Top 5 recent workplace developments – October 2024

Here is our selection of key recent employment law developments for employers, HR professionals and in-house lawyers.

1. New sexual harassment duty - Updated guidance 

The Equality and Human Rights Commission (EHRC) has published its final updated technical guidance on sexual harassment and harassment at work.

On 26 October 2024 the new duty to take reasonable steps to prevent sexual harassment in the workplace will come into force. To help employers comply with this new duty, the EHRC has published its final updated technical guidance, following a consultation in the summer. 

The updated guidance makes it clear that:

• Employers are unlikely to be able to show they have complied with the duty if they have not carried out a risk assessment
• Workers cannot bring a stand-alone claim for third party harassment

It also contains more detail on what constitutes ‘reasonable steps’, with new examples of reasonable steps employers can take to eliminate harassment in the workplace.

In addition, the guidance has a new Employer 8-step guide: Preventing sexual harassment at work.

Practical point

Employers should now take steps to ensure compliance with the new duty, and to foster an inclusive and positive workplace culture. This involves undertaking a comprehensive review of current policies and procedures, training and workplace culture and implementing practical measures to help adopt a proactive stance against sexual harassment and other negative workplace behaviours. Agile policies and procedures are needed to address and demonstrate compliance in this area at both an individual level (for managers) and at company level. 

See our detailed article on what the final EHRC guidance means in practice and a 4-step action plan on how employers should prepare for the new duty.

Click here for more information on how we can help.

2. Government reforms - Employment Rights Bill 

The government has published the Employment Rights Bill which will bring forward 28 individual employment reforms.

The government’s plans are set out in the Employment Rights Bill, Press Release and Statement made on 10 October 2024. They give more detail on rights and workplace protections that have been trailed over recent months. 

Changes could still be made to these proposals before many of them come into effect in 2026, with some more immediate changes on the way.

Some of the headline plans in the Bill include:

• Unfair dismissal protection from day one: the current two-year qualifying period for unfair dismissal protection will be removed. Employers will be able to use probationary periods to assess the suitability of new hires, with a lighter touch dismissal process during this time. 
• Flexible working to be the ‘default where practicable’: there will be greater onus on employers to agree to requests unless flexible working is not ‘reasonably practicable’. 
• Strengthened harassment protections: new liability on employers for harassment of their employees on any ground (not just sexual harassment) during the course of their employment by third parties. It will be a defence to show the employer has taken ‘all reasonable steps’ to prevent the third party from doing so. 
• End ‘fire and re-hire’ practices: it will be automatically unfair to dismiss an employee:
  • for refusing to agree to a variation to their employment contract
  • to replace them with another person, or re-engage them, under a varied contract to carry out substantially the same duties.
• Collective redundancy consultation: collective consultation will be required, and the duty to notify the Secretary of State on the HR1 form will apply, where an employer plans to dismiss 20 or more employees across the entire business within 90 days or fewer. 
• Enhanced rights to statutory sick pay (SSP): all workers will be entitled to SSP from their first day of absence, and the lower earnings limit for SSP will be removed.
• Enhanced parental rights: workers will gain the right to paternity leave, unpaid parental leave and bereavement leave from day one of a job. Strengthened protections for pregnant women and new mothers, and others taking family leave, will also be introduced.
• Zero hours contracts: the proposal is for workers on zero hours or low guaranteed hours who regularly work more hours than their contracts indicate to have a new right to a contract that reflects the number of hours they regularly work over a 12-week period. Workers will also be entitled to reasonable notice of any changes in shifts, with proportionate compensation for any shifts cancelled or curtailed at short notice. These measures will extend to agency workers.

A range of further measures to come are outlined in the government’s ‘Next Steps’ policy paper.

In addition, the Equality (Race and Disparity) Bill will be published during this parliamentary session (meaning presumably by July 2025). Proposals include:

• Making it mandatory for large employers with more than 250 staff to report their ethnicity and disability pay gaps
• Extending equal pay rights to protect workers suffering discrimination on the basis of race or disability

Practical point

The government’s plans are significant for employers and employees alike and in many respects go further than anticipated.

It is likely the Bill will not receive Royal Assent for at least another year. The government expects to begin consulting on these reforms in 2025 and anticipates that the majority of reforms will take effect no earlier than 2026. Reforms to unfair dismissal will not take effect before Autumn 2026. 

