual harassment. It’s not clear whether this will create additional obligations on employers beyond those already due to take effect in October 2024 under the new duty to take reasonable steps to prevent sexual harassment. Again, we await the specific detail, but given the increased focus on discrimination and harassment, now would be a good time for employers to audit their business for discrimination and harassment risks (including sexual harassment) and develop policies, practices and procedures to minimise these risks.

Equal pay 

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Under the Equality Act 2010, men and women must receive equal pay for equal work. This is known as the principle of equal pay. Workers can bring equal pay claims where they believe they are being paid less than a comparator of the opposite sex for the same work.

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Labour intends to reform equal pay laws by prohibiting the outsourcing of services as a means of avoiding equal pay laws. It will also strengthen Equality Impact Assessments for public sector bodies that have public sector equality duties. Additionally, it intends to set up a regulatory and enforcement unit to oversee equal pay, with a view to making it easier to enforce equal pay rights.

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It’s been suggested that Labour intends to extend the equal pay framework to include equal pay claims based on race, which would widen the types of claims employees can bring based on race.

Gender pay gaps

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Businesses in the UK that employ at least 250 employees have to report on their gender pay gap. Although many employers who are required to report on their gender pay gaps voluntarily provide a narrative and action plan alongside their gender pay gap data, it’s not currently compulsory to do so.

Under Labour’s proposals, these businesses will be legally required to create action plans detailing how they intend to close their gender pay gaps. Labour’s reforms will also require in-scope firms to include outsourced workers in their pay gap reports.

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Ethnicity and disability pay gaps

Large businesses with at least 250 employees will have to report on their ethnicity and disability pay gaps. There is currently no legal requirement to do so, although some large employers report on these matters voluntarily as part of their DE&I initiatives.

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Menopause action plans

Large businesses with at least 250 employees will have to produce a ‘menopause action plan’. The plan would need to demonstrate how the business supports employees going through menopause. Labour will also develop guidance and the factors employers should consider when supporting employees going through menopause.

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Flexible working

Labour plans to build on recent improvements to flexible working rights by making flexible working the ‘default’ working arrangement for all workers from day one, except where this is not reasonably feasible. It’s not clear what this will mean in practice, given employees now have a day one right to make a flexible working request. Labour has stated they want to improve opportunities for flexi-time contracts and hours that better accommodate working parents, which might imply this change is aimed more at helping families than a wholesale shift to flexible working for all businesses and workers.

Labour also plans to mirror developments in other parts of the world around ‘right to disconnect’ laws. These laws emerged following the rise in remote working during the Covid-19 pandemic. Right to disconnect laws tend to create a framework for employers and remote workers that protects their personal time and wellbeing when working from home or outside of normal working hours. Labour plans to introduce a similar ‘right to switch off’ in the UK, although it’s not currently known what this will entail, who will benefit and how it will be enforced.

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Family-friendly rights

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Labour’s New Deal proposes a package of improved protections that will benefit those taking leave for family reasons. These include:

 

New protections for pregnant women

It would be unlawful to dismiss a woman during pregnancy or within six months of her return to work, except in specific circumstances. Currently, it’s automatically unfair and discriminatory to dismiss an employee because of their pregnancy or because they took maternity leave. However, there is no restriction against dismissing pregnant employees or employees returning from maternity leave for reasons unrelated to their pregnancy or maternity leave. Although there have been recent developments to improve protections for such employees in redundancy situations, Labour’s proposals go much further and would make it very difficult to dismiss pregnant employees or those returning from maternity leave for reasons unrelated to their pregnancy or maternity leave.

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A day one entitlement to take parental leave

Under current parental leave rules, the parent of a child can take a total of 18 weeks of unpaid leave up to the child’s 18th birthday, with a maximum of four weeks’ leave per year per child. Currently, employees can only take the right to parental leave where they have been continuously employed for at least one year, but Labour intends to make this a day one entitlement.

