UK Employment Law Coffee Break: Employment Rights Bill, sex-related harassment and the Platform Workers Directive

Employment Rights Bill

Described as the "biggest upgrade to workers' rights in a generation", last week saw the publication of the Employment Rights Bill. The government also committed in its "Next Steps" paper to other measures which it will progress in parallel with the bill, including new laws around ethnicity and disability pay gap reporting and extending equal pay protection – please read more. Our workforce solutions team have also looked at what the bill means for organisations operating in the contingent workforce sector.

The government has indicated that it will be publishing a number of consultations over the coming months and while it is anticipated that many of the measures will not come into force until 2026, employers should start considering the implications of the bill for their organisation and what actions are needed.

EAT upholds tribunal decision on sex-related harassment where claimant was called 'bald'

As we have previously reported, new legal obligations on employers to take reasonable steps to prevent sexual harassment come into force on 26 October 2024. This sits alongside existing legal obligations protecting against harassment in the Equality Act 2010 that cover both an employer's liability for sexual harassment and also liability for "sex-related harassment". Harassment related to sex is when someone experiences unwanted behaviour which is "related to" them being a man or a woman, whereas sexual harassment is unwanted behaviour of a sexual nature.

A recent EAT decision looks at conduct which was under an employer's liability for sex-related harassment and illustrates how this is distinct from sexual harassment in the workplace.

The Employment Appeal tribunal has upheld the decision of the Employment Tribunal that an electrician called a "bald ***t" during heated arguments was harassed on the grounds of his sex. The claimant was employed as an electrician and was dismissed from his employment without notice by the respondent, a small family business employing around 30 employees who are predominantly, if not exclusively male. It was recognised that "industrial language" is commonplace upon the shop floor, but the Employment Tribunal found that there is a connection between the word "bald" on the one hand and the protected characteristic of sex on the other. 

The employer appealed, arguing that "if it were the case that 99 per cent of those who were bald were male, the existence of the one percent who were female would mean that the act of which complaint was made could not be related to sex". The employer argued that both men and women can be bald citing "women with alopecia, those receiving chemotherapy and others who shave their heads for a variety of religious or cultural reasons". The Employment Tribunal had "broadened the meaning of the words 'related to [sex]' to an extent whereby the impact of the act did not have to be related to sex; if a majority of a particular sex has the characteristic to which the comment alludes, that would suffice. Had that been Parliament’s intention, that would have been made clear". 

The Employment Appeal Tribunal rejected the employer's submission that "in order for the unwanted conduct to relate to sex, it must relate to a matter which is both inherent in the gender in question and in no-one of the opposite gender". This would run contrary to the purpose of the Equality Act 210. In concluding, rightly, that baldness is more prevalent in men, the tribunal was not importing questions of disparate adverse impact into its reasoning; rather it was recognising the fact that the characteristic by reference to which the appellant had chosen to abuse the claimant was more prevalent in people of the claimant’s gender, more likely to be directed at such people, and, as such, inherently related to sex. 

As there is no standalone claim for bullying, employees subjected to insults must bring their complaints on the grounds of harassment on the basis of a protected characteristic (the characteristic in this case being sex) or as a constructive unfair dismissal complaint. Here the Employment Tribunal had been satisfied that the conduct towards the claimant was unwelcome and uninvited, and therefore was unwanted, and that the words were uttered with the purpose of violating the claimant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him: the conduct could therefore be considered as harassment. The issue was whether there was a link between the unwanted harassing words on the one hand and the protected characteristic of sex on the other. 

Employers must ensure they have clear policies setting out what is acceptable conduct in the workplace and support this with training emphasising how discrimination and harassment risks can arise as a result of workplace banter and name calling. Calling someone bald is perhaps not obviously harassment related to sex in many employees' minds, so it will be important to give clear examples to ensure employees understand the different ways in which discrimination and harassment can arise. Offensive jokes and language are best avoided in all workplaces, but in settings where it is more commonplace, it is perhaps particularly important to educate employees on the parameters of what is acceptable and what is not. 

The EHRC has revised its technical guidance to assist employers in complying with the new legal obligation to take reasonable steps to prevent sexual harassment. This includes conducting a risk assessment and producing an action plan of measures which need to be taken, including to protect against the risk of any potential third party sexual harassment. 

It would be prudent for employers to address where other risks of harassment may exist too, including sex-related harassment. The Equality Act 2010 provides a defence for employers against harassment claims brought by an individual where the employer has taken "all reasonable steps" to prevent the harassment in question. The Employment Rights Bill published last week also proposes to extend employer liability for harassment to third party harassment, so this is an area where employers should expect increased scrutiny and risk of claims. 

We can help with training and reviews to address the risk of harassment, including sexual harassment, in your business; please get in touch with your usual Osborne Clarke contact. 

Platform Workers Directive adopted by EU Council 

The EU's Platform Workers Directive (PWD) has this week been formally adopted by the European Council. The PWD aims to improve working conditions for people working in digital labour platforms across the EU. A key point is that the definition of platform worker is wide enough to capture many workers operating through traditional staffing companies which now use any material element of automated matching. 

The PWD provides for Member States to establish a legal presumption of employment in their legal systems triggered by certain facts. It makes the use of algorithms in human resources management more transparent, ensuring that automated systems are monitored by qualified staff and that workers have the right to contest automated decisions. 

Now the PWD has now been formally adopted by the European Parliament and Council, Member States have two years from publication to implement the directive into national legislation (though many will do so more quickly, with some already having laws covering most of what the directive covers). It will be interesting to see whether non-EU countries adopt similar measures (perhaps the UK under the new Labour government, which is considering introducing a statutory definition of self-employment).

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