Top 5 recent workplace developments – May 2024

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

1. Workplace culture: New duty to prevent sexual harassment in the workplace

On 26 October 2024, a new duty is being introduced for employers to “take reasonable steps” to prevent sexual harassment of their employees.

New legislation will strengthen the protections available to employees from sexual harassment by other employees at work, by introducing a new duty on employers to take reasonable steps to prevent sexual harassment, creating a new risk area for employers. 

There will be a corresponding new compensation uplift of up to 25%, for breach of the new employer’s duty to prevent sexual harassment. Employees won’t be able to bring a claim for breach of the duty as it won’t be a standalone claim – but where their claim for sexual harassment succeeds, the Tribunal will then consider applying an uplift to any overall compensation awarded if it also considers there has been a breach of the new duty. 

Updated Equality and Human Rights Commission (EHRC) technical guidance on Sexual harassment and harassment at work is awaited, which will reflect the new duty on employers. The EHRC intends to open a six-week consultation in early summer on the planned changes to its guidance.

Practical point

The new legislation shifts the focus from redress to prevention, adding to the onus on employers to take proactive steps. Taking proactive steps to prevent incidents of harassment and bullying arising will also help employers build a more inclusive workplace culture. 

Failure to prepare for this new duty risks an increase in discrimination claims, which could lead to substantial compensation payouts and damaging publicity. This is particularly so in the wake of the #MeToo movement and increased government focus on Non-Disclosure Agreements (NDAs) which have led to heightened expectations of respectful workplace culture and a growing awareness among employees about discrimination rights. 

For further details about this new duty, see our update.

2. Belief discrimination: Gender critical beliefs 

A college lecturer was fairly dismissed for the manifestation of his gender critical views and was not discriminated against.

Mr Lister, who was a lecturer at the New College Swindon (the “College”), has gender critical beliefs that "sex is binary, immutable and a biological fact and should not have been conflated with gender identity." 

Mr Lister had been asked by a trans student, Student A, to use their preferred name. Rather than using the name requested, Mr Lister adopted a communication style of gesturing, which he accepted upset Student A. When Student A asked about their eligibility to participate in an all-female maths Olympiad given their gender transition, Mr Lister stated, "she could because she was a girl" and included their previous female name on list of entrants on the whiteboard at the front of the class. 

When Student A stayed back after class to address this, Mr Lister explained that the decision to transition was "irreversible", that taking testosterone was likely to cause long-term medical problems and NHS services could not be guaranteed for the future.

Subsequently, Student A’s attendance declined and another student, Student B, made a complaint about Mr Lister’s conduct. Further issues came to light during the investigation, including social media posts by Mr Lister. Mr Lister was dismissed and placed on the barred list following a DBS referral. During the disciplinary hearing Mr Lister stated that he was not prepared to use Student A's preferred name in the future.

It was accepted that Mr Lister's philosophical belief was capable of protection under the Equality Act 2010. Nonetheless, the Employment Tribunal dismissed his claim for direct discrimination. It concluded that to the extent that the College sought to restrict the manifestation of Mr Lister's belief, it had been justified in doing so in trying to protect Student A's welfare and prevent harm. Mr Lister’s dismissal was proportionate given his indication that that his behaviour would not change going forward. The Tribunal also dismissed Mr Lister's indirect discrimination claim.

Practical point

The College had clear policies in place to “assist and protect” those at the College and the policies, and Mr Lister’s failure to follow parts of them, played an important role in the outcome of this case. This demonstrates the importance of employers having clear, comprehensive and appropriate policies in place to rely upon when difficult issues of balancing conflicting beliefs arise.

Lister v New College Swindon ET/1404223/2022

3. Workplace culture: Neurodiversity

The City & Guilds Foundation has published its 2024 Neurodiversity Index report with recommendations for creating a neuroinclusive workplace.

The City & Guilds Neurodiversity Index Report 2024 found that more organisations are focusing on neuro-inclusion, with an increase in employers having neurodiverse-friendly strategies and adapting their recruitment practices to accommodate neurodivergent applicants as compared to the previous year. That said, it reported that 50% of individual respondents had been off work during 2023 as a result of neurominority challenges. In addition, over a third of neurodivergent workers had no guidance from their employer and a fifth were waiting for promised adjustments to be made.

