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Cancer: a disability without dispute

Posted on: February 4th, 2025 by Natasha Cox

Reports show that since the pandemic there has been a sharp rise in cancer diagnoses in those under the age of 50[1]. The NHS states that 1 in 2 people will have cancer in their lifetime[2] and the dire impact cancer can have on health and quality of life is well known. With cancer more commonly affecting the workforce, what do employers need to be aware of in relation to their employment law obligations to cancer sufferers?

Disability discrimination

Under the Equality Act 2010 (“EqA”) individuals are protected from disability discrimination at work. This protection is afforded not just to employees, but also to workers and the self-employed.

Legislation defines disability as a physical or mental condition which has a “substantial and long-term adverse effect on the ability to carry out normal day-to-day activities”[3]. 

Individuals who suffer certain named conditions, including cancer, are protected from discrimination as soon as they are diagnosed, even if it the illness does not immediately have an impact on their ability to carry out day-to-day activities.

Disability discrimination can occur in any of the following situations:  

  • Direct discrimination: an individual is treated less favourably than others because of their cancer (section 13 EqA)
  • Indirect discrimination: a provision, criterion or practice is in place which applies equally across the workforce, but which disadvantages individuals with cancer more and without any objective justification (section 19 EqA)
  • Harassment: an individual suffering from cancer is treated in a way which makes them feel that their dignity has been violated, they are intimidated or humiliated, or their working environment is hostile, degrading or offensive (section 26 EqA)
  • Victimisation: an individual with cancer is subjected to a detriment because they have complained, or intend to make a complaint, about disability discrimination (section 27 EqA)
  • Discrimination arising from disability: an individual with cancer is treated unfavourably because of something arising from their diagnosis, for example, being penalised under an absence management policy because they are required to attend regular hospital appointments and without any objective justification (section 15 EqA)
  • Failure to make reasonable adjustments: an employer fails to make reasonable adjustments to mitigate any substantial disadvantage a person with cancer may have as a consequence of their illness or its treatment (section 20 EqA)

The extent of protection for those with cancer  

Regardless of the stage or severity of the diagnosis, once an individual has been diagnosed with cancer, they are protected from discrimination. The protection is wide ranging: In Lofty v Hamis[4], the EAT held that an employee diagnosed with a non-invasive, pre-cancerous form of melanoma was protected.

Tribunals take a holistic approach when determining the reason for the detrimental treatment. In Willis v NatWest Bank[5], the employment tribunal held that the decision not to renew Ms Willis’ secondment and the termination of her employment was due to her cancer, not redundancy as alleged. A key indicator was that the work she had been contracted to do still had to be carried out following the termination of her employment.  

The protection applies to individuals throughout their employment, including during recruitment and probationary periods. In Lyddall v The Wooldridge Partnership[6], Ms Lyddall suffered from cancer during her probationary period. Her employment was terminated at the end of her probationary period, purportedly for performance reasons. This was said to be the case despite a lack of feedback regarding her performance. The Wooldridge Partnership argued that it had not provided negative feedback due to a desire to avoid causing stress to Ms Lyddall while she was undergoing treatment. The tribunal was not convinced by this argument and held that as Ms Lyddall’s cancer was a factor in her dismissal it was discriminatory.   

Employers’ considerations in relation to employees with cancer  

Employees are not required to disclose their health concerns or diagnoses to their employer. Employers cannot rely on employees’ failure to disclose a diagnosis as a defence to discrimination claims and employers will be liable for discrimination where the facts show they should have known about an employee’s disability. Therefore, employers must be prudent and pay close attention to individuals’ behaviours and routine changes, as these may indicate an ongoing medical condition which may constitute a disability under the EqA.

To ensure that individuals with cancer are not substantially disadvantaged, employers should seek to work collaboratively with their employees to understand any issues that may arise as a consequence of their illness and treatment. Employers should seek to identify any reasonable adjustments that might provide solutions to those concerns. Referrals to occupational health can be valuable as they can help both individuals and employers understand a treatment plan and any side effects the individual may experience. Occupational health reports can also be a helpful too in working out whether any particular issues are likely down to the employee’s illness, or whether they can be properly attributed to other issues, such as performance or conduct concerns.  

Employers should also take proactive steps to ensure a work environment free from discrimination and harmful ‘banter’ relating to disability. Having comprehensive policies in place and providing training on equal opportunities can reduce the risk of discrimination. If an employer receives a complaint of discrimination, it should be properly investigated, and disciplinary action should be taken where necessary. It is important to remember that a one-off act is sufficient to constitute discrimination, and the perpetrator’s intention is irrelevant.  