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Bereavement leave

Labour plans to introduce a bereavement leave entitlement for all workers. Currently, a framework exists for parents to take bereavement leave following the death of a child, although it’s only available to employees. Employers tend to offer time off in other circumstances and to other categories of workers at their discretion on compassionate grounds. It’s not clear how wide the right would be under Labour’s proposals (eg the types of relationships to which it would apply) or whether it will be a paid right.

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Carer’s leave

The previous government recently introduced a new unpaid time-off right for carers. Labour plans to review the implementation of this new right and explore the possibility of making this a paid right for carers to take time off, although it has stopped short of making a commitment to paid time off.

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Redundancies and TUPE

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Changes are expected around when collective redundancy consultation is triggered in large-scale redundancy situations.

 

Currently, if an employer proposes 20 or more redundancies within a 90-day period, it must consult collectively with employee representatives or trade unions on how to avoid or limit the impact of redundancies. Case law in the UK has confirmed that this requirement is only triggered if the threshold of 20 employees is reached at one workplace (eg a single manufacturing plant or store). This has typically allowed employers to avoid collective consultation where staff are dispersed across multiple sites and the overall number of affected workers at each site is below the threshold of 20.

 

Labour’s proposals involve triggering collective consultation where that threshold is reached across the business as a whole. For example, a business with two sites with ten redundancies proposed at each site would, under Labour’s proposals, be required to consult collectively.

 

This change will have a significant impact on how employers approach redundancies where the workforce is spread across different sites and will likely result in an increase in collective consultation processes. It’s also worth mentioning that businesses have to notify the Secretary of State of collective redundancies, potentially increasing the amount of administration on employers running multi-site redundancies.

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Labour is also planning to make reforms to TUPE (the employment laws that apply on a business transfer or outsourcing). It states that Labour will strengthen the rights and protections for workers involved in a TUPE transfer. However, there are already extensive protections under TUPE (eg protection against dismissal and limits on changing terms and conditions) and Labour hasn’t been clear on exactly what would change. Potential areas of change might include restrictions on how employers assign employees in advance of a transfer, for example restricting so-called ‘employee dumping’, although this is speculative and we will need to see the detail from Labour in due course.

Trade unions and collective bargaining

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The New Deal proposes a number of improvements to trade union rights, with implications for businesses operating in unionised environments:

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Removal of restrictions on industrial action

Legislation passed by the previous government places restrictions on when lawful industrial action can take place (eg with longer notice periods, higher ballot thresholds and picketing restrictions). Labour plans to repeal these restrictions, together with abolishing minimum service levels in certain industries and restrictions on certain workers going on strike. This will make it easier for trade unions to organise industrial action, possibly on short notice.

 

Access to workplaces

Trade unions will be given a reasonable right of access to workplaces in a ‘regulated and responsible’ manner. The aim is to allow trade unions better access to workers for recruitment and industrial organisational purposes. An increase in access to the workplace might be of alarm to some employers, but the New Deal makes it clear that the right of access framework will be designed in consultation with both trade unions and businesses and with an underlying set of ‘clear rules’.

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Simpler statutory recognition

Labour plans to reform and simplify the process of statutory recognition (ie the legal process by which an employer formally recognises a trade union). This will involve removing the requirement for trade unions to show that at least 50% of workers are likely to support trade union recognition before the formal recognition process begins, and modernising final ballot rules.

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Provision of union information

The New Deal proposes a new duty on employers to inform new joiners of their right to join a trade union and to periodically remind existing staff of this right. It’s expected that Labour will introduce this new duty by requiring employers to include information about the right to join a trade union in the section 1 statement of employment particulars given to employees at the start of their employment.

 

New rights for trade union representatives

The New Deal also proposes strengthening protections for trade union representatives and trade union officials when carrying out their work (eg protection against dismissal, intimidation and blacklisting).

 

Fair pay agreements in social care

The New Deal proposes a Fair Pay Agreement in the adult social care sector. This would allow workers and trade unions to negotiate better pay and working conditions in the adult social care sector. Employers operating in this sector should take note of these changes. If and when they come into force, they will likely involve minimum terms around pay and working conditions that would be set under collective bargaining processes, as opposed to something they set themselves as the employer. Collective bargaining agreements also tend to include terms around termination procedures and severance payments.

