Employment Law Updates

Duty to prevent sexual harassment

Section 26(2) of the Equality Act 2010 (“EqA 2010”) provides protection against sexual harassment. Under section 109(4) of the EqA 2010, it is currently possible for an employer to defend a harassment claim if it can show that it took all reasonable steps to prevent it from happening. If an employer cannot prove that they took all reasonable steps, they will be vicariously liable.

However, from 26 October 2024, section 40A of the EqA 2010, inserted by the Worker Protection (Amendment of EqA 2010) Act 2023, will come into force placing a positive duty on employers to take reasonable steps to prevent sexual harassment of its employees in the workplace. As section 40A is silent as to the limit of the duty, it may also now include preventing sexual harassment by third parties, for example, suppliers or clients of the company.

Whether an employer has taken all reasonable steps to prevent sexual harassment will be an objective test, and depend on the size and nature of the employer, the resources available to it, and the risk factors needed to be considered within the employer or sector.

It is important to note that the EqA 2010 will not place a positive duty on employers to take reasonable steps to prevent harassment with respect to other protected acts such as disability, religion, age or race.

Right to switch off

In their manifesto, the Labour Government made a promise to introduce “the right to switch off”, stating that “the right to switch off when outside work is key to productivity and could boost the UK’s economic growth.”

It has now been reported that the Government is considering introducing the new right through the ACAS Code of Practice (“the Code”). Introducing the new right through the Code would mean that individuals cannot rely on their employer’s failure to adhere to the right as the single reason for giving rise to a claim. However, it would mean that failure to follow the right, would amount to a failure to follow the Code and could be considered when deciding the level of compensation awarded in Employment Tribunal claims. Failure to follow the Code can result in an increase of compensation awarded by up to 25%. It is unclear how severe the breach must be to impact the level of compensation awarded; it may be that only repeated failures are sufficient.

It is also unclear how this would work in practice because many employers rely on their employees being available outside of working hours and being available is part and parcel of their job description. For example, doctors being on call. It may be that on joining a new company, employees positively consent to be contacted outside of working hours with the ability to withdraw their consent at any point.

In Ireland, a Code of Practice was introduced that put an obligation on employers to liaise with employees and unions on a “right to disconnect” company policy which would expressly set out the circumstances when employees can be contacted outside of hours. In Belgium, companies exceeding 20 employees have policies in place on the right to disconnect.

Right to four day working week

It is possible that the Labour Government may also introduce a new right for workers to demand a four-day working week. This right wouldn’t mean that workers are working less, it would just mean that they are doing five days’ work over four longer days. For example, 10 hours a day for four days, instead of eight hours a day for five days.

Whilst workers have had the right to ask for flexible working from day one of starting a new job since April of this year, employers do not have to agree, they merely must deal with requests in a reasonable manner.

In some sectors, it is unclear how this would be possible. For example, the NHS. The right to a four-day working week must be sustainable for both employers and employees.

Both the practicalities of the right to switch off and the right to a four-day week will become much clearer when the Government’s draft Employment Bill is published in October.

For further information or to discuss a potential employment law or discrimination claim, please contact our specialist employment solicitors on 0207 3950 5234 or info@rllaw.co.uk. We are ranked as a ‘Leading Firm’ in the Legal 500 and Chambers and Partners independent guides to the UK Legal Profession.

3 September 2024