Category Archives: Insight Article

The festive season is upon us, but businesses may need to rethink their approach to office Christmas parties following the introduction of stricter sexual harassment laws. The updated legislation, which came into effect in October, places a greater duty on employers to take reasonable steps to prevent sexual harassment in the workplace, including at social events.  Failing to do so means employers could face claims for unlimited compensation at the Employment Tribunal.

As a result, the new rules may spell the end of traditional alcohol-fuelled office celebrations, especially in any regulated sector such as financial services.

Head of Employment at RIAA Barker Gillette (UK), Karen Cole, highlights the impact on businesses.

“With increasing legal responsibilities for staff welfare and safety, some companies may feel such events are becoming too risky, too difficult to manage and too costly.”

The new legal duty represents a significant shift in how employers must act to prevent sexual harassment. Previously, employers could defend themselves by demonstrating they had policies and procedures in place and had taken reasonable steps after an incident occurred. Now, businesses must take action to anticipate and prevent sexual harassment, regardless of whether a complaint has been made.

Sexual harassment involves any unwanted sexual behaviour that causes someone to feel intimidated, degraded, humiliated, or offended, regardless of intent. This includes actions like inappropriate remarks about someone’s appearance, offensive jokes, unwelcome questions about personal matters, or non-consensual touching. It also extends to digital communication, such as unwanted messages, emails, or phone calls.

And the stakes are high for employers who fail to meet this new duty. If the Equality and Human Rights Commission (EHRC) receives a report that a business is not taking reasonable preventative steps, it can take enforcement action, even if no specific harassment claim has been made. Where a case proceeds to an employment tribunal, non-compliance could result in an increased compensation award of up to 25%.

In addition, businesses in high-risk industries may need to consider extra safeguards, such as in hospitality, where research has found more than half of women reporting workplace sexual harassment.  Measures could include ensuring employees never work alone, providing additional reporting channels beyond direct supervisors, and treating social events as extensions of the workplace. 

Karen warns:

“Waiting for something to happen is not an option: every employer needs to be able to show they have taken reasonable steps to prevent a situation arising.”

For employers, the message is clear: ignoring these risks could result in significant legal and reputational damage and simply scrapping social events like the Christmas party isn’t a solve-all action.  Instead, businesses need to mitigate risk by implementing clear policies, providing staff training, and promoting a culture of respect and inclusion.

Karen further explains:

“This legislative shift will be a wake-up call for many industries. Yes, festive gatherings can boost morale and foster team cohesion, but they must be carefully planned with an emphasis on safeguarding employee wellbeing.  

This is about looking at the bigger picture and taking action to foster a safe and respectful environment that protects both employees and the business.”

While the current legislation does not specifically allow for claims due to third-party sexual harassment, legal liability may arise if employers fail to act on inappropriate behaviour by clients or suppliers. Looking to the future, the Employment Rights Bill progressing through Parliament will increase employer responsibilities in this area.  

Are you concerned about how the new sexual harassment rules impact your business? Contact Karen Cole, Partner and Head of Employment Law at RIAA Barker Gillette (UK), for expert advice on ensuring compliance and protecting your organisation

Note: This article is not legal advice; it provides information of general interest about current legal issues.

Despite its transformative potential, the Employment Rights Bill 2024 represents a gradual shift rather than an immediate overhaul. Many key reforms have been postponed, diluted, or subject to further consultation. The Bill’s staggered approach offers employers time to adapt, but it signals a new direction for worker rights in the UK.

A gradual introduction of reforms

Fulfilling the government’s election promise to publish the Bill within 100 days of their landslide election victory led to compromises and unfinished business. Several ambitious reforms outlined in the government’s Make Work Pay manifesto, aimed at addressing low pay, job insecurity, and poor working conditions, were scaled back under pressure from employers. Consequently, some of the most impactful provisions remain under consultation or will be phased in over time.