How we can help

If you have any questions about employers’ responsibilities and liabilities relating to disability discrimination, or if you need assistance regarding employee complaints, please contact a member of our Employment team.

[1] Cancer rates rising in under-50s – Cancer Research UK – Cancer News

[2] Cancer – NHS

[3] Definition of disability in section 6 of the Equality Act 2010 – GOV.UK

[4] Mrs C Lofty v Mr S Hamis t/a First Café: UKEAT/0177/17/JOJ – GOV.UK

[5] Ms A Willis v National Westminster Bank plc: 2205821/2020 – GOV.UK

[6] Mrs L Lyddall v The Wooldridge Partnership Ltd: 3314738/2021 – GOV.UK

Emma Cocker comments on managing discrimination and harassment in the workplace

Posted on: January 9th, 2025 by Natasha Cox

Senior Associate Emma Cocker comments on the legal action facing McDonald’s over allegations of widespread harassment and discrimination, and discusses employers’ obligations to protect their staff and workplace.

Emma’s comments were published in Business Matters Magazine, 7 January 2025, and can be found here.

“All employers have duties to protect their staff against discrimination and harassment in the workplace – obligations which apply regardless of whether people are engaged on a full-time, part-time or zero hours basis.

“However, with most McDonald’s workers being engaged on a zero hours basis, individuals will be acutely aware of their employment insecurity. They are also likely fearful of being subjected to detrimental treatment for raising complaints. The abuse which arises from the imbalance of power inherent in these types of workplace relationships can lead to significant liability for businesses, of which employers must be conscious.

“It would appear that McDonald’s still has a long way to go in providing a safe working environment free from discrimination and harassment. How they handle these claims will likely be carefully scrutinised. The longer businesses allow this kind of behaviour to persist, the longer the list of grievances and legal claims they will face.”

For more information on our Employment services, click here

Joanne Leach, Emma Cocker and Becci Collins examine the government’s crackdown on foreign labour exploitation, in People Management

Posted on: December 19th, 2024 by Natasha Cox

Senior Associates Joanne Leach and Emma Cocker and Solicitor Becci Collins explore the government’s recently announced plans to tighten immigration systems, and discuss how this will impact employers and employees, in People Management.

Joanne, Emma and Becci’s article was published in People Management, 17 December 2024, and can be found here.

Government cracks down on foreign labour exploitation: what employers need to know

Emma Cocker, Joanne Leach and Becci Collins explain recently announced plans to tighten immigration systems, and how they will affect business that hire overseas talent.

On 28 November 2024, the government announced that it intends to tighten immigration worker systems by extending categories of breaches, as well as strengthening sanctions. In its pre-election manifesto, the government stated that it intended “to reduce net migration through proper control and management of the visa framework”. The proposed new rules are evident of the government’s intent to “crackdown on visa abuse and prevent exploitation”.

The government proposes extending the circumstances in which sanctions can be issued to companies that sponsor overseas workers, to include those who commit serious employment breaches. It is expected that this will include the reforms proposed in the Employment Rights Bill published in October, as well as existing rights, such as the entitlement to national minimum wage. However it is unclear how a company will be judged to be in breach of employment laws. Such a finding could potentially derive from a successful employment tribunal claim, or a new regulatory body may be tasked with assessing failure to comply with minimum standards.

The current sanctions available to enforcement officers in relation to companies held in breach of immigration laws can only be issued for a period of 12 months. For those who commit repeat offences, this period will be doubled to “at least” two years, suggesting there is a possibility of longer sanction periods.

There will also to be a new initiative to take pre-emptive action against those who are suspected of committing serious breaches.  Where there are already signs of rule breaking, the government intends to use action plans to bind businesses to take specified steps to improve and correct issues. Currently, action plans can be implemented for a period of three months. However, this is to be extended to 12 months. If the required improvements are not made, the sponsor’s licence will be revoked.

Tougher rules to prevent companies exploiting cheap foreign labour should be welcomed. Workforces are strengthened by the diversity brought to organisations by migrant workers and those individuals deserve not to be exploited. This issue is also addressed by proposals that intend to prohibit exploitation by passing on the costs of recruiting overseas workers to the individual, sometimes at a premium or excessive rate. These costs can result in individuals being left with unfair and unmanageable debts to their employers. The proposal to ban these practices will help to ensure that only businesses who genuinely require overseas workers – and can afford to recruit them in a fair and respectful way – benefit from the immigration system.