City & Guilds, which specialises in skills development, also made a number of recommendations aimed at creating a neuroinclusive workplace, including:

• Reviewing and updating policies to create an inclusive work environment and eliminate barriers
• Drafting clear and understandable job descriptions that reflect the actual skills needed for the job 
• Providing interview questions in advance 
• Clearly explaining the rules of the workplace during the onboarding process
• Ensuring physical, technological and communication accommodations are in place to support all employees 
• Implementing employee resource groups, neurodiversity champions and mentorship programmes to support neurodivergent employees 
• Encouraging and supporting the representation of neurodivergent individuals at all levels of the organisation

Practical point

In an effort to increase inclusivity, particularly for neurodiverse candidates, John Lewis has published job interview questions online. While this approach may not be suitable for all organisations there are various hiring initiatives employers can adopt to accommodate different needs which can help with building a more diverse and talented team. 

See our detailed update for the practical steps employers can take to ensure a fairer recruitment process for neurodiverse individuals: Neurodiversity: Harnessing untapped talent with fairer recruitment processes. 

4. Consultation on clarifications to TUPE & abolishing European Works Councils 

The government has launched a consultation on making further changes to TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006), as well as the abolition of the legal framework relating to European Works Councils.

The consultation proposes making changes to:

• Clarify that TUPE applies to employees and not to workers: TUPE is stated to apply to ‘employees’ but the definition of ‘employee’ is looser than in other UK employment legislation which has lead to a tribunal decision that TUPE also applies to workers. Although that decision is not binding on other tribunals, it has resulted in uncertainty on whether TUPE applies to workers. The government therefore wants to resolve this by specifically removing workers from the scope of protection under TUPE.
• Clarify the application of TUPE where a single business is transferred to multiple buyers: The government’s proposal is that, on a transfer, an employment contract may not be split between multiple employers, and the employers taking over the business or service would be required to agree which one of them should be responsible for each employee's contract. 
• Abolish the legal framework of European Works Councils in the UK: Following Brexit, the government legislated to prevent any new Works Councils (consultative bodies representing the European workforce in multinational organisations) being formed. They now propose to allow those already in existence to be disbanded.

In a separate development, the government has confirmed that the new Code of Practice on Dismissal and Re-engagement will be brought into force by July 2024, once it has been approved by Parliament. We have reported on this Code previously: Top 5 recent workplace developments – March 2024.

Practical point

The Government intends that the consultation, which closes on 11 July 2024, forms part of its drive to reduce uncertainty and cut red tape. The proposals to amend TUPE are unlikely to have a significant impact in practice although, in relation to the second point above, there is insufficient information at present to understand how the rules will deal with how transferee employers might agree which of them will inherit which employees and what happens if they can’t agree. 

5. Disability discrimination – compensation

An Employment Tribunal has awarded a disabled council employee £4.6 million following her dismissal while on sick leave. 

The employee, Mrs Wright-Turner, held the position of Director of Public Service Reform at Hammersmith and Fulham Borough Council for less than nine months. She suffers from ADHD and post-traumatic stress disorder (PTSD), which the Employment Tribunal found were disabilities at the relevant time and the Council knew about. Mrs Wright-Turner was signed off sick with PTSD and her probationary period extended without consultation or notice. She was then dismissed prior to the end of her extended probationary period whilst she was still on sick leave. Mrs Wright-Turner raised a grievance and appealed against her dismissal, but the Council did not deal with them.

The Employment Tribunal found that Mrs Wright-Turner was dismissed because of her PTSD and that senior officers at the council, including the chief executive, had tried to deliberately mislead her and the Tribunal. They found the Council did not adequately consider extending probationary period as an alternative to dismissal. The Tribunal partly upheld Mr Wright-Turner’s claims for harassment, direct discrimination and discrimination arising from disability, and decided that the employer had unreasonably failed to comply with the Acas Code of Practice on Disciplinary and Grievance procedures in relation to her grievance and her dismissal.

At the remedies hearing, the Tribunal heard evidence that the effects of the dismissal on Mrs Wright-Turner were very severe and she has been unable to work since her dismissal. Expert evidence was given that she was unlikely to be able to work again and the deterioration in her health had been caused by the Council's actions. She was awarded nearly £4.6 million in compensation, including approximately: £327,000 for past losses; £1,500,000 loss of future earnings to retirement and loss of pension; £140,000 for injury to feelings, aggravated damages, and psychiatric injury; £15,000 exemplary damages; £271,000 non-compliance with Acas Code; and grossing up of £2 million. The average award for disability discrimination claims for 2022/2023 was £45,435.

Practical point

This case is a reminder to employers to pause and reflect before any dismissal involving a disabled employee. Employers should be mindful of their duties towards employees with disabilities, and the importance of properly, fairly and appropriately managing ill-health and sickness absence. The case also serves as a reminder of the importance of following both internal policies and the Acas Code. 

Liability judgment: Wright-Turner v London Borough of Hammersmith and Fulham and another (liability) 

Remedy judgment: Wright-Turner v London Borough of Hammersmith and Fulham and another (remedy)