Progress report on upcoming legal changes

  • Discrimination
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Peninsula Team, Peninsula Team

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Even though a wave of new rights and modifications to existing laws have only just taken effect in April, there are even more legal changes on the way in 2024. Here we look at where we are with the new law on sexual harassment and the new statutory Code of Practice on Dismissal and Re-engagement.

Sexual harassment

Sexual harassment is unwanted conduct of a sexual nature, which has the purpose or effect of violating the dignity of a worker, or creating an intimidating, hostile, degrading, humiliating or offensive environment.

It could include the following:

·       Sexual comments or jokes

·       Suggestive looks, staring or leering

·       Propositions and sexual advances

·       Sexual gestures

·       Sexual posts or contact on social media

·       Spreading sexual rumours about a person

·       Unwelcome touching, hugging, or kissing

The new Worker Protection (Amendment of Equality Act 2010) Act 2023 is expected to come into force in October 2024.

Once implemented, it will introduce a proactive duty on employers to take reasonable steps to prevent sexual harassment of their employees. Currently, the only time an employer needs to demonstrate that they have taken reasonable steps is when defending an employment tribunal claim for harassment. Once the new Act is in force, however, an organisation could be asked by the Equality and Human Rights Commission (EHRC) to demonstrate that it takes reasonable steps to prevent sexual harassment, at any point, regardless of whether an employment tribunal claim has been brought or not.

If a sexual harassment claim is made and is successful, the Act will also give tribunals the power to uplift the compensation by up to 25% where the employer has failed in their duty to take reasonable steps to prevent sexual harassment.

This naturally raises the question, what are reasonable steps to prevent sexual harassment? The EHRC has confirmed that they will be updating their technical guidance to set out steps that employers should take to comply with the new duty. It is likely that reasonable steps will include, for example, regular training, transparent and simple reporting procedures, as well as taking action after a complaint has been made, where appropriate. Having a policy which sets outs the organisation’s stance on sexual harassment will also be needed, but before employers can draft any such policy, the EHRC updated guidance is needed first.

What do I do if an employee says they're being sexually harassed?

Who is liable for sexual harassment at work?

Statutory Code of Practice on Dismissal and Re-engagement

Dismissal and re-engagement, also known as ‘fire and re-hire’, is the practice of forcibly changing terms and conditions by dismissing an employee and then re-engaging them on new terms. It is not of itself an unfair practice but because the process involves a dismissal, it is subject to the usual rules on fair dismissals.

Following the news that in early 2022, P&O Ferries dismissed hundreds of employees, the Government released a draft statutory Code of Practice on dismissal and re-engagement. Following a period of consultation, the draft Code was updated, and the final version is now being debated through Parliament.

The aim of the Code is to ensure that employees are not simply threatened with dismissal as a way to obtain agreement to contractual changes. It encourages a greater level of consultation with the objective of making sure that employees are treated fairly during the process. Once in force, where relevant, the tribunal will consider whether or not the Code has been followed. The tribunal will then have the power to increase any award by up to 25% if the employer has unreasonably failed to comply with the code.

Subject to parliamentary approval, the Code is expected to be in force from 18th July 2024.

Can I fire and rehire?

What does the draft code of practice on fire and re-hire say?

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