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Collective grievances

The New Deal proposes a mechanism to allow employees to raise a collective grievance with ACAS. It’s not clear what this means in practice as employees raise internal grievances with their employer and not with ACAS. It’s likely that what Labour actually intends is for employees to be able to raise collective grievances with their employer, although it could mean employees will be able to start ACAS Early Conciliation (ie the first step when making an employment tribunal claim) on a collective basis.

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Artificial intelligence

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The risks of job automation from artificial intelligence are well-known. Labour’s New Deal intends to address these risks by protecting ‘good jobs’ and ensuring ‘good future jobs’. It intends to protect workers with rights and entitlements and safeguard workers against discrimination (which might imply algorithmic discrimination). Labour also plans more robust requirements around surveillance technologies that intrude on a worker’s privacy, for example requiring consultation and negotiation with trade unions and employee representatives on a high-risk technology.

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Conclusion

Labour’s New Deal for Working People represents a new dawn for employment laws in the UK. If implemented as proposed, it introduces considerably improved employee rights and protections with consequences for how employers approach everything from administering statutory entitlements to dismissals and relationships with trade unions. We’re still in the very early days of the new Labour government and it remains to be seen if and when all of the proposals we’ve discussed will become law.

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If you would like advice on what you need to do to accommodate the changes please 

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Employee holding gender critical beliefs suffered harassment and employer failed to take reasonable steps to prevent it (Fahmy v Arts Council England)

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What happened in this case?

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Ms Fahmy worked for Arts Council England (ACE). She holds gender critical beliefs, meaning she believes that sex is real, important and immutable and should not be conflated with gender identity. She does not believe that trans women are women, nor that trans men are men.

ACE created a fund to support creative and cultural activities during the Queen’s Platinum Jubilee. The London Community Foundation (LCF) was responsible for awarding part of this funding to organisations in London. In April 2022, the LCF made a funding award to an organisation called the LGB Alliance to make a film. The LGB Alliance has faced accusations that it is transphobic due to the exclusion of trans issues from its campaigning remit. Following a negative reaction on social media, LCF suspended the grant.

On 14 April 2022, ACE held a ‘drop in’ Teams video meeting open to all staff to discuss this decision. Around 400 out of 700 staff members attended, including Ms Fahmy. The meeting was chaired by Mr Mellor, the Deputy CEO of ACE. During the meeting, Mr Mellor said that the LGB Alliance was ‘a divisive organisation’ with a history of trans-exclusionary activity and that his personal view was that the funding award had been a mistake.

Ms Fahmy challenged Mr Mellor, stating that it was misleading to describe the LGB Alliance as anti-trans. She also asked how gender critical views were protected within the organisation. Other employees on the call made comments criticising Ms Fahmy’s position stating that it was ‘extremely disappointing’ to see a defence of the LGB Alliance. Another said that ACE was not obliged to protect people’s views, only to protect the welfare of its employees.

After the meeting was over, Mr Mellor contacted Ms Fahmy to acknowledge that the session must have been ‘uncomfortable’ for her and that Fahmy might be feeling ’a little isolated and bruised’. Mellor also said these were hard issues to resolve. Fahmy replied, stating that she did not feel bruised or isolated and agreed that it was a difficult subject. Fahmy challenged Mellor’s decision to voice his personal views in the Teams meeting and said this conflicted with ACE’s duty to foster freedom of speech or a respectful working environment.  

Later that day, Mr Mellor went on to send an all-staff email saying the ’well-being of everyone is our number one priority, and it always will be. This includes all our LGBTQIA+ colleagues. I particularly want to express my personal solidarity with our trans and non-binary colleagues’.