Prudent employers will take the recently published statistics as a warning, indicating how seriously the government takes the issues of tackling abuse and failing to adhere to the immigration system rules. For example:

  • In October 2024, there were 856 visits conducted to businesses suspected of employing illegal workers, a 55% increase on visits carried out in October 2023.
  • Between January and October 2024, more than 6,600 visits were made, a 22% increase on the same period in 2023.
  • Between January and October 2024, over 4,600 arrests were made, a 21% increase on the same period in 2023.

The government’s intention to expand the circumstances in which sanctions can be issued to include employment law breaches, and to extend the penalty from being banned from hiring overseas workers from one year to two, will shift the compliance landscape considerably. Further extending the power of Home Office officials to permanently withdraw a company’s sponsorship licence if they breach employment laws could have catastrophic consequences for businesses relying on an overseas workforce. However, it seems that the proposed expansion only applies to companies. It may be more effective to increase the sanctions on individuals who facilitate these breaches – perhaps further changes are to come before the draft legislation reaches parliament.

It is uncertain when we can expect this law to come into effect, but we shouldn’t expect this to be the final crackdown by the government. We may also see the reintroduction of the resident labour market test, or salary thresholds and visa fees being increased. Hopefully, the government will consult early as to how these changes may be implemented but, in the meantime, companies effectively have a grace period to get their house in order.

Companies should take an active approach to ensure compliance in all areas of employment and immigration law and they should do more than take a simple ‘tick box’ approach. Employers should review their policies and procedures to ensure they are up to date and meet minimum standards to avoid the above-mentioned sanctions, as well as the reputational damage and disruption to the running of a business held to be in breach of immigration and/or employment laws.

This announcement should serve as a wake-up call to all employers that they must comply with employment laws as well as immigration rules, otherwise they will face increasingly severe consequences of enforcement.

If you have any questions about the government’s plans and how you can ensure your business is complying with employment and immigration laws, please contact a member of the Employment team.

Seasonal parties and employer liability for acts of misconduct by employees

Posted on: December 6th, 2024 by Natasha Cox

‘What happens on a staff night out, stays on a staff night out’

The holiday season is well underway with Christmas parties planned and booked. However, with seasonal joy and merriment comes a warning: inappropriate acts carried out by staff at company events can lead to liability on the part of employers.  

While it is well known and accepted that employers may be liable for inappropriate conduct by staff members in ‘the workplace’ and during office hours, employers are often less well versed in how to deal with inappropriate conduct at work-related events. So where is the line between work and non-work-related events, and how can employers best protect themselves?

Events outside the workplace and outside of working time

The law states that employers are liable for acts of harassment and sexual harassment carried out by their employees ‘in the course of employment’.

Despite this, there is a common and somewhat dangerous misconception that “what happens on a staff night out, stays on a staff night out.” This was the exact sentiment declared by a manager to Ms Pealing, a junior employee, before he attempted to place a banknote in her cleavage[1]. The respondents’ representative submitted that the manager’s conduct “wasn’t in works time, nor was it on works premises; it happened outside of work,” suggesting the employer would not be liable for the manager’s sexual harassment.

In Chief Constable of Lincolnshire Police v. Stubbs[2], the Employment Appeal Tribunal acknowledged that the dividing line between employment and off-duty conduct can become especially blurred where social events involving colleagues are concerned. Further, in Lister & Ors v. Hesley Hall Ltd[3], the House of Lords held that the question to be asked is whether the employee’s wrongful acts were “so closely connected with his or her employment that it would be fair and just to hold the employer vicariously liable”.

In the present case, the night out was attended almost exclusively by the first respondent’s employees. The premises at which the event took place was closed for the evening, and the two directors of the respondent company made a financial contribution to the night out. For these reasons, the Tribunal arrived at the unanimous view that there was a sufficiently ‘close connection’ between the employer and the incident to render it just that the employer should be vicariously liable for the manager’s sexual harassment.

The claimant in this case said she was left feeling “objectified” and “humiliated” and was awarded more than £5,000 in compensation.


Christmas parties in the employment tribunal

Each year the employment tribunal publishes a report on cases heard. This year to date, ten employment tribunal claims have cited Christmas parties and one third of the reported cases related to sexual harassment and/or discrimination related to sex.  

Employers must be aware that work-related events carry risk, in particular, where alcohol is involved. Sexual or sex-based harassment and discrimination is the largest area of risk, with the heady combination of alcohol and seasonal jollity sometimes becoming a toxic combination clouding employees’ judgement.

