Analysis and commentary by Reed Smith attorneys on developments in employment and labor law
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
On 22 September 2022, the Retained EU Law (Revocation and Reform) Bill 2022-2023 was introduced to the House of Commons, and if passed could give rise to the most significant shake up of employment rights since Brexit.
In summary, the Bill acts to automatically repeal all retained EU law, and remove the principle of the supremacy of EU law, on 31 December 2023 (with the power to extend the revocation date to 23 June 2026) unless specific legislation is introduced to retain it.
What this means for UK employment law is unclear at the moment, but as employment rights relating to the transfer of undertakings (TUPE), annual leave and working time, discrimination and equal pay, and agency, part time and fixed term workers are derived from the EU, the potential for changes in these areas looms large.
We can only speculate at this stage, but there does not seem to be any current indication or suggestion of a radical overhaul of UK employment laws that have their origin in the EU. The UK has a strong track record of high employment standards, on occasion ‘gold-plating’ the minimum criteria required of it by the EU, and although the promised strengthening of rights through the Employment Bill are yet to materialise, the current political landscape is not conducive to a government looking to significantly reduce rights. In addition, trade unions and worker organisations would certainly be likely to vehemently challenge any proposed changes that are to the detriment of workers.Continue Reading What next for EU derived employment rights in the UK?
Welcome to our monthly newsletter, with a summary of the latest news and developments in UK employment law. A PDF version of this newsletter can be accessed here.
This issue will provide recent case law updates, law reform and legislative developments, COVID-19 updates and any other news over recent weeks.
Case law updates
Collective redundancy consultation: The European Court of Justice (ECJ) has ruled on the reference period and threshold numbers required for the Collective Redundancies Directive, and has concluded that where the threshold number of dismissals is met at any point across the relevant reference period, then dismissals occurring both before and after that point are subject to collective consultation rules. This raises questions as to whether section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), which applies the Directive in the UK (and which excludes the need to count employees whose proposed dismissal consultation has started) is compatible with the Directive. In the absence of amendments to TULRCA to clarify the situation, employers planning redundancies will need to have this case in mind, with an understanding of past redundancies as well as anticipated ones, when assessing whether the relevant thresholds for collective consultation are met. [UQ v. Marclean Technologies – NB: no English transcript is currently available]
Discrimination: The Court of Appeal has upheld the ‘cost plus’ basis for seeking to justify indirect discrimination, i.e., cost savings alone cannot be a legitimate aim and will rarely succeed as a defence, although it may be a factor where there is ‘something else’ (including where an employer is subject to financial constraints and is required to reduce its costs). Although not changing established principles, this case acts as a reminder that cost in itself should not be relied upon to rationalise potentially discriminatory practices. Incidentally the court also said that the phrase ‘cost plus’ should be avoided as inelegant. [Heskett v. Secretary of State for Justice]
Health and safety detriments: Following a judicial review, the High Court has held that the UK failed to properly implement the EU Health and Safety Framework Directive in the Employment Rights Act 1996 when only providing protection against detriment on health and safety grounds to employees and not also to workers. The Independent Workers’ Union of Great Britain, which initiated the proceedings, is calling for the government to urgently amend UK legislation to reflect this decision, which would significantly expand the scope of protection at a time when health and safety is particularly pertinent. [HC: IWUGB v. DWP]
Settlement agreement – COT3: Where arguments are being made to set aside a COT3 settlement due to misrepresentation, it is permissible for the tribunal to consider without prejudice communications. [Cole v. Elders Voice]
Summary termination: A firm was entitled to rely on a self-employed stockbroker’s repudiatory breach of contract to summarily terminate their relationship, notwithstanding the firm also having committed a repudiatory breach. [HC: Palmeri v. Charles Stanley & Co]
Tribunal hearings: An appeal against a decision to hold a merits hearing in person rather than remotely during the pandemic has been dismissed, reiterating the strong case management discretion held by judges. [Omooba v. Michael Garrett Associates]
Tribunal procedure – applications to amend pleadings: The Employment Appeals Tribunal has provided detailed guidance on the procedure to be followed when considering applications to amend, including how arguments in support of such an application should be approached, the matters to consider before such an application is made, and the importance of showing the consequences of the amendment being refused. This also reminds us that the tribunal has wide case management powers, and the appellant courts will seldom interfere. [Vaughan v. Modality Partnership]
Whistleblowing: The Court of Appeal has upheld the principle that multiple separate communications taken together could amount to a protected disclosure even if none of them, taken separately, would do so. Whether it is appropriate to take this approach is a matter of common sense and fact dependent, and it is not necessarily an error for the tribunal to fail to consider the composite approach. In the present case, the claimant failed to clarify which of his 37 communications should be grouped together, and the specific protected disclosure which arose from that combination. [Simpson v. Cantor Fitzgerald Europe]Continue Reading UK Employment Law update – December 2020
Last month, the U.S. Equal Employment Opportunity Commission (EEOC) surprisingly announced that it was formally rescinding its longstanding “Policy Statement on Mandatory Binding Arbitration of Employment Discrimination Disputes as a Condition of Employment,” which took the position that mandatory arbitration provisions between employers and employees were contrary to federal antidiscrimination laws.