On 11 May 2022, another employee, known only as ‘SB’, sent an all-staff email encouraging staff to sign a petition created to raise a formal grievance about the Teams meeting and the colleagues who had expressed ‘clear, homophobic, anti-trans views’. It was open to staff to add comments and several posted comments which referred to gender-critical beliefs as a ‘cancer’ and equated such views to racism or sexism. Another comment described the LGB Alliance as ‘a glorified hate group’ supported by ‘neo-Nazis, homophobes and Islamophobes’.

The next day, Ms Mitchell, Ms Fahmy’s line manager, emailed Mr Henley, the CEO of ACE, raising concerns about the petition and the associated comments. She said that it encouraged ‘poor and unprofessional behaviour from staff’, that some of the comments could be seen as ‘inciting hate’ and that some were clearly directed at Ms Fahmy. She asked that consideration be given to the distress caused to Ms Fahmy and other members of staff. The petition was eventually removed after it had been up for around 26 hours.

In September 2022, Ms Fahmy brought a claim alleging harassment related to her gender critical beliefs. She also brought a claim of victimisation. This analysis discusses the harassment claim only.

 

What was decided?

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It was not in dispute that Ms Fahmy’s gender critical beliefs were protected under the Equality Act 2010 (EqA 2010) following the Employment Appeal Tribunal decision in Forstater v CGD Europe UKEAT/0105/20/JOJ. Therefore, the issue the tribunal had to determine was whether she had been harassed on the grounds of those beliefs during the Teams meeting and as a result of the petition.

As to the Teams meeting, the tribunal said that it had been unwise for Mr Mellor to express personal views which had aligned him with one side of the debate. Indeed, the tribunal remarked that his actions in this respect had ‘opened the door’ for the subsequent petition and comments. Yet, the tribunal concluded that his comments at the Teams meeting did not amount to harassment. Nor did the tribunal believe that the comments expressed by other colleagues during the Teams meeting amounted to harassment. Ms Fahmy had chosen to engage in what was a robust debate on a controversial topic. Although she was angry and upset, it had not come as a shock to her, and she had said herself that she did not feel bruised or isolated.

However, the harassment claim was upheld in relation to SB’s email about the petition and the comments arising from this made by other members of staff. Ms Fahmy had been left feeling ‘deeply upset’. ACE sought to avoid liability for this harassment on the basis that it had taken all reasonable steps to prevent it from occurring. In particular, it had suspended SB, had taken disciplinary action against two employees who had posted comments, and it had a Dignity at Work policy in place. However, the defence failed because:

• the Dignity at Work policy had not been reviewed since 2019

• the Dignity at Work policy did not accurately set out the characteristics protected under EqA 2010. It referred to ‘gender’ (which is not a protected characteristic) and omitted both ‘sex’ and ‘belief’ (which are protected characteristics), and

• ACE knew that it needed to update its equality training to include belief discrimination, but it had failed to do so on the basis that it had not found a suitable trainer to deliver the training

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What are the learning points for employers?

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It is clear that this is a debate which provokes strong feelings. Employers must equip themselves to navigate this potential clash of rights.

On the one hand, gender critical beliefs are protected beliefs and workers should not be discriminated against or harassed for holding or expressing such beliefs. On the other hand, trans workers who have undergone gender reassignment are protected from discrimination and harassment. Further, trans workers who have not undergone gender reassignment, and workers who are not trans themselves may find the expression of gender critical views to be offensive and also complain of harassment.

In either case, employers can be vicariously liable for acts of discrimination or harassment committed by their workers. What practical steps can be taken to manage this risk?:

• ensure that Dignity at Work policies (and related policies) are up to date. Ideally, such policies should be reviewed on an annual basis

• ensure that the terminology used in such policies reflects EqA 2010 (eg ‘sex’ rather than ‘gender’) and that it covers all protected characteristics. Underline that those holding gender critical beliefs and trans workers are protected from discrimination.

