Monthly Highlights – UK Employment Law – September 2024

Here is a look at recent developments in UK employment law:

1. There will be a new proactive duty on employers to “take reasonable steps” to prevent sexual harassment of their employees, effective 26 October 2024.
2. The Employment Appeal Tribunal held that English nationalism is not a protected belief under the Equality Act 2010.
3. The Employment Tribunal found that the promotion of a minority ethnic employee without any competitive process was unlawful positive discrimination.

The Recent Developments in More Detail

1. There will be a new proactive duty on employers to “take reasonable steps” to prevent sexual harassment of their employees, effective 26 October 2024.

The Worker Protection (Amendment of Equality Act 2010) Act 2023 (the “Act”) will come into force on 26 October 2024 and will require employers to take proactive steps to prevent their workers from being sexually harassed at work.

Currently, the law provides a defence to a harassment claim if an employer can show that it took all ‘reasonable steps’ to prevent the harassment from happening. While it is currently advisable for employers to take such steps, there is no actual positive requirement to do so.

What’s New?

Under the Act, employers will have a legal obligation to take ‘reasonable steps’ to prevent sexual harassment in the workplace.

The Act does not provide any guidance as on the meaning of ‘reasonable steps’. However, the Equality and Human Rights Commission’s (EHRC) technical guidance on sexual harassment in the workplace states that whether an employer has taken ‘reasonable steps’ will be an objective test and will depend on the facts and circumstances of each situation. It further states that an employer should: consider the risks of sexual harassment occurring in the course of employment and the steps it could take to reduce those risks and prevent sexual harassment of their workers. Other factors that may be relevant include: the size of the employer, the nature of the workplace, the risks present in that workplace, etc. It therefore appears that more will be expected of larger employers.

Key points to note are:

• The new duty is an anticipatory duty, so employers should anticipate scenarios when their workers may be subject to sexual harassment in the course of employment and take preventative action. We recommend conducting (and monitoring and updating) risk assessments of potential situations in which sexual harassment may arise and then taking steps to address those specific risks.
• The new duty only applies to sexual harassment. It does not apply to harassment based on other protected characteristics such as disability, race, religion or belief, age, sex, sexual orientation, gender reassignment, pregnancy and maternity, marriage or civil partnership.
• The new duty also requires employers to take reasonable steps to prevent sexual harassment of workers by third parties, such as clients and customers. Although the preventative duty includes third party harassment, a worker cannot bring a stand alone claim in the employment tribunal for third party harassment, the EHRC could still take enforcement action against the employer for such incidents.
• A claim for breach of the new duty can be made in the Employment Tribunal, but it must be ‘attached’ to a claim for sexual harassment (i.e. it cannot be a free-standing claim). If an employee succeeds in a claim for sexual harassment, and the employer is found to have breached its duty to take reasonable steps to avoid the sexual harassment, the Employment Tribunal will be able to uplift compensation by up to 25% (equivalent to the uplift for failure to follow disciplinary or grievance Codes of Practice).
• Separately, the Equality and Human Rights Commission will have powers to enforce the duty and so will be able to take enforcement action against organisations that are in breach of the new duty.

Key Steps for Employers

Because the new duty is an anticipatory duty, employers should act now before any incidents of sexual harassment occur. Employers should proactively identify situations where its workers may be subject to sexual harassment in the course of employment and implement measures to prevent harassment taking place. Employers should:

• Update policies. In light of the new duty, it is best practice for employers to have a separate policy for reporting harassment/sexual harassment (distinct from cross-referring to the grievance procedure) and ensure that a thorough investigation is conducted when investigating any complaint. It would also be prudent to include a section in the harassment policy about social work evens and conduct outside of work, including on social media, that may impact an employee’s working relationships and suitability to carry out their role. Employers should also consider updates to privacy policies and notices to ensure that the processing of any data relating to harassment is proportionate and adequately safeguarded including restricting the number and level of individuals who have access to any harassment data. It is important that any privacy notice includes the right to monitor employee communications including on instant messaging platforms such as Slack and Teams for the purposes of investigating employee complaints (including harassment complaints).
• Provide training. Training should be given at the outset of employment for new joiners, at regular intervals for all staff, and at the time of promotion to a managerial role. Training should also be provided in person periodically to reinforce online training and provide more interactive learning. Employers should also consider tailoring training for different levels of employees. For example, managers may need training on how to deal with complaints of harassment, calling out harassment and how to conduct themselves as senior employees. On the other hand, other staff may benefit from training on the definition of sexual harassment, examples and the procedure for reporting such behaviour or intervening if they witness such behaviour. Attendance logs should be kept for each training session.
• Conduct risk assessments. Make sure to conduct a risk assessment specific to your business and keep a record of identified risks of sexual harassment in the workplace and mitigation steps. Risk areas may include:
  • Whether there is an environment where senior individuals work regularly with more junior individuals, particularly on a 1-2-1 basis;
  • Whether there is a culture of overtime/late nights;
  • The social and networking environment relevant to an employee's role, including whether there are events with the presence of alcohol;
  • Lack of diversity in the workforce;
  • Individuals being placed on secondment;
  • Whether individuals are routinely in the presence of third-party/ non-employees e.g. clients/ customers, suppliers etc. and in what context.
• Take action before work events. Email staff before key social events reminding them about appropriate conduct and the employer's policy of harassment, and consider appointing a "responsible person(s)" for each event to oversee risk areas/inappropriate conduct and stay until the conclusion of the event.

