UK Employment Law Coffee Break | New sexual harassment duty, the government's employment plans, and immigration changes

New sexual harassment duty in force 26 October 2024

The new duty on employers to "take reasonable steps" to prevent sexual harassment of employees in the workplace comes into force on 26 October 2024. This new duty is set out in the Worker Protection (Amendment of the Equality Act 2010) Act 2023.

Under existing legislation, employers do currently have a defence to a sexual harassment claim brought by an employee where they can show that they took all reasonable steps to prevent that harassment; however, in light of continuing concerns "that workplace sexual harassment remains widespread, often goes unreported, and is inadequately addressed by employers", this new legislation places a specific proactive standalone duty on an employer to take reasonable steps as a matter of course. 

The new right will be enforced directly by the Equality and Human Rights Commission (EHRC) –  there is no need for a specific incident to have arisen. In addition, an Employment Tribunal will have power to uplift the compensation on a successful sexual harassment claim where it determines that there has been a failure to comply with the new duty.

Preparing for the new duty

We are currently awaiting the outcome of the Equality and Human Rights Commission consultation on revising its technical guidance on sexual harassment and harassment at work in light of this new duty. The consultation closed on 6 August 2024 so the outcome is expected shortly. Please see here for more on the proposed guidance. 

Employers should ensure they are considering the steps they need to be taking, in light of the proposed revised guidance and the existing Code of Practice and guidance on sexual harassment published by EHRC. Regulated employers should also ensure that they consider separately any specific guidance set out by their regulator.

Examples of measures that could be taken include:

• Communicating the organisation's zero-tolerance approach to sexual harassment and top-down support.
• Reviewing and updating an anti-harassment policy, ensuring that it is communicated to and easily accessible for all workers. It may be appropriate, depending on the organisation, to introduce a separate sexual harassment policy, alongside the more general policy.
• Encouraging the reporting of sexual harassment by providing different methods of doing so; ensure appropriate support is in place for those making a complaint and also for those who are subject to a complaint.
• Putting in place anti-harassment training for all staff which is regularly updated and delivered. Training should cover the behaviour expected, how to raise a complaint and the standards of behaviour expected. Additional training should also be provided for managers on how to handle a complaint relating to other employees and third parties.
• Monitoring the progress of all sexual harassment complaints to ensure they are investigated and resolved; repeat offenders and risk areas should be identified and effective measures put in place to minimise all risks.
• Ensuring policies dealing with harassment are effectively implemented, monitored and reviewed. This could include regular staff surveys to ascertain the extent of any problem or potential risk of sexual harassment, both internally and in relation to third parties with whom employees come into contact in the course of their duties.

This is an area where there may be further legislative developments from the new government.

Webinar and training 

We are hosting a webinar looking specifically at this new preventative duty on Thursday 26 September; we hope you will join us by signing up here.

We also run tailored training for our clients and their HR teams and line managers on addressing harassment and sexual harassment in the workplace; please get in touch with your usual Osborne Clarke contact if you would like to discuss how we can support your organisation in preparing for this new duty.

Legislative update: Do we know any more on Labour's employment law plans?

While we await the Employment Bill – expected October 2024 – speculation continues as to the exact form that the government's proposals, as set out in its paper "Make Work Pay", will be implemented. The proposals and its potential implications for employers are set out in our Insight.

While the media has reported on what form some measures may take, it is important for employers not to take this as a final position and to await the draft legislation and consultations on specific proposals. However, as employers prepare for a new employment law landscape, reports on the form measures may take remain helpful in understanding the possible direction of travel and for managing employee expectations.

Compressed working hours

The media has reported that workers will be able to request to compress their contracted hours into a shorter working week; for full-time workers this would essentially see a five day working week becoming a four day working week on the same pay.

Compressed working hours is a form of flexible working hours. Employees already have a right from day one of employment to make a statutory request to change their hours of work (including requesting compressed hours), which an employer can only reject on specific statutory grounds.  

In Make Work Pay, Labour has promised that flexible working will be a default, except where it is not reasonably feasible. It has acknowledged within Make Work Pay that working arrangements need "to fit the workplace and the type of work"; it does not therefore seem that the government is proposing a one size fits all approach, so this may be a similar right in a different wrapper.

However, the latest reports around compressed hours will put a focus on this working pattern, which can bring challenges for employers in meeting its specific business demands, as well as the potential impact on individual employees working longer shifts. In any event, all employers must continue to take care when considering flexible working proposals not to discriminate.  

Right to disconnect

Labour also promised in Make Work Pay that it would bring in a "right to switch off" following "similar models to those that are already in place in Ireland or Belgium, giving workers and the their employers the opportunity to have constructive conversations and work together on bespoke workplace policies of contractual terms that benefit both parties".

Agan, we are waiting to see the detail of what the government is proposing and indications are that the right to disconnect will be reflected in a code of practice, rather than statutory regulations.

Media reports have suggested that measures may include a right for workers to refuse to take on extra work at the weekends; again, it remains to be see whether this is expressly reflected in any measures adopted (for example, in France, it is illegal for an employer to reprimand a worker for not responding to out-of-hour calls but there is no current right for an employer to insist on an employee taking on additional weekend work where this has not been expressly agreed as part of their contract terms).

The government has confirmed however that the Workers (Predictable Terms and Conditions) Act 2023 will not now come into force (together with the draft Code of Practice on handling requests for predictable terms). Instead, we may now see new proposals included in the forthcoming Employment Bill.

In the briefing note accompanying the King's Speech, it was confirmed that legislation would be proposed "banning exploitative zero-hours contracts" and "ensuring workers have a right to a contract that reflects the number of hours they regularly work".  

Immigration update

Following changes from April 2024 and the change in government, we are providing an Immigration Update webinar on 18 September.

In this one-hour session we will examine the changes that have occurred from April 2024 and their impact, recent changes that the Home Office has planned, and any potential impact of a new government and how these will affect businesses and compliance. Please join us and register.