Welcome to our September 2024 Employment Law Update!
In this edition of our Employment Law Update we remind readers on the upcoming Worker Protection (Amendment of Equality Act 2010) Act 2023 that comes into force on 26 October 2024.
We also touch on the recent judgment from the Supreme Court which restored the injunction that prevents Tesco from 'fire and re-hiring'. Furthermore, we share news on the recent guidance for employers which has been issued by the Equality and Human Rights Commission (EHRC) to help them support disabled workers to take advantage of hybrid working.
Finally, our case update this month demonstrates the importance of following the correct procedures when assessing someone’s ability to work, including using ‘Access to Work’ and making reasonable adjustments.
Protecting workers from sexual harassment
Don’t forget that the Worker Protection (Amendment of Equality Act 2010) Act 2023 (“the Act”) comes into force on 26 October 2024. The Act requires employers to take reasonable steps to prevent their staff from being sexually harassed during the course of their employment. Failure to do so could result in an Employment Tribunal imposing a 25% uplift to a claimant’s compensation for sexual harassment. In the event of a claim reaching the Tribunal, employers will need to provide evidence that they have been proactive in preventing sexual harassment in the workplace, in other words, that they have met the requirement of taking “reasonable steps”. Such steps would include things such as tailoring their equal opportunities, harassment and bullying policies (or putting in place these policies if they do not yet exist), adding a specific policy for sexual harassment, and offering regular training on harassment within the workplace to the entire workforce. The application of a generic approach is unlikely to impress.
Our employment team can help you draft or amend your policies, and deliver appropriate training for all your staff, particularly line managers, your internal HR team and other senior members of the business who may have incidents of sexual harassment reported to them.
Fair allocation of tips: Code of Practice
Another reminder that the Employment (Allocation of Tips) Act 2023 comes into force on 1 October, placing new duties on employers to ensure tips, gratuities and service charges paid by customers are allocated to workers fairly and on a transparent basis. Affected employers are strongly recommended to refer to the government’s recently issued Code of Practice, which also comes into effect from 1 October 2024. This outlines the scope of the provisions (including qualifying tips and workers), factors and methods to ensure fairness, how to encourage transparency and how to address problems when they arise.
If a claim reaches an Employment Tribunal, judges must consider if the employer has acted in accordance with the Code and can take this into account when dealing with a claim (although failure to do so does not necessarily mean that the employer has acted unfairly).
In the meantime, we advise employers review their current tipping practices to see if they will come under the scope of their new rules and, if so, consider any adjustments which may be required. If one is not yet in place, carefully drafting a written policy on tips, setting out the reasons for their system of allocation in order to manage expectations will be another key step.
Injunction prevents Tesco from ‘fire and re-hire’
In 2007, Tesco reorganised its distribution centre network and offered experienced warehouse workers retained pay (‘guaranteed for life’) as an incentive to persuade them not to apply for redundancy. The agreement was reached via a collective agreement with USDAW and would be a permanent feature of employees’ contractual terms, only to be changed by mutual consent. In 2021 changed circumstances led to Tesco wanting to remove the retained pay element in return for a lump sum payment to those with this contractual term. USDAW took the case to the High Court, which issued an injunction.
This was overturned on appeal, with the Court ruling that there was no express term in the contracts of employment that prevented Tesco from dismissing and rehiring. The High Court also considered that the ‘guaranteed for life’ statement was unenforceable. USDAW appealed to the Supreme Court which, handing down its judgment recently in September 2024, unanimously restored the injunction, stating that Tesco could not use its objective of wanting to remove its employees’ right to retained pay as a reason for terminating their employment contracts.
This is an unusual case but underlines the importance of clear drafting when it comes to how specific entitlements – and the length of time they are to last – are incorporated into contracts of employment.
Helping disabled workers with hybrid working
On 5 September 2024, the Equality and Human Rights Commission (EHRC) issued guidance for employers to help them support disabled workers to take advantage of hybrid working. It provides practical tips, conversation prompts, questions and case study examples, covering both recruitment and employment. The EHRC recommends that the guidance is read alongside their guidance on workplace adjustments and pre-employment health questions, and is aimed specifically at managers and leaders of organisations. This is a valuable resource for those businesses that have embraced hybrid working but need to manage the downsides of remote working, such as dealing with isolation and ensuring the supply of the correct equipment, as well as the upsides.
Employment law & HR training sessions
Our employment team’s half or full day training sessions, alongside our more informal Lunch and Learn sessions, are designed to update employers on both recent and upcoming changes in legislation, raise awareness of employees’ legal rights and obligations and provide guidance on conducting a variety of internal HR procedures in line with legal obligations and best practice. Covering a range of different HR and employment law topics, one of our most popular sessions has been ‘Banter v Discrimination in the Workplace.’ With the new duty in respect of sexual harassment coming into force on 26 October 2024, this training session, alongside our more bespoke training session focused on sexual harassment, is something employers should consider exploring further. Sessions can be tailored to meet your specific business needs, with costs based on the length of the training to be delivered and the number of attendees.
Please get in touch with the team if you would like to book a session. Find out more here.
Case Update
Firm found to have made reasonable efforts to accommodate secretary’s disability in July 2024 ruling
Ms Y Pemberton v RGB Legal Services Ltd et al
Ms Pemberton was a legal secretary in the Real Estate department of RGB Legal Services Ltd (“RGB”). She suffered from rheumatoid arthritis which particularly affected her right hand and was exacerbated by typing and mouse clicking.
In 2023 she brought various claims for discrimination, including failure to make reasonable adjustments, indirect discrimination, harassment and victimisation. During the period in question (2020 – 2023) she worked largely from home (although she was on sickness absence for a large part of 2022) and the firm was shown to have made a number of reasonable adjustments in terms of equipment provided, including Dragon ‘dictation to text’ software, and reducing her hours to accommodate her disability.
Ms Pemberton’s claims arose from a number of the firm’s perceived failings, including inviting her to attend a capability meeting to discuss a phased return to work; failing to provide her with an alternative ‘dictation to type’ software to Dragon; failing to give her adequate training on the latter; refusing to allow home working; and other allegations in relation to hybrid working.
The tribunal dismissed all the claims, concluding that the firm acted reasonably throughout and that several of the complaints were factually incorrect. This case demonstrates the importance of following the correct procedures when assessing someone’s ability to work, including using ‘Access to Work’ and making reasonable adjustments. If reasonable steps in this respect have been taken, and a fair procedure followed, a claim for discrimination is unlikely to succeed. The new ECHR guidance on supporting disabled employees to work remotely is helpful in this regard.