In addition to Ms Pealing’s case described above, there are a number of other cases which highlight the risks arising from such events, including:

  • In P v Chrest Nicholson Operations Limited[4], P’s complaints of harassment were upheld and her employer was liable, following a colleague of P attempting to kiss them whilst travelling in a taxi to a hotel following the company Christmas party, and P subsequently being raped by her colleague.
  • In Phillips v Pontcanne Pub Company Limited[5], Ms Phillips brought a successful constructive dismissal claim after she was put in a ‘playful’ headlock by a colleague during the company Christmas party which left her unconscious.


What steps can employers take to mitigate risk arising from workplace events?

While it is unlikely that employers will be able to eliminate all risks arising from workplace events, there are steps that can and should be taken both preventatively and following any complaint, to avoid escalation to an employment tribunal claim.

Preventative steps are even more important since the introduction in October of the new requirement for employers to take a positive action to prevent sexual harassment. Under the Worker Protection Act 2023 employers must take ‘reasonable steps’ to actively prevent the sexual harassment of their employees. If they don’t and the worst happens, they may be liable for compensation plus an additional uplift of 25% on the total compensation in relation to such failures. Examples of preventative steps include:

  • Carrying out risk assessments of the workplace and any particular events;
  • Implementing (or updating) policies relating to discrimination, harassment and disciplinary and grievance procedures; and
  • Training the workforce on what constitutes discrimination and harassment, the employer’s behavioural expectations and what to do if they are a victim.

As well as the positive duty to prevent sexual harassment, the law on harassment may afford an employer a defence to a claim of vicarious liability by showing that they took ‘all reasonable steps’ to avoid harassment (which is a higher bar than the ‘reasonable steps’ required under the preventative duty). An example of such a defence succeeding (albeit in the context of a personal injury claim) can be seen in the case of Shelbourne v Cancer Research UK[6] where the employer had risk assessed the event and sought to minimise any risks identified by hiring additional security guards and so they were not liable for the injuries suffered by one employee who was assaulted by another employee.

Employers should also be aware of the culture they are creating. The effect on the victim of any harassment is viewed subjectively, meaning that the effect is viewed through the eyes of the victim. As such, any claims that the behaviours were ‘banter’ or ‘a compliment’ are not an adequate defence. Employers should aim to cultivate a culture of respect and inclusivity and make it clear that discrimination and harassment will not be tolerated and will lead to disciplinary action.

If complaints of discrimination or harassment are made, these should be properly investigated, and disciplinary action meted out where necessary. In addition, complainants should never be treated less favourably for raising issues of discrimination and harassment.

How we can help

If you have any questions about employers’ duties to prevent discrimination and harassment or if you need assistance regarding employee complaints, please contact a member of our Employment team.

 

Sources:

[1] 8000363.2024_-_Miss_Freya_Pealing_v_1__The_Croft_Aberdeen_Ltd_2__Andrew_Robert_Eagar_-_Judgment.pdf (publishing.service.gov.uk)

[2] [1999] ICR 547

[3] [2001] ICR 665

[4] P v Crest Nicholson plc and Crest Nicholson Operations Limited: 3311744/2020 and 3313454/2020

[5] Phillips v Pontcanne Pub Company Ltd: 1600719/2018

[6] [2019] EWHC 842 (QB)

Joanne Leach comments on the new laws cracking down on bosses exploiting foreign workers in Personnel Today

Posted on: November 29th, 2024 by Natasha Cox

Senior Associate and employment law specialist Joanne Leach comments on the new laws just introduced that will ban bosses who fail to pay their staff the minimum wage from hiring workers from abroad for up to two years.

Joanne’s comments were published in Personnel Today, 28 November 2024, and can be found here.

“Tougher rules to prevent companies exploiting cheap foreign labour are certain to be welcomed. Workforces are strengthened by the diversity brought to organisations by migrant workers and those individuals deserve not to be exploited.

“However, extending the power of Home Office officials to withdraw a company’s sponsorship licence if they breach employment laws could have potentially catastrophic consequences for businesses which rely on an overseas workforce. This announcement should therefore serve as a wake-up call to all employers that they must comply with employment laws as well as immigration rules.

“The government’s intention to expand the circumstances in which sanctions can be issued to include employment law breaches and extend the penalty from being banned from hiring overseas workers from one year to two will shift the compliance landscape considerably. However, it seems that the proposed expansion only applies to companies. It may be more effective to increase the sanctions on individuals who facilitate these breaches – perhaps further changes are to come before the draft legislation reaches parliament.

