Employment Eye

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Welcome to our latest round up of employment law developments and what they mean for employers. In this edition, we cover: The new law on sexual harassment in the workplace The Government has recently passed new legislation to prevent sexual harassment in the workplace. The Worker Protection (Amendment of Equality Act 2010) Act 2023 (the “Act”) is due to come into force on 26 October 2024. This article takes a closer look at the Act and how it will impact employers, as well as the steps that should be taken in order to prepare for the change. Read more Navigating Hybrid Working and Office Returns The landscape of flexible working has evolved drastically over recent years as a result of the Covid-19 pandemic, with many employers choosing to adopt home and hybrid working models over traditional office-based arrangements. Consequently, employees have become accustomed to working flexibly and a large proportion do not find the prospect of returning to the office particularly appealing. However, some employers are asking employees to return to the office (at least for some of the working week). This article explores the pros and cons of office-based work, along with the legal considerations surrounding office returns. Read more Fire and Re-hire practices The Government has recently published its response to a consultation on its draft Code of Practice on Dismissal and Re-engagement, together with an updated draft of the Code. The draft Code is currently at the parliamentary approval stage and is expected to come into force in summer 2024. This article looks at fire and re-hire practices and considers the implications of the draft Code and what that may mean for employers going forward. Read more

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The new law on sexual harassment in the workplace

The current position 

Under the Equality Act 2010, an individual is harassed when they are subjected to unwanted conduct which is either related to a relevant protected characteristic such as age, race or sex, or is of a sexual nature, where the conduct has the purpose or effect of violating the individuals’ dignity or creating an environment that is intimidating, hostile, degrading, humiliating or offensive. 

What will the position be following 26 October 2024?

Following a consultation on sexual harassment in the workplace in July 2021, the Government passed the Act to introduce a new legislative duty on all employers to take reasonable steps to prevent sexual harassment of their employees in the workplace. While the legislation was initially drafted on the basis that employers would be under a duty to take “all reasonable steps” to prevent sexual harassment of their employees, this was diluted to require employers to take “reasonable steps” to prevent sexual harassment in the workplace. 

The Act does not create a new standalone claim, and does not dilute from the existing legislation under the Equality Act 2010 (as set above), but it does allow the Employment Tribunal to increase compensation for any awards for sexual harassment by up to 25% if the employer is found to have breached the new duty to prevent that harassment. In addition, the Equality and Human Rights Commission (ECHR) will be able to enforce the new duty.

What steps should employers be taking?

The Act means that employers will need to take proactive ownership in taking steps to prevent discriminatory behaviour in the workplace. Updated guidance is due to be produced ahead of October 2024, but in the meantime, it is advisable for employers to consider the following:

• Reviewing and updating, or where necessary creating, policies which deal with harassment and sexual harassment in the workplace.
• Delivering mandatory training for all staff regarding expectations surrounding standards of behaviour, what sexual harassment is and processes for raising and dealing with a sexual harassment report.
  Improving awareness of the new duty for managers.
• Rooting out any sexist workplace culture and adopting a zero-tolerance approach in relation to sexual harassment.
• Ensuring that methods of raising sexual harassment reports are clear and readily accessible to all employees.
• Ensuring that all sexual harassment reports are properly investigated and resolved.
• Appointing and training workplace champions to act as key contacts for those wishing to raise issues of harassment in the workplace to enable them to discuss issues in confidence in the first instance.

By ensuring that staff feel supported, they will be empowered to come forward and this will foster a positive culture and safe working environment for all staff in the workplace, improving retention, recruitment, reputation and overall staff happiness.

Should you require any assistance to ensure you and your organisation are fully prepared, please click here to see how Bevan Brittan are able to help.

 

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Navigating Hybrid Working and Office Returns

The pros and cons of office working

Returning to the office offers a number of benefits including the ability to collaborate more easily, improved communication, face-to-face interaction, increased productivity, development of team relations and greater oversight for support and supervision. 

There are however a number of drawbacks, including decreased employee satisfaction and motivation due to the decrease in their work-life balance, increased employer overhead costs and decreased employee productivity as a result of the time and stress of commuting. In addition, there may be recruitment issues as office based roles tend to attract candidates from a smaller geographical pool, there is also the risk of losing talent (and failing to attract good candidates) as home or hybrid working is a key requirement for many individuals. 

Legal considerations when requiring office returns

Organisational needs will vary from business to business, and those employers wishing to return to more traditional working arrangements should consider the legal position before communicating with employees. 

For many employees, remote and hybrid working will have been agreed on a temporary basis, with no formal variation to their employment contract. In such circumstances, asking an employee to return to their normal place of work is likely to be considered a reasonable management instruction. 

However, there may be circumstances where a formal contractual change has been agreed, either on an express or implied basis, in which case a variation of the employee’s contract will be required before a return can be enforced.  

It’s worth remembering that employees can still request to continue working from home, and whilst there is no obligation to grant such a request, employers must consider any such requests in accordance with the Flexible Working statutory scheme. 

