Key employment law updates | July 2024

Welcome to our monthly update, where we share upcoming changes to employment law.

Consultation: technical guidance on sexual harassment and harassment at work

On 26 October 2024 the new Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force. The Act introduces a new positive legal obligation on employers to take reasonable steps to protect their workers from sexual harassment.

If an employer breaches the preventative duty, the Equality and Human Rights Commission (EHRC) will have the power to take enforcement action against the employer. Employment tribunals will also have the power to increase compensation for sexual harassment by up to 25%.

The guidance has now been updated to include clarity on the new "preventative duty" for employers under the new legislation.

• Employers will need to anticipate scenarios when workers may be subject to sexual harassment in the course of employment and take action to prevent it. 
• The preventative duty also means that, if sexual harassment has taken place, the employer should take action to stop it from happening again.

Sexual harassment is defined as unwanted conduct of a sexual nature which has the purpose or effect of:

• Violating a worker’s dignity
• Creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker

Sexual harassment of a worker can be committed by:

• Another worker
• An agent acting on behalf of the employer
• A third party

This suggests that the EHRC will expect employers to treat sexual harassment by third parties equally as seriously as harassment within the workplace.

Implications on employers where there is harassment of third parties

Harassment by third parties is not currently covered by the law, so many employers may currently pay less attention to this than to harassment by colleagues. However, the EHRC guidance (paragraph 3.23) refers to the preventative duty applying to actions in relation to employees and third parties. Therefore, the EHRC will be able to enforce this, possibly leading to reputational damage if investigations are carried out regarding third party harassment.

What actions should employers take?

According to the guidance, all employers should as a minimum take the following steps:

• Consider the risks of sexual harassment occurring in the course of employment.
• Consider what steps it could take to reduce those risks and prevent sexual harassment of their workers.
• Consider which of those steps it would be reasonable for it to take.
• Implement those reasonable steps.

In practice, this will involve:

1. In depth training aimed at senior leadership, supervisors and managers which can be passed down to all employees in a digestible way.
2. Clear reporting systems and guidance as to how to report sexual harassment.
3. Updates to bullying and harassment at work policies – perhaps creating standalone anti-sexual harassment policies.
4. Refresher training and online tests to ensure the above is absorbed regularly by the workforce.

ACAS publishes annual report for 2023 to 2024

Key facts and figures include highlighted in this year’s report include:

• 618 collective conciliations (between employers and groups of workers), a slight reduction from 621 in the previous 12 months, with a 94% settlement rate. Pay was the leading cause of the disputes.
• 104,884 early conciliation notifications (down from 105,754 in the previous year).
• 33,500 individual conciliations with 72% of disputes resolved before an employment tribunal application.
• 39% of individual conciliation cases settled at the Early Conciliation (EC) stage.
• wages were the top cause of conflict, followed by unfair dismissal and disability discrimination.

Statutory Code of Practice on Dismissal and Re-engagement published

On 18 July 2024, the government published the statutory Code of Practice on Dismissal and Re-engagement (Code). The Code aims to provide practical guidance to employers, employees, and trade unions, to help minimise and resolve conflict around dismissal and re-engagement.

In summary:

• Last resort: employers seeking to change contractual terms and conditions should only use ‘fire and rehire’ as a “last resort”.
• Contact ACAS: the Code encourages employers to contact ACAS for advice before using these tactics.
• Consider notice periods: it may be reasonable to give as much notice of termination “as reasonably practicable”. 
• Feedback and consultation: employers should seek feedback from the workforce once changes have been implemented and commit to reviewing the changes repeatedly.

This final version contains minor updates to headings and some tweaks to phrasing in the previous draft but no substantive changes.

Do note that it remains to be seen whether the new government will seek to amend the Code or withdraw it altogether.