For further details on what is included in the Employment Rights Bill and what practical steps employers can take to prepare, as well as the ‘Next Steps’ reforms, see our update: Workers to get new rights and protections under the Employment Rights Bill.

3. Employment status - Supreme Court decision

The Supreme Court has ruled on the employment status of football referees for tax and NICs purposes.

Part-time football referees were engaged by PGMOL on annual overarching contracts. They could accept or decline match appointments - when they accepted an appointment, this gave rise to an individual contract for a particular match. The referees were required to undertake training provided by PGMOL and were subject to their disciplinary procedures.

Both the First-tier Tribunal and the Upper Tribunal (Tax) found that there was insufficient mutuality of obligation for the contracts to be contracts of employment. However, the Court of Appeal and Supreme Court disagreed.

The Supreme Court concluded that the individual match day contracts created the required mutuality of obligations, and PGMOL had the required level of control over the referees. 

The Court found that a referee and PGMOL were under mutual contractual obligations from the time the referee accepted the match appointment and while that match day contract was in place. It held that the combination of contractual obligations imposed on referees as to their conduct generally during an engagement and as to their conduct during a match was capable of giving PGMOL a sufficient ‘framework of control’ to meet the control test for employment purposes.

Practical point

The First-tier Tax Tribunal will now determine whether, taking into account all relevant considerations, the referees’ contracts were consistent with contracts of employment. 

The government’s employment reforms (see above) include plans over the longer term to consult on a move from the current three categories of employment status (employees, workers and self-employed) to a simpler two category framework, whereby individuals are classified as either ‘workers’ or ‘self-employed’ for the purpose of workplace rights and protections. 

Professional Game Match Officials Ltd v Commissioners for HMRC 

4. Harassment - Related to sex

The EAT has ruled that comments about baldness were harassment related to sex.

Mr Finn was called “a bald c***” by a colleague, Mr King, and threatened with physical violence. He subsequently brought claims, including for harassment related to sex. 

The tribunal found that the conduct amounted to harassment. Although the company argued that baldness is not an exclusively male characteristic, the tribunal found that there was a connection between the word "bald" and the protected characteristic of sex. On appeal, the EAT agreed that the fact that something could potentially apply to both sexes did not mean that it could not be inherently related to sex. Although baldness affects men and women, it is more prevalent in men and is therefore inherently related to sex.

Practical point

This decision confirms that for a characteristic of a person's appearance to relate to a protected characteristic it must be more prevalent in those who share the protected characteristic than in those who do not. 

British Bung Manufacturing Company Ltd v Finn (Judgment was delivered in November 2023 and published on 3 October 2024.)

5. Discrimination - Philosophical belief

The EAT ruled that a belief in English nationalism, which included anti-Muslim beliefs, was not a protected philosophical belief.

Mr Thomas was engaged through an employment agency to provide consultancy services to an NHS Trust. After he was informed his assignment was being terminated early because he had failed to disclose an unspent conviction, he brought a claim for discrimination on the grounds of religion or belief. He alleged his assignment was terminated because of his political affiliation with the English Democrats political party, for whom he had stood for political office, and his philosophical belief in English nationalism. As part of this belief he held anti-Islamic beliefs, in essence that there was no place in British society for Muslims or Islam and that Muslims should be forcibly deported from the UK.

At a preliminary hearing, the tribunal found that the fifth criterion of the Grainger test on what amounts to a protected philosophical belief - that the belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others – was not satisfied. 

Mr Thomas appealed to the EAT which held that, while the threshold for the fifth criterion of the Grainger test is low, the tribunal was entitled to find that Mr Thomas' belief did not pass that threshold. 

Practical point

The EAT commented that the decision in the gender critical belief case of Forstater may not be the last word on the issue. Forstater set a low threshold for beliefs to be protected, finding that only beliefs akin to Nazism, pursuing totalitarianism or ‘espousing violence and hatred in the gravest of forms’ would not be a protectable belief. This case suggests that beliefs which espouse intolerance and discrimination but which fall short of stirring up hatred or violence (such as Nazisim or totalitarianism) may not be protected. 

Further clarity is anticipated once the Court of Appeal hands down its decision in the gender critical beliefs case of Higgs v Farmor’s School which was heard earlier this month. 

Thomas v Surrey and Borders Partnership NHS Foundation Trust