New Legal Duty on Employers to Prevent Sexual Harassment in the Workplace
New Legislation Enacted
By Chris Coombes and Natasha Adom
Effective October 26, 2024, employers in Great Britain will be under a new legal duty to take reasonable steps to prevent the sexual harassment of their employees in the course of employment. Although employers are already under a duty not to harass employees and can also be liable for acts of sexual harassment by their employees in the course of employment unless they have taken “all reasonable steps” to prevent such harassment, the Worker Protection (Amendment of Equality Act 2010) Act 2023 creates a new, preventative duty.
Key points to note:
- The new duty is to take “reasonable steps” to prevent sexual harassment, not “all reasonable steps”
- The duty only applies to sexual harassment, not harassment on any other protected grounds such as race or disability
- Employers are expected to take reasonable steps to prevent sexual harassment by third parties such as customers, clients, contractors, service users, or delegates at a conference. However, an employee cannot bring a standalone claim against their employer for third party harassment
- The Equality and Human Rights Commission (EHRC) can take proactive enforcement action such as investigating the employer, issuing notices, entering into binding agreements or obtaining injunctions
- Employees do not have a right to bring a legal claim against their employer for failure to comply. However, if there is a finding of sexual harassment, to any extent, the Employment Tribunal must consider to what extent the employer’s duty has been complied with, and it may order a compensation increase of up to 25%. Given that compensation is uncapped, this could be a significant increase
- Compliance: On September 26, 2024 the EHRC updated its technical guidance on sexual harassment to explain
the scope of the new duty, including the steps that employers will be expected to take. Employers are unlikely
to be able to comply with the new duty without having carried out a risk assessment to identify their particular
risks and the steps that are reasonable for it to take
Obligations under New Allocation of Tips Law
New Legislation Enacted
By Deborah Margolis
The Employment (Allocation of Tips) Act 2023 came into force on October 1, 2024. This is most likely to impact the hospitality sector as it regulates how employers allocate tips, gratuities, and service charges among workers and eligible agency workers, and provides that employer-received tips, gratuities and service charges are to be given to employees in full and allocated fairly and transparently. Failure to comply with the new obligations can lead to various remedies, including the payment of compensation of up to GBP 5,000 for financial loss suffered by the
complainant.
The government has also published a Statutory Code of Practice that provides further details on the new laws. Failure to comply with the Code does not give rise to a cause of action itself but it will be admissible as evidence in Employment Tribunal proceedings and tribunals will be required to take the Code into account.
Court Decision and New Law on Fire and Rehire Practice
Precedential Decision by Judiciary or Regulatory Agency
By Laura Lobb
In the UK an employer can change an employee’s terms and conditions of employment in limited circumstances. Contractual change is most easily effected by agreement. If agreement cannot be reached, some employers take the approach of dismissing the relevant employee(s) and immediately offering reemployment on varied terms and conditions. This process is referred to as “fire and rehire.” In a recent case, the Supreme Court issued an injunction preventing an employer from dismissing and re-engaging employees on revised terms. The case was unusual
in that the employees’ contract, which had been in place since 2007, essentially provided for enhance pay on a
permanent basis.
A new statutory Code of Practice on fire and rehire came into effect on July 18, 2024, and the new UK Government has pledged to a) replace this Code (which it considers inadequate) with a new, “strengthened” code of practice and b) reform the area of law to provide “effective remedies.” While it is not expected that the practice will be banned outright, the new government’s “Plan to Make Work Pay” indicates that in future, fire and rehire may only be permitted in limited circumstances where there is genuinely no alternative, and the employer has followed a proper process involving dialogue with workers.
New Government Employment Law Proposals
Proposed Bill or Initiative
By Darcey Phillips
The new Labor government has promised to make significant changes to employment law in its “Plan to Make Work Pay,” and an Employment Rights Bill is anticipated by mid-October.
As part of the reforms, recent developments include:
- The Workers (Predictable Terms and Conditions) Act 2023 will no longer go into effect
- The Trade Union Act 2016 and the Strikes (Minimum Service Levels) Act 2023 will be repealed
- The Low Pay Commission has released a policy paper outlining its updated approach to recommending increases to the National Living Wage (NLW) and National Minimum Wage (NMW), confirming that effective April, 2025, the NLW rate will be raised based on the cost of living. Additionally, the NMW rate for 18- to 20-year-olds will increase over time to reduce the gap with the NLW, a move towards the government’s long-term goal of establishing a single adult rate. The Commission will submit its recommendations to the government by the end of October 2024