“It is uncertain when we can expect this law to come into effect. Companies effectively have a grace period to get their house in order. To do so, they should be taking an active approach to ensure compliance in all areas. Employers should review their policies and procedures to ensure they are up to date and meet minimum standards.

“It is hoped the government also consults early as to how this change can be implemented. It is unclear how a company will be judged to be in breach of employment laws – will this finding derive from a successful employment tribunal claim or will a new regulatory body be tasked with assessing failure to comply with minimum standards?”

If you would like some advice on how these new regulations might impact you as an employer, please contact our Employment team.

Employment law insight: New obligations regarding the fair distribution of tips

Posted on: October 1st, 2024 by Hugh Dineen-Lees

October 2024

The Employment (Allocation of Tips) Act 2023 (“the Act”), supplemented by a statutory code of practice and associated non-statutory guidance, comes into force today, 1 October 2024.

The Act significantly impacts the hospitality industry by introducing new rules governing how employers must deal with tips paid by customers, and it is estimated it will lead to an additional £200m being taken home by millions of workers in the UK.

The new requirements

The new legislation affects all retail and hospitality businesses including restaurants, cafes, hotels, hairdressers and taxi firms.

Businesses must now ‘fairly allocate’ all tips received. In addition, tips must be paid straight to workers and cannot be retained by the employer for any reason, including for business expenses.

“Tips” includes gratuities and service charges. However, it does not include cash tips if those are received by a worker and not declared to the employer. It does not matter if the tip is made by card, cash, or via an app.

In addition, employers must not make any deductions from tips except for tax, and where appropriate, National Insurance.

Tips must be paid to the worker/employee no later than the end of the month following the month in which it was paid by the customer.

What does fairly allocating tips mean?

The statutory code states that allocating and distributing tips fairly does not necessarily require employers to allocate the same proportion of tips to all workers, providing there are legitimate reasons why different workers are allocated different proportions.

The code provides examples of the criteria that employers may consider when allocating tips, such as:

  • the number of hours worked in the period the tips were collected;
  • individual and team performance;
  • level of responsibility and/or seniority;
  • customer intention;
  • length of service;
  • type of role (e.g., front of house or back of house); and
  • rate of basic pay.

The code prevents employers from pooling tips from multiple sites and all individuals who are involved in providing a direct service to customers should be considered as part of the distribution, including agency workers.

What do employers need to do?

Unless employers only receive tips on a very occasional or exceptional basis, they will need a written policy in place relating to the collection and distribution of tips.

They will also need to decide on their chosen method of tip distribution. How employers distribute is up to them, as long as it is fair. Some employers may choose to allow each individual worker to retain 100% of their tips received, whereas some employers may choose to implement a tronc system. However, using a tronc does not absolve employers of their responsibilities, so they will need to be careful to ensure the use of a tronc system is appropriate and that it is properly and fairly implemented. Employers should consider whether it is appropriate to seek the agreement of their staff as to which system of allocation will be used.

Employers must keep records of the qualifying tips received and how these are distributed. These records must be kept for three years from the date the tip was received and staff may request copies.

It is recommended that regular checks are made to ensure tips are being distributed in line with policies. It is also recommended that policies are regularly reviewed in line with business changes, such as restructurings or redundancies.

Connected obligations

Employers should be mindful of their data protection obligations when sharing records of tips. Employers should not provide details of the specific amounts paid to other workers, nor other people’s personal data, such as their bank details. Instead they should provide the total amount of qualifying tips received and the amount paid to the worker making the request.

Tips do not form any part of the National Minimum Wage. Employers must ensure that workers are paid in line with the National Minimum Wage and National Living Wage requirements regardless of any tips the worker may receive. 

How should an employer deal with complaints relating to tips?

The code of practice states that parties should attempt to resolve issues relating to tips between themselves. It is therefore imperative that any complaints are investigated and dealt with properly, either informally (if appropriate) or under a suitable grievance procedure.  

If the matter cannot be resolved internally, a member of staff may make a claim in the employment tribunal and they may be awarded up to £5,000 to compensate them for any financial losses relating to their employer’s failure(s).

If you have any questions on the fair distribution of tips or need assistance regarding your compliance with the new legislation, please contact a member of our Employment team.

Emma Cocker comments on ageism in the private wealth sector in eprivateclient

Posted on: October 1st, 2024 by Hugh Dineen-Lees

Senior Associate in the Employment team Emma Cocker comments on ageism in the private wealth sector, and how firms should be proactive in tackling this form of discrimination, in eprivateclient.

