Employment Law Updates

Employment law is on the cusp of significant change which will affect all employers– from the introduction of the new Employment Rights Bill, said to amount to the “biggest upgrade to workers’ rights in a generation”, to further guidance from the Tribunal on gender critical rights, and key upcoming changes in relation to the prevention of sexual harassment at work. In this update we explore these issues and the implications for organisations.

LGBTQ+ charity, Stonewall did NOT induce acts of discrimination against criminal barrister for her gender-critical beliefs

On 24 July 2024, the Employment Appeal Tribunal issued its judgment in the case of Bailey v Stonewall Equality Ltd and others [2024] EAT 119.

Ms Bailey is a criminal law barrister and tenant of Garden Court Chambers (GCC). In November 2018, GCC joined a Diversity Champions programme run by the LGBTQ+ charity, Stonewall. Ms Bailey objected to this on the basis that Stonewall promoted “trans extremism”. In October 2019, Ms Bailey set up an association based on her gender critical principles and expressed her views in relation to this on social media. GCC subsequently received complaints about Ms Bailey’s statements, including from Stonewall. GCC publicly tweeted that it would launch an investigation into Ms Bailey and upheld the complaint.

Following this, Ms Bailey brought a claim against GCC alleging that she faced discrimination for her gender-critical beliefs. Ms Bailey also alleged that Stonewall had influenced or attempted to influence GCC’s actions against her, contrary to section 111 of the Equality of Act 2010.

While the Employment Tribunal found that the GCC did directly discriminate against Ms Bailey it determined that GCC had not been directed by Stonewall in its handling of the complaints against Ms Bailey. ​While Stonewall had complained about Ms Bailey’s conduct, this complaint was not sufficient to amount to an inducement of action taken by GCC. Ms Bailey appealed this finding.

The EAT upheld the Tribunal’s decision and concluded that Stonewall did not induce GCC to discriminate against Ms Bailey for expressing her gender-critical beliefs and it was not fair, reasonable or just to find Stonewall liable in this case.

This is a significant case as there are no other reported authorities which directly address what is meant by “causing” or “inducing” discrimination in the context of section 111 of the Equality Act 2010.   Businesses should consider the potential risk of liability under this section in the course of public campaigns, lobbying and advocacy activities.

Preventing sexual harassment at work – get technically prepared!

This month the Equality and Human Rights Commission (EHRC) has launched a consultation on the updated technical guidance for the new legal duty to prevent sexual harassment in the workplace. This duty, established by the Worker Protection (Amendment of Equality Act 2010) Act 2023, will come into effect on 26 October 2024 inserting a new section into Equality Act 2010. The guidance aims to help employers understand their obligations under this new requirement.

Key aspects of the updated guidance include:

• Preventative Duty: employers are required to take proactive steps to prevent sexual harassment of their employees. This duty is anticipatory, meaning employers must act before any incidents occur, rather than waiting for complaints.
• Third-Party Harassment: although the new legislation does not explicitly cover harassment by third parties, the guidance emphasises that employers should also take reasonable steps to protect employees from such risks.
• Reasonable Steps: the guidance outlines that what constitutes “reasonable steps” will vary depending on factors such as the size of the employer, the sector, and available resources. Employers need to assess risks and implement measures tailored to their specific circumstances.
• Enforcement: the EHRC will have the authority to enforce compliance, including investigating employers and issuing notices of unlawful acts if breaches are found. Employers who fail to comply risk a compensation uplift of up to 25% in successful harassment claims.

It is advisable that employers review and update their current strategies on sexual harassment prevention. Particularly for employers in the third sector, whose employees may be more active in communities and where the risks of reputational damage in relation to discrimination and harassment claims are high, consideration should be given to the reasonable steps which can be taken to protect their employees from risks of sexual harassment by third parties in the course of their employment.

Unfair dismissal claims for everyone?

While there are many headline grabbing proposals in Labour’s Employment Rights Bill, its plans to make an unfair dismissal claim a day-one right for employees may have a particularly significant impact. Currently, the eligibility to bring an unfair dismissal claim is two years and so employers have a degree of flexibility in relation to dismissing an employee who has less than two years’ service.

If the day one right is implemented, employers will have to ensure, in all cases, that they are carrying out a fair procedure and that the dismissal is for a fair reason.  A consequence of this potential new right could be an influx of unfair dismissal claims and in turn, a significant increase in the cost to employers as they are forced to respond to these claims. For employers, it may be prudent to consider whether disciplinary procedures are robust to limit litigation risk and review the level of funding allocated to responding to these types of claims.

Conclusion

Employment law looks set to continue to change, in some instances quite significantly, over the coming months and years. As always, the key to avoiding inadvertently falling foul of the changing legal position is for employers to ensure that they are aware of what is coming and are pragmatic and open to adapting. Employers should proactively update their policies and procedures to navigate the shifting legal landscape and mitigate potential risks.

You might also be interested in –

• Trustee Disqualifications for the Captain Tom Foundation 
• The Post-Investigation Period for Employers 
• Club HR: New Employer Duty to Prevent Sexual Harassment 
• Reducing the Cost of Workplace Conflict 

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