Welcome to our August 2024 Employment Law Update!
In this edition we cover the new remit for the Low Pay Commission confirmed by the Government and provide an update on the Employment (Allocation of Tips) Act 2023 and the accompanying Code of Practice which has been issued to provide guidance to employers and workers.
In light of the Worker Protection (Amendment of Equality Act 2010) Act 2023 coming into force in October, we touch on what this means for employers and employees, how our Employment Law team can assist and provide a useful warning through our monthly case update that employers must take such cases seriously and try not to defend inappropriate conduct by hiding behind the excuse of ‘workplace banter’.
Low Pay Commission’s remit updated
In line with Labour’s ‘Making Work Pay’ manifesto, the government has asked the Low Pay Commission (‘LPC’) to factor in the cost of living, including the likely inflation rate between now and March 2026, when recommending increased National Living Wage and National Minimum Wage rates that would apply from April 2025. The recommended National Living Wage rate must not fall below two-thirds of UK median earnings for workers aged 21 and over. The LPC has also been tasked with recommending a National Minimum Wage rate for 18 – 20 years from April 2025 and setting the under 18 and apprentice rates ‘as high as possible without damaging the employment prospects of each group.’ The LPC’s report will be delivered at the end of October 2024.
Fair allocation of tips: Code of Practice
In advance of the Employment (Allocation of Tips) Act 2023 coming into force fully on 1 October, the government has issued a Code of Practice to help employers design and implement their tipping policies and practices (‘the Code’). The code provides guidance for parties in relation to the scope of the provisions (including qualifying tips and workers), factors and methods to ensure fairness, encouraging transparency and addressing problems when they arise.
Where disputes arising from this legislation result in a tribunal claim, judges will be obliged to consider whether the employer has acted in accordance with the Code (although failure to do so does not necessarily mean that the employer has acted unfairly). You can read the Code here. In the meantime, we advise employers to draft their policy carefully, setting out the reasons for their system of allocation in order to manage expectations.
Protecting workers from sexual harassment
The government has confirmed that the Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force on 26 October 2024. The Act requires employers to take reasonable steps to prevent their staff from being sexually harassed during their employment. Failure to do so could result in an Employment Tribunal imposing a 25% uplift to a claimant’s compensatory award. Employers are expected to be proactive in preventing sexual harassment in the workplace and could be found liable for sexual harassment committed by its employees.
Please contact a member of the Employment Law team for advice on drafting a suitable policy and the provision of training to all staff, particularly line managers.
Employment law & HR training sessions
Our employment team’s half or full day training sessions are designed to update employers on changing legislation, ensure that policies are correctly drafted and implemented, and raise awareness of employees’ legal rights and obligations. Covering a range of different HR and employment law topics, one of our most popular sessions has been ‘Banter v Discrimination’. Sessions can be tailored to meet your specific business needs and the cost is based on the length of the training to be delivered and the number of attendees. We are now taking bookings for September 2024 onwards, so please get in touch if you would like to book a session. Find out more here.
Case update
Workplace banter no defence in sexual harassment case
Miss M Bratt v JGQC Solicitors Ltd
In the light of the new legal duty for employers to take a proactive approach to protecting their employees from sexual harassment, due to take effect in October, this case serves as a useful warning that employers must take such cases seriously and try not to defend inappropriate conduct by hiding behind the excuse of ‘workplace banter’.
Miss Bratt took her employer, a firm of solicitors, to tribunal claiming sexual harassment following several unwanted comments from the owner of the firm, Mr Hall. She started working for the firm on 4 January 2022 and resigned on 22 February after a series of incidents that were, taken together, inappropriate and of a sexual nature. During the tribunal, witnesses who gave evidence in support of Mr Hall, revealed that such comments were an accepted part of their workplace culture, dismissing them as just ‘banter’. It also transpired that when Miss Bratt raised a grievance alleging sexual harassment, the response from those investigating it was hostile, further substantiating her allegations about ‘an offensive and intimidating environment’. The respondent’s case that Miss Bratt contrived the allegations because she had made several mistakes and thought she was going to lose her job, was not proved.
The tribunal found that the respondent’s conduct was such as to have had ‘the proscribed effect of creating an offensive environment’ and the ‘claimant’s complaint of sexual harassment to be well founded’. Crucially, the tribunal stated “It is all too easy for things to be said and given the label of ‘banter’ or that it was just a joke, but this plainly cannot be right. It is immaterial whether the conduct is acceptable to others or is indeed common in the workplace.”
Following this decision and in preparation for the upcoming legislative changes, all employers should review their policies relating to sexual harassment, equality and diversity and actively look for areas of risk to put preventative measures in place which should include tailored, mandatory training for all staff. The correct management of investigating complaints is also a key area to be addressed. The Equality and Human Rights Commission (EHRC) guidance in this critical area is a helpful starting point for employers and the EHRC is currently consulting with interested parties to establish if the guidance, as it stands, is useful.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
