UK Employment Law Coffee Break: Sexual harassment, Employment Rights Bill and suitable alternative employment on redundancy

New preventative duty on sexual harassment is in force

The new statutory duty to take reasonable steps to prevent sexual harassment (the preventative duty) came into force on 26 October 2024.

As previously reported, this new legal obligation is supported by updated technical guidance from the Equality and Human Rights Commission on sexual harassment and harassment at work and an eight step guide to preventing sexual harassment at work. Acas has also now published its updated guidance reflecting the new duty.

The whole thrust of the new right is for employers to "anticipate scenarios when its workers may be subject to sexual harassment in the course of employment and take action to prevent such harassment taking place", the duty is "designed to transform workplace cultures by requiring employers to take positive and proactive reasonable steps to prevent sexual harassment of their workers".

A priority for employers will now be to ensure that an appropriate risk assessment is undertaken to understand the risk of sexual harassment occurring within the course of employment – whether that be in the workplace (which will cover hybrid working scenarios) or at work-related activities, such as conferences, team socials, work parties – and also by third parties. The EHRC guidance also recommends that employers produce an action plan that sets out what preventative steps they will take to address any identified risks and how that will be monitored (and consider publishing that plan to workers and the public), as well as appointing a designated lead to take responsibility for implementation of the action plan and compliance with the preventative duty.

Organisations should expect to see greater scrutiny around the steps they are taking to address harassment and remember that while the new preventative duty only applies to sexual harassment, an employer also has a wider liability for specific acts of harassment related to a protected characteristic (age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation) unless it can demonstrate that it has taken all reasonable steps to prevent the act in question.  

This is an area where further legal developments are in the pipeline. The new Employment Rights Bill provides that the new preventative duty will be amended to provide for an employer to have to take "all" reasonable steps to comply with it.

Regulations may also be introduced specifying what may be "reasonable steps" for these purposes including, among others, carrying out assessments of a specified description; publishing plans or policies of a specified description; steps relating to the reporting of sexual harassment; and steps relating to the handling of complaints. The government's impact assessment on this aspect of the bill indicates that the government may be proposing that employers with at least 250 employees are required to produce a sexual harassment action plan published via the existing gender pay gap reporting service. However, it stresses that the specific steps employers will be required to take will be subject to consultation prior to regulations being made.

The bill also introduces liability for third-party harassment extending to all the protected characteristics currently covered by harassment in the course of employment, unless an employer has taken all reasonable steps to prevent the third party from harassing them and amends the existing statutory provisions on whistleblowing to explicitly include sexual harassment as a relevant failure in relation to disclosures qualifying for protection.

Our specialist lawyers are supporting employers in preparing for the new duty, including assessing risks, advising on appropriate measures for implementation and providing training tailored for their organisation for HR, management and staff on the new duty and sexual harassment more widely. If you would like to discuss the new duty and how we can help you in the steps to take towards compliance, please contact your usual Osborne Clarke contact.

Consultations published on the Employment Rights Bill and new regulations on 'fire and rehire'

Following the introduction of the Employment Rights Bill on 10 October 2024, the government has now published ten factsheets summarising key provisions of the bill and four consultations covering:

• Increasing the maximum protective award that can be made by a tribunal for a failure to comply with the obligations to collectively consult under the Trade Union and Labour Relations (Consolidation) Act 1992 and introducing a right for employees to apply to a tribunal for interim relief where they have a claim for unfair dismissal in a fire and rehire situation (closing 2 December).
• For statutory sick pay what percentage of an employee's normal weekly earnings which should be paid as statutory sick pay for those falling below the lower earnings limit requirement (closing 4 December). 
• How the guaranteed hours provisions in the Employment Rights Bill should be extended to agency workers around the division of responsibilities between end-users and employment agencies (closing 2 December).
• Creating a modern framework for industrial relations (closing 2 December).

These consultations highlight further ones that employers can expect down the line on zero-hours provisions, strengthening the collective redundancy framework (including increasing the minimum consultation period where an employer is proposing to dismiss 100 or more employees from 45 to 90 days) and further proposals to modernise trade union law including the recognition process, union access rights and stronger protections for union representatives and their members. 

