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With the Euros kicking off on 14 June, people all over the UK and Europe are discussing strikers. While most in England are debating whether it should be Ivan Toney or Ollie Watkins as first-choice deputy for Harry Kane, in the employment law world we have been focusing on the strikers at the heart of an important new Supreme Court decision in Secretary of State for Business and Trade v Mercer.

In Mercer, the Supreme Court was asked to consider whether an employee is protected from retaliation if their employer suspends or disciplines them in an effort to deter them from going on strike, and whether or not section 146 TULRCA 1992 really protects employers rather than employees.Continue Reading Striker! Does UK law adequately protect an employee’s right to strike?

How has the Bill changed?

The House of Commons have approved the Worker Protection (Amendment of Equality Act 2010) Bill (the Bill), albeit in a form that is significantly less onerous than had been originally proposed.

As originally proposed, the Bill would have:

  1. imposed liabilities on employers for failure to take “all reasonable steps” to protect their staff from third party harassment (essentially seeking to re-create protections that previously existed under the Equality Act 2010, which were removed by the Enterprise and Regulatory Reform Act 2003); and
  2. created a new legal duty for employers to take “all reasonable steps” to prevent sexual harassment of staff during the course of employment. This duty was stated to be enforceable by the Equalities and Human Rights Commission.

In the version of the Bill that was approved, item one above was removed in its entirety. Item two was recast to require the employer to take “reasonable steps”, rather than “all reasonable steps” to prevent the sexual harassment of their staff.

The net result is that rather than establishing a duty for employers to protect their employees against third party harassment on the basis of any protected characteristic, the Bill now only establishes a duty in relation to “sexual harassment”, as defined under the Equality Act 2010.Continue Reading Sexual harassment in the workplace: Update on the Worker Protection (amendment of Equality Act 2010) Bill in the United Kingdom

Employers will be liable for the discriminatory acts of their employees in the course of employment unless they have taken ‘all reasonable steps’ to prevent the wrongdoing.

Whether all reasonable steps have been taken will be fact-specific and the hurdle is a high one; the Equality and Human Rights Commission (EHRC) stated in its Statutory…

The UK government has announced that it will support the Worker Protection (Amendment of Equality Act 2010) Bill (the Bill), which represents one of the most notable changes to UK workplace discrimination law since the 2010 Equality Act. The Bill imposes a proactive duty on employers to take all reasonable steps to prevent the harassment of its employees, including by third parties, with a compensation uplift where they fail to do so.

Why the Bill is being introduced

In 2018, the Women and Equalities Select Committee (WESC) published a damning report on the prevailing extent of sexual harassment in the workplace. This report, along with campaigns by the Fawcett Society and other groups, led to the UK government undertaking its own consultation from 11 July to 2 October 2019, which found that 54% of respondents had experienced harassment at work.

High-levels of harassment, and notably sexual harassment, in the workplace has been common place for years. The 2022 Gender Equality in the Workplace report by Randstad found that 72% of the 6,000 women polled had experienced or witnessed harassing behaviour by male colleagues, and that 67% of them had experienced some form of gender discrimination. 32% of the women polled felt that their careers had been affected by sexual harassment.

Studies have shown that harassment is not limited to male colleagues, but is also inflicted by third parties. A 2018 report by the TUC found that 36% of 18-34 year olds who have experienced some form of workplace harassment said that the perpetrator was a third party.Continue Reading Tracking the progress of the Worker Protection (Amendment of Equality Act 2010) Bill

The outcome of Swiss Re Corporate Solutions v Sommer [2022] EAT 78, (which we reported in this month’s newsletter) provides an interesting illustration of the scope of the ‘without prejudice’ privilege rules in the context of settling an employment tribunal claim.

The ‘without prejudice’ rule (the “Rule”) allows parties to have a full and frank exchange of views about a dispute or litigation, and even to make concessions about weaknesses in their own case, when discussing settlement. The parties can do this safe in the knowledge that anything said or done will be “without prejudice” and therefore cannot be relied on and would not be disclosable if settlement is not achieved and the matter goes to court/tribunal. The courts recognise that without prejudice privilege is important for the efficient operation of the legal system, as it facilitates parties to resolving disputes outside of court/tribunal.

There are only a small number of narrow exceptions to this Rule and the Sommer case is a good illustration of that. One exception is that the Rule cannot be abused or weaponised as a disguise or excuse for “perjury, blackmail or other unambiguous impropriety”. Case law has established that this ‘unambiguous impropriety’ exception should be construed narrowly – it should only be applied in the clearest cases of abuse. In 2021 the Court of Appeal ruled it would only be lost in “truly exceptional” circumstances.Continue Reading Sailing close to the wind: ‘without prejudice’ and the thresholds of ‘unambiguous impropriety’

The UK government’s long awaited response to its 2018 consultation on sexual harassment in the workplace has now been published. In this update, we look at the findings made and what may be coming down the line for employers as a result.

  1. Introduction

The 2018 Women and Equalities Select Committee (WESC) report on sexual harassment in the workplace revealed clearly that it was a persistent and important issue, despite the existence of current legal protections. As a result, the government committed to consult on the issue and have produced an official response to the 2018 report.

The government undertook a consultation from 11 July to 2 October 2019, on sexual harassment in the workplace. This consultation took a two-part form, consisting of: 1) a technical consultation with employers on the functionality of the legal framework designed to prevent sexual harassment, and 2) a public questionnaire aimed at gathering insight into the experiences of individuals.

The consultation was designed to explore:

  1. The evidence for the introduction of a mandatory duty on employers to protect workers from harassment and victimization in the workplace
  2. How best to strengthen and clarify the laws in relation to third-party harassment
  3. Whether interns are adequately protected by the Equality Act 2010 (the Act) and the evidence for extending the protections of the Act to volunteers
  4. The views of stakeholders on extending employment tribunal time limits in the Act from 3 months.

Continue Reading Overview of the governments’ ‘Consultation on sexual harassment in the workplace: government response’

COVID-19 has thrown up numerous and multi-varied concerns for employers and employees alike. One notable area of consideration and concern has been the delicate and difficult issue of dismissals related to health and safety reasons. A recent case has shed more light on how Tribunals may deal with the pandemic-related workplace issue of employees’ refusal to work on health and safety grounds, due to fear of COVID-19.

Rodgers v Leeds Laser Cutting Limited ET/1803829/2020

Case Facts

This case considered the availability and legitimacy of fears over exposure to/contracting COVID-19 at work acting as grounds for statutory protection against unfair dismissal.

The Claimant refused to come into work after another colleague began to show symptoms of COVID‑19, and self-isolated. He informed the Respondent that he would not return to work until lockdown eased, as he was concerned for his very young child, who has sickle cell disease. After a month of refusing to attend work, the Respondent was dismissed.

The Claimant did not have sufficient service to claim ordinary unfair dismissal, so instead claimed that he had been automatically unfairly dismissed for exercising his rights to leave the workplace and take steps to protect himself where he reasonably believed there was a serious and imminent danger, under sections 100(1)(d) and (e) of the Employment Rights Act 1996.
Continue Reading COVID-19, health and safety and dismissal