Emma’s comments were published in eprivateclient, 27 September 2024, and can be found here

“Employing older workers brings tangible benefits. These individuals often possess a depth of experience that younger workers may not, as well as an ability to connect with older clients. This is particularly important as statistics show that older individuals hold the bulk of private wealth within the UK. As such, workplace ageism ought not to be a problem in the private wealth sector, but this is unfortunately not the case. 

“The Equality Act 2010 protects against age discrimination in all aspects of employment including recruitment, terms and conditions, promotions, training and dismissals. Treating a worker less favourably simply because of their age, or in any way connected to their age, is (with very limited exceptions) illegal and should be avoided. Employment Tribunals are quick to root out issues of age discrimination, even in cases where employers attempt to dress up ageism as a legitimate reason for less favourable treatment. Compensation can be high, and cases attract adverse publicity.

“Leaving aside the risks of litigation, firms should be proactive in tackling age discrimination because of the noted benefits of employing older staff. This starts with the recruitment process where “blind recruitment” should be used to eradicate bias based on an applicant’s personal characteristics, including their age. Firms should also use initiatives such as discrimination and diversity training, as well as ensuring workplace policies do not discriminate on the grounds of age. Employee rewards ought to be based on performance and not length of service, and assumptions regarding “slowing down”, or older people being more likely to accept redundancies, should also be avoided.”

Employment law insight: Mohammed Al Fayed allegations and an employer’s duty to prevent sexual harassment at work

Posted on: September 20th, 2024 by Hugh Dineen-Lees

A recent BBC article highlighted that more than 20 female former employees have come forward to report their experience of sexual assault (and in five cases, rape) whilst working at Harrods.

This is unfortunately the latest in a series of high-profile sexual harassment cases in the workplace. The effect of such behaviour is extremely damaging, not least because of the risk of costly employment tribunal claims against employers, but also because the significant reputational damage inflicted affects the ability of organisations to attract and retain staff, as well as potentially losing them valuable customers. Cases of sexual misconduct undoubtedly affect businesses’ “bottom line”.

What is the law on preventing sexual harassment in the workplace?

While these latest allegations relate to cases of sexual assault and rape, these cases are thankfully rare. What is much less rare is allegations of sexual harassment at work.

Sexual harassment is unwanted conduct of a sexual nature which has the purpose or effect of either violating the person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.

The scope is broad and includes a wide range of behaviours. As the effect of sexual harassment is viewed subjectively (i.e. through the eyes of the victim) it is not uncommon for accused individuals to claim their behaviour was “banter” or, “a compliment” when it was, in fact, sexual harassment.

As well as the accused individual’s responsibility for sexual harassment, employers may also be responsible (or “vicariously liable”) for the conduct of their employees (and in some cases, other third parties such as customers). This can be the case even where they did not condone, or even know, the conduct had occurred.

Legislation will shortly come into force which increases the burden on employers to prevent sexual harassment in the workplace, making it even more important that employers are aware of, and acting in line with, their duties.   

The new duty

The Worker Protection (Amendment of Equality Act 2010) Act 2023 is due to come into force on the 26 October 2024 and creates an anticipatory duty on the employer to take reasonable steps to actively prevent the sexual harassment of their employees; not just to investigate them if they arise.

This is a law which was passed by the last government, but the current government is considering further extending this duty to require employers to take ‘all’ reasonable steps, rather than the reasonable steps that will be required from 26 October 2024.

What should employers do to comply with their new duties?

Having clear sexual harassment policies and procedures, providing anti-sexual harassment training and encouraging a “speak-up” culture are all critical steps for employers. Taking time to consider where the risks lie in a specific working environment, as well as the sector in which the organisation operates will help determine what further action needs to be taken. All of the above should be regularly reviewed and monitored.

Supporting HR managers in dealing with sexual harassment claims is also crucial. They are likely to be the first employee in a senior leadership position to whom such claims are reported and they must be well equipped to deal with allegations appropriately to avoid further potential damage to the organisation.  

What should a business do if a claim of sexual harassment is raised at work?

Any allegations should be properly investigated under an anti-harassment policy or grievance policy and appropriate action should be taken, based on the conduct identified.

Employers that are regulated, such as financial services organisations regulated by the FCA and/or PRA must remember that a failure to investigate and resolve such allegations could lead to regulatory investigations, as well as possible enforcement action.

The behaviour did not take place at their place of work – does this matter?

No. Employers may be liable for sexual harassment committed by their employees ‘in the course of employment’, meaning any place the employee is working, not just their regular place of work. Liability can also attach to acts committed when employees are not working but they are somewhere connected with work. This could include, for example, social drinks after work and Christmas parties.