Alongside the Bill, a companion paper, Next Steps, outlines how the government intends to deliver on its election promises not yet covered by the Bill. With implementation unlikely before mid-2025 and some measures delayed until at least 2026, the Bill reassures employers that there will be no sudden shifts in the legal landscape.

Fundamental changes and what’s missing

Unfair dismissal rights from day one 

One of the most anticipated changes is the introduction of unfair dismissal protections from the first day of employment. Currently, employees need two years of continuous service to qualify for such protection. The Bill proposes a statutory probationary period, likely between six and nine months, giving employers time to assess an employee’s suitability. While media reports hint at this timeframe, the final details remain subject to consultation.

Flexible working as a day-one right 

Building on previous legislation, the Bill makes flexible working a statutory right from the first day of employment. Employers can still refuse requests based on the eight permissible business reasons for refusal, but the refusal must be reasonable. This shift is expected to encourage greater workplace flexibility and make it easier for employees to challenge refusals.

Regulation of zero-hours contracts 

While zero-hours contracts remain lawful, the Bill introduces protections for workers. Employers must provide contracts that reflect the average number of hours worked and give reasonable notice of shifts. Workers will also be compensated if shifts are cancelled without adequate notice, offering more security to those in precarious employment.

Protections against ‘fire and rehire’ 

The Bill introduces significant protections against the controversial practice of “fire and rehire,” where employers dismiss staff and offer reemployment on less favourable terms. Under the new law, dismissing an employee for refusing changes to their contract will be considered automatically unfair, closing a loophole that has allowed employers to pressure workers into accepting less favourable conditions.

Strengthened protections for new parents 

Pregnant women and new mothers will enjoy extended protections under the Bill. It will become unlawful to dismiss a woman on maternity leave and for six months after her return, except under specific circumstances. Additionally, paternity and parental leave will become day-one rights, with no qualifying period required, making it easier for employees to access these entitlements.

Reforms still in consultation

Single worker status 

A key reform absent from the Bill is the proposed single-worker status, which aims to simplify employment categories by merging the current distinctions between “worker” and “employee.” This proposal is still under consultation, but its implementation would represent a significant step toward greater clarity in employment rights, especially for the gig economy and freelance workers.

The right to disconnect 

Another highly anticipated reform, the right to disconnect, was left out of the Bill. Designed to protect employees’ time outside of work, particularly in an era of increasing remote work, this provision will be addressed through a forthcoming code of practice instead. Consultation on this issue is expected next year.

Other notable reforms

Statutory Sick Pay (SSP)

Under the current system, Statutory Sick Pay (SSP) is only available after four days of sickness and for those earning over £123 per week. The Bill removes both the waiting period and the earnings threshold, making SSP available to all employees from the first day of illness. This reform is expected to be one of the first to take effect.

Tougher harassment laws 

The Bill significantly strengthens employer responsibilities regarding workplace harassment. Employers will now have a duty to take “all reasonable steps” to prevent harassment, a marked increase from the current standard. This includes liability for harassment by third parties, not limited to sexual harassment, making it easier for employees to seek redress.

The Fair Work Agency 

A new Fair Work Agency will be established to oversee the enforcement of workers’ rights, including issues such as holiday pay. By unifying various enforcement bodies, this agency aims to streamline the process for employees seeking justice and ensure greater compliance with employment law across the board.

Implications for employers

While many reforms will not take effect until 2025 or later, employers should begin preparing for the upcoming changes. The phased approach gives businesses time to review their policies, contracts, and dismissal procedures to ensure compliance with the new laws. Particularly important areas of focus include:

• Revising employment contracts to reflect new rights around dismissal, flexible working, and zero-hours contracts.
• Implementing stronger anti-harassment policies to meet the higher legal standards.
• Monitoring developments around pending consultations on single worker status and the right to disconnect.