• set out the standards of behaviour expected from staff, including the need to treat colleagues with dignity and respect, both in person and in virtual meetings and also in electronic communications. Explain that disciplinary action will follow where staff fail to meet such standards, up to and including dismissal

• advise those in managerial positions to take care when and how they express their personal opinions on the debate. As happened in this case, doing so may embolden employees on one side of the debate to become more antagonistic towards those on the other side, in turn, risking harassment claims

• ensure that such policies are actually communicated and read by staff. Consider asking staff to provide a written acknowledgement that they have read and understood them

• deliver equality training to staff, ensuring that it is balanced, thoughtful and clearly presented and also refreshed at regular intervals. Failure to do this may mean that you cannot rely on a defence that you have taken all reasonable steps to prevent discrimination. Ensure that the training covers belief discrimination alongside other types of discrimination. This is an area which is often overlooked in the training scope

• respond quickly and effectively to complaints of discrimination or harassment

• continue to monitor this fast-moving area of law. The tribunal’s decision in another gender critical belief case—Meade v (1) Westminster City Council and (2) Social Work England is expected later this year

 

If you would like us to review your policies and/or provide your employees with training, please contact us 

 

Sex, Gender and Discrimination

As a HR manager, you may be confident on the terminology of sex and gender, but are the other managers and staff in your organisation?

You may find this is to be a brief helpful summary.

Under the Equality Act 2010, ‘sex’ is understood as binary, a person being a man or a woman. Sex is a protected characteristic under the Act

For the purposes of the Act, a person’s legal sex is their biological sex as recorded on their birth certificate.

A trans person can change their legal sex by obtaining a Gender Recognition Certificate. However, a person does not need a Gender Recognition Certificate to be protected under the characteristic of gender reassignment

The 2010 Act defines “gender reassignment,” as a protected characteristic – That is, an individual who is - proposing to undergo, is undergoing, or has undergone a process (or part of a process) to reassign their sex by changing physiological or other attributes of sex.

Gender reassignment is a personal process, that is, moving away from one’s birth sex to the preferred gender.  It does not require the individual to undergo medical treatment.

Example: A person who was born physically female decides to spend the rest of his life as a man. He starts and continues to live as a man. He decides not to seek medical advice as he successfully passes as a man without the need for any medical intervention. He would be protected as someone who has the protected characteristic of gender reassignment. (Equality and Human Rights Commission).

People who start the gender reassignment process but then decide to stop can still have the protected characteristic of gender reassignment.

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In a 2020 case the Birmingham Employment Tribunal held that the claimant had the protected characteristic of “gender reassignment” regardless of the fact they had not undergone any surgical procedure/ reassignment.

The Claimant had informed her employer that she was transitioning from male to female gender identity and she self-identified as both “gender fluid” and “non-binary”. She had stated on some days she would wear women’s style clothing, on others men’s style clothing. She did not change her name from male to female during her employment. The tribunal judge stated: -

 

“We thought it was very clear that Parliament intended gender reassignment to be a spectrum moving away from birth sex, and that a person could be at any point on that spectrum. That would be so, whether they described themselves as “non-binary” i.e. not at point A or point Z, “gender fluid” i.e. at different places between point A and point Z at different times, or “transitioning” i.e. moving from point A, but not necessarily ending at point Z, where A and Z are biological sex. We concluded that it was beyond any doubt that somebody in the situation of the Claimant was (and is) protected by the legislation because they are on that spectrum and they are on a journey which will not be the same in any two cases. It will end up where it does.”

You may be wondering how many individuals this may effect in England and Wales. In the census of 2021, the question on gender asked those aged 16 years and over. “Is the gender you identify with the same as your sex registered at birth? In total, 45.4 million (93.5%) answered “Yes” and 262,000 (0.5%) answered “No”. The remaining 2.9 million (6.0%) did not answer the question. Out of the 262,000

 

• 118,000 (0.24%) answered “No” but did not provide a write-in response

• 48,000 (0.10%) identified as a trans man

• 48,000 (0.10%) identified as a trans woman

• 30,000 (0.06%) identified as non-binary

• 18,000 (0.04%) wrote in a different gender identity

 

How does this affect you as an employer?