Creating a culture of acceptable behaviour

It is important that employers create a workplace culture that minimises the risk of sexual harassment. Sometimes sexual harassment can stem from other inappropriate behaviours not being properly investigated and addressed. Turning a blind eye to these behaviours can fail to set the tone as to what is appropriate and inappropriate in the workplace, leading to costly claims against employers.  

If you have any questions on the new duty to prevent sexual harassment, or how to investigate allegations of sexual harassment, or if you require workplace training, please contact a member of our employment team.

Tesco loses its Supreme Court ‘fire and rehire’ fight

Posted on: September 19th, 2024 by Hugh Dineen-Lees

The practice of terminating an individual’s employment to re-employ them on new terms (known as ‘fire and re-hire’) has always been controversial. This is because it is typically used to implement unfavourable changes to employees’ contracts.

The Government is tightening up on such practices, and in July, issued a fire and re-hire code of practice which made it clear fire and re-hire should only be used in very limited circumstances. Now, the Supreme Court has granted an injunction to prevent Tesco from firing and re-engaging employees on lower compensation.

In 2007, Tesco inserted a clause into its contracts which provided for retention payment awards as an incentive for employees to relocate to other sites following the closure of distribution centres. In 2021, Tesco attempted to remove this clause and threatened anyone who did not agree with the termination of their employment. Consequently, the Union of Shop, Distributive and Allied Workers (USDAW) brought action against Tesco seeking an injunction to prevent the termination of the contracts, arguing the 2007 change was intended to be permanent. USDAW won an injunction in 2022 which stopped Tesco from carrying out its plans, but Tesco got that ruling overturned on appeal.

On 12 September 2024, the Supreme Court reversed that decision. Commenting that the individuals had been induced to make significant and permanent changes to their lives by relocating, the Judges made it clear that any limitation to the change should have been negotiated in 2007.

Employers may be concerned that this decision significantly narrows when fire and re-hire can be used. They may also be concerned that it sets a precedent for injunctive relief to be granted to protect employees from dismissal, which is rare. However, cases like these are fact-specific: the injunction was granted in a case where the affected individuals made a life-changing move in return for compensation during the performance of the contract – and it was not specified at the relevant time that the additional compensation could be taken away.

The Government has previously indicated that it intends to ban fire and re-hire, and following this judgment, the Department for Business and Trade has stated that new legislation shall be brought in soon. In the meantime, there are occasions where the use of fire and re-hire could still be appropriate, particularly if the alternatives are for employees to be retained on terms which significantly damage the business, or risks mass redundancies, or even for a business to cease trading entirely. The Tesco matter was different and was a situation which was said to be “unrealistic” and “flouting industrial common sense”.  However, it does highlight how careful employers must be when agreeing contractual variations, and, in particular, how employers ought to carefully consider the duration of any proposed changes.

If you have any question about the drafting or varying of employment terms and any related issues, please contact a member of our Employment team.

Becci Collins comments on Labour’s ‘Plan to Make Work Pay’ in People Management

Posted on: September 12th, 2024 by Hugh Dineen-Lees

Solicitor Becci Collins comments on the government’s proposed reforms surrounding ‘fire and rehire’ practices, redundancy rights and TUPE considerations, in People Management magazine.

Becci’s comments were published in People Management, 11 September 2024, and can be found here.

“The government has not implemented a complete ban on fire and rehire, as it originally pledged to do. Instead, it has made it clear that terminating employment before re-engaging an individual on different terms is the last resort. This requires an employer to ensure that it has taken all reasonable alternatives and reached an agreed outcome with affected individuals.

“A failure to comply with this requirement could provide grounds for unfair dismissal claims, which may cause reputational damage as well as adverse implications on employee relations. A further extension to a complete ban would put employers in a very uncomfortable position should the business get into financial difficulty. Instead of being able to retain its workforce on different terms, the business would be forced to consider redundancy in order to ensure its survival.

“Whilst the government has stated that it intends to strengthen TUPE protections, further detail has yet to be provided. The previous Conservative government confirmed that only employees are protected by the TUPE provision in response to case law which cast doubt on this. The current Labour government has indicated that it will take the opposite approach and extend the protection to those currently classed as workers by creating a single worker status, encompassing the current status of employee and worker.

“Extending the number of individuals protected by TUPE would increase the amount of work – and therefore time and costs – for employers, which may act as a deterrent. It may also increase the responsibilities a business assumes through the TUPE process, as any liabilities (potentially including litigation), may be transferred, although contractual indemnities could prevent this.