Flexible working requests

Under the Employment Rights Act 1996 and the Flexible Working Regulations 2014 (as amended), employees have the right to request flexible working arrangements, including remote and hybrid working. Employers are required to consider flexible working requests in a reasonable manner and must consult with the employee before rejecting their request on one or more of the following grounds:

• Extra costs that will damage the business.
• The work cannot be reorganised among other staff.
• People cannot be recruited to do the work.
• Flexible working will affect quality.
• Flexible working will affect performance.
• The business will not be able to meet customer demand.
• There’s a lack of work to do during the proposed working times.
• The business is planning changes to the workforce.

A number of changes to the statutory flexible working scheme took effect on 6 April 2024 following implementation of the Employment Rights (Flexible Working) Act 2023. Employees now have the right to make a statutory flexible working request from the first day of their employment and may make two statutory requests per year. The requirement for employees to explain the impact of their request has been removed and the length of time an employer can take to deal with a flexible working request has been reduced from three months to two.  

We recently acted for the Respondent in the case of Wilson v Financial Conduct Authority, in which the Tribunal accepted that detailed consideration had been given to Miss Wilson’s requests to work entirely from home before it was declined. This case is a helpful reminder of the need to treat any request on its own specific merits, particularly in the context of hybrid working/home working post-pandemic. 

Acas has also issued a revised Code of Practice on the procedure for managing flexible working requests, and whilst a failure to follow the Code will not automatically result in any legal liability, employment Tribunals can take the Code into account when considering a claim for breach of the flexible working statutory scheme. 

Comment

Hybrid and remote working offers a flexible and adaptable solutions for many workplaces, however it won’t be suitable for all employers. 

Before requiring employees to return to the workplace, employers should firstly check contractual arrangements and ensure that clear policies and procedures are in place.

We expect employers to see an increase in flexible working requests and therefore we would recommend ensuring that managers are trained on managing requests in accordance with the statutory scheme. In particular, emphasis should be given to assessing each case individually, considering factors such as the nature of the role, operational requirements and the employee’s personal circumstances. Any refusal of a flexible working request and/or failure to handle a request appropriately could give rise to grievances and/or claims in the Employment Tribunal. As such, employers should ensure that detailed reasons are given for their decisions, finding a workable solution for both parties, where possible.

 

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Fire and Re-hire practices

What is “dismissal and re-engagement”? 

Dismissal and re-engagement, also known as “fire and rehire”, is when an employer implements changes to employment terms and conditions by dismissing an employee and then seeking to re-engage them on new (usually less favourable) terms. 

This practice has become increasingly controversial in recent years, and the P&O Ferries scandal which saw the dismissal of approximately 800 members of staff without consultation in early 2022 was what prompted the Government’s consultation on the topic.

The Code

The aim of the Code is to “ensure employers take all reasonable steps to explore alternatives to dismissal and re-engagement and engage in meaningful consultation with a view to reaching an agreed outcome in good faith and with an open mind”. 

The Code makes it clear that dismissal and re-engagement should be a last resort, where all other options have been exhausted.

When does the Code apply? 

The Code will apply where the employer:

• is considering making changes to one or more of its employees’ contracts of employment; and
• envisages that, if the employee and/or their representative does not agree to some or all of the changes, it might opt for dismissal and re-engagement in respect of that employee.

The Code will not apply where the reason for any potential dismissal is redundancy. However, it will still apply if the employer dismissal and re-engagement is being considered as a potential alternative to a redundancy dismissal.

What does the Code tell us? 

The Code sets out the step-by-step process which employers should follow in these circumstances, in order to explore alternatives to dismissal. 

This includes engaging in meaningful consultation with trade unions, employee representatives and/or affected employees, with an emphasis on consultation as soon as possible and for as long as possible, as well as sharing as much information as the employer reasonably can as part of this process. 

In particular, the Code suggests that employers should undertake an analysis of why the proposed contractual changes are needed, including (but not limited to):

• The objectives it is seeking to achieve. 
• The negative consequences of imposing the changes with the employee’s agreement.
• Whether its plans carry any risk of discriminatory impacts. 
• Whether there are any alternative ways of achieving the same objectives. 

The Code requires employers to act responsibly and to contact Acas for advice where dismissal and re-engagement is being considered as a potential option, before this is discussed with staff. 

It also encourages giving employees as much notice of dismissal as reasonably practicable (even beyond their notice entitlements). It also suggests practical support which might be offered, such as career coaching or counselling. 

Does this mean the end of “dismissal and re-engagement”?

The Code does not prohibit dismissal and re-engagement and does not make any significant changes to the existing legal framework in this area, other than the new requirement to contact Acas for advice. 

However, it is clear that imposing contractual changes without the employee’s agreement (including any dismissal and re-engagement) should be a last resort, and only after the employer has undertaken the steps set out in the Code. 

The Code also states that the employer should not use threats of dismissal to put pressure on staff to agree proposed changes to contractual terms (unless dismissal and re-engagement is genuinely being considered as an option). 

There will be no standalone cause of action for failure to follow the Code. However, failure to follow the Code could result in an uplift of up to 25% of compensation awarded in a relevant claim. 

What does this mean for my organisation? 

Your organisation may already be doing many of the steps set out in the Code, and significant changes to existing procedures may not be required. Nevertheless, we would recommend that you review your existing procedures and consider whether changes are needed to ensure compliance with the Code.

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If you would like advice on any of the topics discussed within this edition of Employment Eye, or if you think your organisation would benefit from training or any other assistance, please do not hesitate to contact the Employment Team, who will be happy to help.