The Equality and Human Rights Commission has published a helpful 8-step guide for employers to follow to prevent sexual harassment at work.

2. The Employment Appeal Tribunal held that English nationalism is not a protected belief under the Equality Act 2010.

In the case of Thomas v Surrey and Borders Partnership NHS Foundation Trust, the Employment Appeal Tribunal held that an Employment Tribunal was right to find that a worker’s belief in English nationalism was not a protected belief under the Equality Act 2010.

The Facts

• The claimant, employed through an agency as a consultant for the NHS, was dismissed after the agency discovered that he had failed to declare an unspent conviction.
• However, the claimant alleged that the real reason for his dismissal was due to his political affiliation with the English Democrats party, for which he had previously stood political office for. The claimant therefore brought a claim in the Employment Tribunal for discrimination on the grounds of religion or belief.
• The respondents denied his political affiliation was the reason for his dismissal – and denied that his beliefs were protected by the Equality Act 2010.
• The claimant argued that his belief in English nationalism should be protected because he had invested time, money and his personal image and name in promoting the ideology.
• In the case of Grainger plc v Nicholson 2010, the Employment Appeal Tribunal established criteria for determining whether a belief qualifies as a 'philosophical belief' protected under the Equality Act 2010. They held that to be protected, a philosophical belief must:
  1. Be genuinely held;
  2. Be a belief, not merely an opinion or viewpoint based on the present state of information;
  3. Concern a weighty and substantial aspect of human life and behaviour;
  4. Attain a certain level of cogency, seriousness, cohesion, and importance; and
  5. Be worthy of respect in a democratic society, compatible with human dignity, and not conflict with the fundamental rights of others.
• The Employment Tribunal held that although the claimant’s belief met much of the criteria for protection under the Equality Act 2010, his belief also included anti-Islamic beliefs. As such, the Employment Tribunal held that his belief did not meet the fifth criteria in Grainger.
• The claimant appealed.

The Findings

• The Employment Appeal Tribunal agreed with the Employment Tribunal, finding that while political beliefs including those related to nationalism could be protected under the Equality Act 2010, the protection has limits. Particularly, the belief must be ‘worthy of respect in a democratic society’ and must not infringe upon the fundamental rights of others. The Employment Appeal Tribunal found that the claimant’s anti-Islamic beliefs violated these principles and could not be protected under the guise of a philosophical belief.
• Further, the Employment Appeal Tribunal referred to Article 17 of the European Convention on Human Rights (ECHR), which prohibits the abuse of human rights protections to undermine the rights of others. It concluded that the claimants’ anti-Islamic beliefs crossed into the realm of hate speech, which is not protected under the ECHR or the Equality Act 2010.

Key Takeaways

This judgment demonstrates that while individuals may hold controversial or unpopular views, not all beliefs will be protected under the Equality Act 2010. Instead, the protection is only afforded when such beliefs do not conflict with the fundamental rights of others or human dignity.

3. The Employment Tribunal found that promotion of a minority ethnic employee without any competitive process is unlawful positive discrimination.

In Turner-Robson and ors v Chief Constable of Thames Valley Police, an Employment Tribunal considered whether a respondent had unlawfully discriminated against three white police officers who were not given the opportunity to apply for a detective inspector vacancy.

The Facts

• When a job vacancy arose for a detective inspector role, it was filled by a minority ethnic officer before it was advertised to other potential candidates. The minority ethnic officer was part of the respondent's "Positive Action Progression Scheme” – a program that aims to fast-track officers from ethnic minority backgrounds.
• The claimants brought claims of direct discrimination on the grounds of their race.

The Findings

• The Employment Tribunal upheld the claims, finding that the respondent had failed to carry out a balancing exercise to determine whether positive action was proportionate.
• The ethnic minority candidate was automatically given the role without any real thought or consideration to other candidates. As such, the respondent’s actions went beyond positive action and veered into the realms of positive discrimination. The claimants (who did not share the successful candidate's protected characteristic of race) were disadvantaged insofar that they were denied the opportunity to apply for the role. The Employment Tribunal held that this was not a proportionate means of achieving a legitimate aim.

Key Takeaways

This case serves as a reminder of the very strict limits on lawful positive action and the complexity of this area of law. Employers looking to rely on positive action in recruitment or promotion decisions should tread carefully and seek advice on whether competitive recruitment exercises are necessary before making decisions.