The Equality Act protects individuals from discrimination and harassment on the basis of the protected characteristics including sex and gender reassignment.

You therefore need to consider if you have sufficient policies and processes to reduce the chance of any claims for discrimination and harassment. ACAS states

“You can help prevent discrimination in the workplace by steps including:

• having an up-to-date equality policy

• providing regular anti-discrimination training to staff

• making it clear how staff can complain if discrimination happens

• regular one-to-one catch-ups between employees and their line managers, to help build positive working relationships 

 

This can help:

• make sure your workplace treats employees fairly

• make it less likely you'll be held responsible for discrimination carried out by an employee”

 

if you require advice, updated policies or training on these or any other employment law and HR issues please contact give us a call on 01757 701111 or email 

    

 

Common errors employers make when making redundancies

 

The potential dismissal must be due to a business closure, a workplace closure or the employer's diminished or diminishing requirements for employees to work of a particular kind to be on the grounds of redundancy.  It cannot be for another reason, e.g. to recruit some one cheaper to do the job.  

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Consultation being late or inadequate is a common area of area for error.  Consultation should start at a formative stage before the big decisions have been made so employees stand a chance have having an input before the redundancy becomes a fait-acompli.   This is especially the case when there are 20 or more employees at risk of redundancy as a more complex collective consultation must take place to avoid claims for protective awards, which can be up to 90 days gross pay for each affected employee.  

 

Having an unfair selection criteria is anther common failure.  A selection criteria should avoid being subjective, should not unlawfully discriminate and should be capable of objective measurement.  Skills and disciplinary records are such objective criteria, whereas attitude and having company values is not.

 

Applying a good selection criteria unfairly could lead to an unfair dismissal.  For example using the same written warning to score the employee down under more than one selection criteria could be unfair.  There is also the need for transparency so the employee can understand and potentially challenge their score.

 

The main focus of consultation is to look at ways of avoiding redundancy.  This may be looking across the wider group or in different department for vacancies or consider other alternative, such as a reduction in hours.

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If you are looking at making redundancies it is usually best to get some legal advice to you avoid such errors.  Please feel free to call us on 01757 701111 or email us 

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Medical experts - Is your employee a disabled person?

Many businesses or organisations will request an occupational health report or perhaps a report from a GP when an employee is: on long term sick, has short term intermittent absences or their health is otherwise impacting upon their ability to carry out their normal duties.

These reports are often considered in disability discrimination cases and those for unfair dismissal where the employee has been dismissed for ill-health.

In such cases the manager will often ask the medical expert if the employee is a disabled person under the Equality Act.

However, it is clear that the responsibility for deciding whether an individual is disabled for the purposes of the Act rests with the tribunal and not a medical practitioner.

So, asking the question, “Do you believe XXXX is a disabled person under the Equality Act?”  or a similar question may be of no real help.

The tribunal will pay close attention to the statutory guidance on the definition of disability Equality Act 2010 Guidance (publishing.service.gov.uk)

You may well be advised to provide the medical expert with a copy of the guidance and ask for their input on relevant matters, but you should be specific in the questions that you put to the medical expert and ask them to answer, as far as possible, all questions.

Those questions should centre on the nature of the employees physical or mental

impairment and can include how the impairment effects the employee (at work and outside work), how long they have had the impairment, how long it is likely to last, together with the effects of any medication.

The prospect of a person being disabled can have serious implications on how you deal with absence management, the process you follow, and the decisions you make.

If you require advice or help on instructing experts, we are here to help. The contents of a medical report can have a significant bearing on findings in both disability cases and those for unfair dismissal.

 

Redundancy selection criteria and reasonable adjustments due to disability.

Where an employer applies a provision, criterion or practice (PCP), which places a person who has a disability, at a substantial disadvantage (compared with persons who are not disabled), then the employer is under a duty to take such steps as it is reasonable to have to take to avoid the disadvantage i.e.  an employer has a duty to make reasonable adjustments.

If the employer fails to do so, then that is discriminatory.