Key Takeaways for Employers

1. Unfair dismissal protections will apply from day one, with a probationary period allowing employers to assess new hires.
2. Flexible working becomes a day-one right, with stricter criteria for employers refusing requests.
3. Zero-hours contracts will remain lawful but must reflect actual working patterns, and cancellations will require compensation.
4. Fire and rehire practices will be significantly restricted, making enforcing contract changes harder.
5. Statutory sick pay will be available from day one, and parental leave rights will apply immediately without a qualifying period.
6. Stronger harassment laws will require employers to take all reasonable steps to prevent harassment, including from third parties.
7. The Fair Work Agency will be established to enforce workers’ rights and provide guidance on employment law.

For expert advice on navigating these changes, speak to us to stay ahead of developments and ensure they are fully prepared when the Employment Rights Bill 2024 comes into force.

Note: This article is not legal advice; it provides information of general interest about current legal issues.

While many employers focus on creating a positive work environment, one often overlooked factor is the impact of workplace language—specifically, office banter, casual jokes, or seemingly harmless comments. Unconscious bias, particularly in the use of language, can perpetuate exclusion and leave businesses vulnerable to legal issues.

The role of language in workplace discrimination

Language is one of the most powerful tools in communication. When words are carelessly chosen, they can foster a toxic work environment and lead to discrimination claims. The Equality Act 2010 protects employees from discrimination based on nine protected characteristics, including race, sex, disability, age, and discrimination during pregnancy or maternity leave. Discriminatory language, whether intentional or not, can result in legal ramifications.

For instance, in a 2021 case, an Employment Tribunal found that a manager who described a pregnant employee as “very emotional and teary” in an email had been dismissive and belittling. This language was seen as dismissive and stereotypical, reinforcing some harmful biases about pregnant women.

Unconscious bias and language: a hidden barrier

Unconscious biases are automatic and are often ingrained assumptions that can influence our behaviour, decisions and interactions with others. Personal experiences and societal stereotypes can shape them and are often reflected in language without any conscious awareness. Karen Cole, Head of Employment Law at RIAA Barker Gillette (UK), explains:

“Language laden with stereotypes or assumptions can have serious consequences. It affects the core culture of an organisation, as language shapes daily interactions between colleagues.  Unchecked, unconscious biases in language can marginalise employees and undermine workplace morale.

All of us carry unconscious biases, and we need to be encouraged to consider what those might be and how our use of language may reflect them. Comments made as a ‘joke’ or even as a so-called compliment can cause problems if they are uninvited and inappropriate.”

A 2023 Employment Tribunal case, which published the reasoning behind its judgment this year, highlights the issue further. A manager introduced a female employee as “glamorous,” which the Tribunal found potentially inappropriate. Describing someone in a business context this way can belittle their professionalism, which may lead to claims of harassment under the Equality Act 2010.

Fostering an inclusive workplace: language matters

Employers should take proactive steps to mitigate the impact of unconscious bias and ensure their language fosters inclusivity. Karen Cole emphasises the importance of nurturing a work environment where all employees feel valued and respected:

“Whether it’s direct insults or casual office banter, inappropriate language can harm workplace morale, reduce productivity, and potentially result in legal action.”

Here’s how employers can foster inclusion and avoid discrimination:

1. Raise awareness: Acknowledge that unconscious bias exists. Provide examples of biased language and offer inclusive alternatives for more thoughtful communication.
2. Challenge stereotypes: Encourage employees to question assumptions about people based on their protected characteristics, such as gender, race, or age.
3. Use inclusive language: Address individuals using preferred pronouns and avoid gender-specific terms for tasks and roles.
4. Focus on skills and experience: Evaluate employees based on their abilities and accomplishments, not their background or gender.
5. Revise policies: Regularly review job descriptions, performance evaluations, and internal communications to ensure language focuses on measurable skills rather than personal characteristics.
6. Education: Conduct regular workshops and training on unconscious bias and inclusive language practices.

The Equality and Human Rights Commission offers valuable resources that help employers create inclusive workplaces and avoid unlawful discrimination.

Contact Karen Cole today to learn how to navigate workplace language and avoid discrimination claims.