“The Labour government has proposed extending the requirement on when a collection consultation is required in redundancy to instances where 20 people will be impacted across the business, not just one workplace. This proposal would widen the number of individuals entitled to collective consultation.

“Further, earlier in the year, redundancy protection was expanded for those returning from maternity or adoption leave. They are to be offered suitable alternative employment ahead of other individuals at risk. However, where shared parental leave is taken, individuals are only protected for the period of their maternity or adoption leave. We may see the new government extend protections to cover this additional period of leave.

“Employers will need to ensure that their policies reflect these extended protections and be aware that failure to account for the expansion may result in a costly unfair dismissal and/or discrimination claim.”

Emma Cocker comments on Employment Tribunals and the Employment Bill in City A.M.

Posted on: August 29th, 2024 by Hugh Dineen-Lees

With the upcoming Employment Bill on the horizon, Senior Associate in the Employment team Emma Cocker comments on whether current Employment Tribunals will be fit for purpose, in City A.M.

Emma’s comments were published in City A.M., 28 August 2024, and can be found here.

“The government’s intention to significantly expand employment rights will have a monumental effect on employment tribunals. We already know that tribunal claims are up by around 7% compared with 2022/23 with over 650,000 open cases. Giving employees protection against unfair dismissal from day one of their employment along with the extension of time limits for bringing claims from three to six months is likely to significantly effect the Tribunal’s ability to deal with cases in a timely manner. 

“Worryingly, parties are already experiencing significant delays, with some cases taking over 18 months to reach a final hearing. Complex discrimination claims face the longest waits, with Tribunals struggling to find capacity for hearings that are often listed for a minimum of seven days.  

“The former Conservative government had consulted on the reintroduction of Tribunal fees; however these were nominal and would be unlikely to make any difference in combating delays. The current government’s main solution appears to be the digitisation of claims, but it is unclear what further improvements are proposed beyond the existing online platform for submitting claims and liaising with the Tribunal. 

“Employment Tribunals could become overwhelmed with increased claims on top of already long delays, meaning both employers and employees may face longer waits to resolve workplace disputes.”

If you would like any advice on the upcoming Employment Bill or Employment Tribunals, please contact a member of our employment team.

Regulatory update on the use of non-disclosure agreements

Posted on: August 23rd, 2024 by Hugh Dineen-Lees

On 6 August 2024, the Solicitors Regulation Authority (SRA) updated its warning notice to solicitors on the use of non-disclosure agreements (NDAs).  In essence, an NDA is any agreement/contract or clause within a wider agreement/contract under which is it agreed that certain information will be kept confidential between the parties.

In the employment law context, NDAs are typically found in settlement agreements. These are used by employers to settle employment tribunal claims, either after proceedings have been initiated, or as a way of securing the employee’s agreement not to bring claims in the future.

The SRA first published the warning notice in March 2018, following concerns arising from the #MeToo movement that settlement agreements containing NDAs were being used to prevent the reporting of misconduct to the relevant criminal and/or regulatory authorities, in particular, sexual misconduct.

The warning notice was revised in November 2020 to make clear that inserting other types of clauses which discouraged the reporting of incidents could also amount to a breach of the SRA’s regulatory Principles and Code of Conduct. Now the SRA has further updated the warning notice, which although aimed at solicitors, is useful for employers to be aware of when they are thinking of offering an individual a settlement agreement containing an NDA.

In particular, employers ought to consider:

Is an NDA required? The SRA states NDAs “should not be used routinely” and ACAS guidance highlights that careful consideration should be given to the need for NDAs on a case-by-case basis. Only use NDAs when they are genuinely needed. Be especially careful in cases where the employee has raised complaints that could constitute criminal conduct, or conduct warranting regulatory investigation and/or action. Template or ‘off the shelf’  agreements are not likely to be appropriate, so take specific advice in each and every case.

Time limits: Solicitors should challenge unreasonable time limits proposed by the opponent to ensure the individual’s solicitor has sufficient time to take instructions, advise and respond. Be wary, as an employer, of setting unreasonable deadlines and always ensure the individual has enough time to take proper legal advice.

Funding: Consider whether the typical contribution of £500 plus towards the employee’s legal fees is fair and reasonable in the circumstances, particularly if the employee has raised serious allegations that could constitute criminal conduct, or conduct warranting regulatory investigation and/or action.

Please contact our specialist employment team if you need further guidance on employment tribunal claims or settlement agreements and non-disclosure agreements.