The government has also issued a general call for evidence on the Employment Rights Bill. The House of Commons Public Bill Committee will scrutinise the bill line by line and is scheduled to report by 21 January 2025. However, it may finish its review earlier.

New regulations providing for uplift to protective award

New draft regulations have also been laid before Parliament which would enable employment tribunals to adjust a protective award for breach of collective redundancy consultation obligations by up to 25% where an employer has failed to comply the Code of Practice on dismissal and re-engagement which came into force on 18 July 2024. The government is proposing that these new regulations, if passed, come into force on 20 January 2025. Similar regulations were introduced prior to the general election by the previous government (see here). 

EAT rules on redundancy during maternity leave and offer of suitable alternative employment  

Employees who are pregnant or have given birth have additional statutory protection on redundancy, giving them a right to be offered a suitable alternative vacancy (where one is available) before their existing contract ends in priority to other redundant employees (who do not benefit from that protection).

If an employer does not comply with this requirement, the dismissal will be automatically unfair. While historically this priority protection has only applied during an employee's maternity leave, since 6 April 2024 it has been extended and now essentially applies from the date of notification of pregnancy and ends 18 months after birth. The priority protection also applies to employees on adoption and shared parental leave and for a protected period following their return to work. 

The Employment Appeal Tribunal (EAT) has provided helpful confirmation on how this priority protection operates.

As part of a restructuring exercise, an employer proposed to reduce 21 team leader positions to 16. It carried out a redundancy selection exercise and the claimant, who was on maternity leave, was selected for redundancy and dismissed. She argued that, given her priority protection, she should have been offered one of the remaining 16 roles. The tribunal agreed and upheld her claim of automatic unfair dismissal. 

The EAT overturned this decision. The priority protection only applies to an offer of suitable alternative employment applies where it is no longer practicable to continue to employ an employee under their existing employment contract by reason of redundancy and "there is a suitable available vacancy". However, this was not a case where all the 21 existing roles had ceased to exist and new, albeit fewer, amalgamated roles were created – "no one was competing for his or her own job" as the 16 remaining posts pre-existed and were not new vacancies. The employer had rightly carried out a process of selection "of the people who will remain in the reduced number of generic posts" and it was only once this process was complete and an employee's position is redundant that the priority protection arises. 

What does this mean for employers?

Understanding when priority protection is applicable can be difficult.

The EAT's decision here that the priority protection only applies once there is a redundancy (as opposed to during any selection process) and only relates to any vacancies is in line with previous cases, including an earlier EAT decision in Sefton. In contrast to the above case, in Sefton an employer decided to remove two roles and instead create a single amalgamated role. It was no longer therefore reasonably practicable for the employer to continue to employ the two existing incumbents under their existing employment contracts and they were therefore redundant. However, as one of the employees was on maternity leave, the employer was legally required to offer the new amalgamated role to that employee in priority to the other existing incumbent without requiring her to undergo a competitive interview for the post as it was found to be suitable alternative employment. 

Given the sensitivities in such situations and the heighted risk of employee relations issues and legal claims where an employee is made redundant in such circumstances, it will be important for employers to satisfy themselves that the situation is a genuine redundancy and consider carefully whether or not a vacancy is suitable alternative employment.

Another recent EAT decision has stressed the importance of tribunals determining whether a dismissal satisfies the statutory test for redundancy before concluding that it is "a sham" based on a matter of impression from other factors such as an employee's protected characteristic. Employers should keep a paper trail of their considerations in determining that the reason (or main reason) for any dismissals is redundancy, bearing in mind that this will be subject to disclosure in any legal proceedings.

The extension to the scope of the priority protection in April 2024 means that employers should now anticipate an increasing number of scenarios where there are more employees qualifying for the protection than there are suitable alternative vacancies. There is no clear authority on dealing with such requests and, in practice, employers will need to undertake some form of selection process – being careful not to unintentionally discriminate in that process.

Further legislative developments are expected, with the new Employment Rights Bill strengthening the protection against dismissal for pregnant women and those returning from maternity leave and with the government intending to make "a dismissal" unlawful within six months of a return to work except for in specific circumstances.