Originally issued in July 1997, the EEOC’s policy statement expressed its position that mandatory arbitration agreements could have “chilling effects” on charge filing because employees (1) may not be aware of their right to nonetheless file an EEOC charge despite such an agreement; or (2) might otherwise be discouraged from coming to the EEOC when they know that they cannot litigate their claim outside of arbitration. The policy statement also identified overall concerns with arbitration, arguing that, by its nature, arbitration does not allow for development of case law, lacks certain constitutional and procedural safeguards afforded by the federal court system, and includes structural biases against discrimination plaintiffs.Continue Reading EEOC rescinds longstanding policy statement on mandatory binding arbitration
One in two women have been sexually harassed at work according to a survey conducted earlier this year by the Trades Union Congress. It is timely, therefore, that last month saw the launch of a specialist legal advice line for women in England and Wales experiencing sexual harassment at work. The advice line, run by the charity Rights of Women, provides women with advice on identifying sexual harassment, how to bring complaints against employers, the employment tribunal procedure, settlement agreements and nondisclosure agreements. The advice line is the first of its kind in the UK and supporters hope that it will empower women to exercise their legal rights in the workplace. The increased awareness generally of employees’ rights in relation to workplace harassment means that responsible employers should be proactive (rather than reactive) in ensuring that their policies and procedures on this topic are in order.
The launch of the advice line follows the publication earlier this year of a report by the Women and Equalities Committee of the UK parliament on the use of nondisclosure agreements in discrimination cases. The report set out the UK government’s view that confidentiality clauses and nondisclosure agreements should not be used to ‘gag’ and intimidate victims of workplace harassment and/or discrimination. The government intends to legislate on this topic in due course. Other initiatives and proposals include the introduction of a statutory code of practice on sexual harassment and harassment at work. It is clear that sexual harassment is a subject matter which continues to remain a key focus of the government, press and public.Continue Reading Guarding against sexual harassment in the workplace: a robust policy is only the starting point
At the end of 2018, a report from a committee of the UK parliament called on employers and regulators to take a more proactive role in relation to sexual harassment in the workplace, including in relation to the use of confidentiality (non-disclosure) agreements.
In its recent response to that inquiry, the government has set out its ‘measures to prevent the misuse of confidentiality clauses in situations of workplace harassment or discrimination’. This response, together with the launch of its consultation on tackling the wider issue of sexual harassment in the workplace, reflects the UK’s continued focus on the issue of workplace harassment.
Confidentiality clauses tend to be drafted into contracts of employment and settlement agreements. They are provisions in those contracts which seek to prohibit the disclosure of information. While recognising that confidentiality clauses serve as a useful and legitimate mechanism both during the course of and after employment (for example, to prevent employees from sharing company proprietary information with competitors), the UK government has made it clear that they should not be used to ‘gag’ and intimidate victims of workplace harassment and/or discrimination. The government has confirmed that, when parliamentary time allows, it will provide guidance on drafting requirements for confidentiality clauses and legislate to, in summary:
Today is International Women’s Day. What originally started life in 1909 as a single protest organised by the Socialist Party of America in New York, is now a global event with the backing of the United Nations and some of the world’s largest corporations.
The theme of this year’s campaign is #BeBoldForChange. The UK Government’s own flagship equality measure, while a welcome step forward, is, it might be said, neither particularly bold, nor likely to inspire much change.
In just under a month, from 6 April, new regulations on the publication of gender pay gap information will come into force.Continue Reading Gender Pay Gap Reporting – Do we need more?
The UK Government has published new guidance for employers regarding the recruitment and retention of transgender staff. Its stated aim is to make sure employers are equipped to create an inclusive culture for all of their staff and act as a practical guide for managers. The guidance emphasises that there is a strong business case for employers to get this right, as diverse skills are important for employers in all sectors and there is a wealth of research to show that workplaces that are more inclusive are also more productive.
The guidance makes clear that a person can change gender with or without medical intervention and the guidance applies in both scenarios. This reflects discrimination legislation under which there is no requirement for medical diagnosis or treatment in order to gain protection against discrimination on the grounds of gender reassignment.
The guidance sets out good practice in relation to recruitment procedures, application processes, equality monitoring and HR procedures – as well as advice on how organisations can make sure they present themselves as an inclusive employer on their websites and other branding. The guidance also covers advice on inducting and retaining transgender employees, including specific help for employers around supporting a member of staff who is planning to transition.
Some practical tips from this guidance are as follows:Continue Reading Guidance on the Recruitment and Retention of Transgender Staff in the UK
In the case of CHEZ Razpredelenie Bulgaria, the European Court of Justice (“ECJ”) has extended the concept of indirect discrimination to cover those who do not have a protected characteristic, but who are associated with such people. In this case, a Bulgarian shop owner was protected from indirect discrimination affecting members of the Roma …