A PCP can include formal or informal policies, and the selection criteria in a redundancy process.

Therefore, adjusting the redundancy selection criteria for a disabled worker could be a reasonable adjustment, such as ignoring disability related absence. If you fail to do so, then that could be an act of disability discrimination.

To be a reasonable adjustment it must have a real prospect of preventing the disadvantage - so not every adjustment will be reasonable.

The Equality and Human Rights commission lists factors which may be taken into account when deciding what is a reasonable step for an employer to have to take:

1. Whether taking any particular steps would be effective in preventing the substantial disadvantage.

2. The practicability of the step.

3. The financial and other costs of making the adjustment and the extent of any disruption caused.

4. The extent of the employer’s financial or other resources.

5. The availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work).

6. The type and size of the employer

 

Therefore, before you embark on the selection process consider if any of the selection criteria substantially (meaning more than minor or trivial) affects disabled employees. If they do, consider changing or amending the criteria or consider how it will be applied.

 

You of course need to consider if any of the employees are disabled – it is only if they are that you are under a duty to make reasonable adjustments.

 

If you are considering redundancy dismissals, please do not hesitate to contact us for practical advice and assistance.

    

Fair dismissal for derogatory comments against employer on Facebook

The EAT has held that it was fair to dismiss an employee that made derogatory comments about his employer on Facebook. It did not matter that the misconduct had taken place two years before dismissal or that the employer had been aware of the misconduct throughout that period. (The British Waterways Board v Smith [2015] UKEAT/0004/15.)

 

 

Unfair dismissal: applying the band of reasonable responses

The Court of Appeal has restored an employment judge's decision that an employee was unfairly dismissed for gross misconduct because no reasonable employer would have dismissed him in the circumstances. The court held that the judge's findings of fact entitled him to conclude that the dismissal had also been unfair by comparison with the disciplinary treatment of another employee involved in the same incident and mitigating circumstances including length of service had not been considered.

 

This case highlights the difficulty of deciding whether an employment judge or tribunal has applied the band of reasonable responses or has substituted their own view of what they consider should have been done in a particular case. The court emphasised that the requirement for a determination in accordance with equity and the substantial merits of the case means that assessing an employer's response goes beyond a tick-box exercise and that the band of reasonable responses is not infinitely wide. (Newbound v Thames Water Utilities Ltd [2015] EWCA Civ 677.)

 

 For further details contact us.  

 

Peripatetic workers' travel time to first and last customers of the day is "working time"

The ECJ has followed the Advocate General's opinion by finding that the time spent by workers, who do not have a fixed or habitual place of work, on travelling each day between their homes and the premises of the first and last customers designated by their employer is "working time" for the purposes of the Working Time Directive (2003/88/EC).

 

While the decision is not surprising in the sense that it follows the Advocate General's opinion, it will have a significant impact on the current trend for companies wanting to move from office-based businesses to more mobile ones. (Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another.)

 

 For further details contact us.  

 

Sick workers: no need to demonstrate inability to take annual leave to benefit from carry-over

The EAT has held that the Working Time Directive does not require workers on sick leave to demonstrate that they are physically unable to take annual leave in order to carry over accrued unused statutory holiday to a subsequent leave year. It is sufficient that they are absent on sick leave and do not choose to take annual leave during that period. 

 

However, the EAT also held that the right to carry over leave is not unlimited. Having regard to the Advocate General's opinion and the ECJ's decision in KHS AG v Schulte, it held that the Directive only requires (at most) that workers on sick leave can take annual leave within a period of 18 months of the end of the leave year in which it accrues. Consequently, regulation 13(9) of the Working Time Regulations 1998 is to be read as permitting a worker to take annual leave within 18 months of the leave year in which it accrues where they are unable or unwilling to take it because they are on sick leave. Given the wider importance of the issues and the evolving nature of the case law, the parties have been given leave to appeal to the Court of Appeal. (Plumb v Duncan Print Group Ltd UKEAT/0071/15.)

 

For further details contact us.  

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