Note: This article is not legal advice; it provides information of general interest about current legal issues.

When faced with the challenging prospect of redundancy, it’s crucial to understand the legal requirements and common misconceptions surrounding the process. Whether you’re an employer trying to navigate redundancy laws or an employee facing potential redundancy, this guide will clarify the facts and debunk the myths.

Understanding redundancy: The facts

What is redundancy?

Redundancy occurs when a job or position within a business is no longer required. This can happen for several reasons, such as introducing new technology, changing working methods, restructuring, or even closing a branch or the entire business.

Employer obligations in redundancy situations

Employers have specific legal obligations when making redundancies. These include:

• Providing clear information about why redundancies are necessary.
• Outlining how many employees will be affected.
• Explaining the procedures and timelines involved.
• Clarifying how redundancy payments will be calculated.
• Detailing the criteria used for selecting employees for redundancy.

The selection pool for redundancy

Selection for redundancy must be based on clear, objective criteria. Skills, experience, performance standards, disciplinary records, attendance, and timekeeping are all factors that can be considered. However, these criteria must be applied fairly and consistently to all employees at risk of redundancy. Employers must also be careful to avoid any form of discrimination in the selection process.

The importance of consultation

Once employees are notified of potential redundancy, employers are required to consult with them. If 20 or more employees are affected, the law mandates at least 90 days’ notice and collective consultation with trade unions or elected employee representatives. Additionally, the employer must inform the Secretary of State of the impending redundancies.

Individual consultations are required for smaller redundancies affecting fewer than 20 employees. During these consultations, employees have the right to be accompanied by a colleague or trade union representative. The consultation process should explore alternatives to redundancy, such as reassignment to different roles or relocation.

Understanding redundancy pay

Employees with at least two years of continuous service are entitled to statutory redundancy pay. The amount varies based on age, length of service, and weekly earnings:

• Ages 17-21: Half a week’s pay for each full year worked.
• Ages 22-40: One week’s pay for each year worked from age 22 and half a week’s pay for each full year before that.
• Ages 41 and above: One and a half weeks# pay for each full year worked from age 41, one week’s pay for each full year worked between 22-40, and half a week’s pay for each year between 17-21.

Additionally, employees will either be required to work through their notice period or receive payment in lieu of notice. The length of this notice period is determined by an employee’s employment contract and the duration of their service with the company. They will also receive payment for any accrued but unused holiday unless asked to take this leave during their notice period.

The first £30,000 of redundancy pay is tax-free. Additionally, employers may offer enhanced redundancy packages to avoid a full redundancy process, often through a settlement agreement.

Common myths about redundancy:
The fiction

MYTHS	FACTS
Redundancy equals unfair dismissal.	Redundancy is a lawful form of dismissal. If carried out correctly, it is considered a fair dismissal.
Employees can be made redundant immediately.	Employers must adhere to legal requirements for consultation and notice periods. Failure to do so could result in an employee filing a claim with an Employment Tribunal.
Employees cannot challenge a redundancy.	Employees have the right to challenge various aspects of the redundancy process, from the justification for redundancies to the selection criteria used.
Redundancy can be used to dismiss underperforming employees.	Using redundancy as a cover for performance-related dismissals is not lawful and can lead to unfair dismissal claims.
All redundant employees are entitled to redundancy pay.	Only employees with two or more years of continuous service are entitled to statutory redundancy pay. It’s essential to review the employment contract to determine specific entitlements.
Redundancy only affects the newest employees.	Redundancy selection should not be based solely on the “last in, first out” principle. Such an approach may expose the business to claims of unfair selection for redundancy.

Conclusion

Whether you’re an employer or an employee, navigating a redundancy situation requires careful consideration and adherence to legal requirements. Missteps can lead to costly legal challenges, so seeking professional advice is crucial to ensure the process is handled correctly.

Contact us today for expert guidance on redundancy procedures and employee rights and to answer any questions you may have.

Note: This article is not legal advice; it provides information of general interest about current legal issues.