Employment update on preventing sexual harassment and the Employment Rights Bill

Despite Christmas being just around the corner, updates in employment law show no signs of slowing down. This article highlights important amendments being proposed to the Employment Rights Bill and summarises the new templates published by the Equality and Human Rights Commission (EHRC) relating to the recently implemented duty to prevent sexual harassment. 

Amendments to the Employment Rights Bill

In October, the Government published its landmark Employment Rights Bill – covered in detail here. Seven weeks later, the Government has released an Amendment Paper, containing proposed updates to the Bill.

It was always ambitious for the Government to publish such a substantial piece of legislation within its first 100 days, and many of these amendments aim to fix technical points or inconsistencies in the Bill before it becomes law. 

However, one entirely new reform, which will have a considerable impact on employment practices, is the extension of time limits for bringing Employment Tribunal claims. The Government proposes doubling the time limit for bringing all Tribunal claims from three months to six months (which will include discrimination, unfair dismissal and whistleblowing claims). Although this reform did not feature in the original Employment Rights Bill, it was included in Labour’s Make Work Pay document which the Government has committed to implementing in full, so it is perhaps not surprising to see its introduction now. 

This change will provide employees with significantly more time and flexibility to bring a claim. Arguably it may also allow both parties greater opportunity to explore internal procedures and resolution without quite the same time pressure as there is now. However, when viewed alongside the removal of the unfair dismissal qualifying period, it is also likely that we will see increased uncertainty for employers and a higher number of claims overall.

Other reforms proposed by the Government in the Amendment Paper include:

• Length of "initial period of employment": as part of the Government’s plan to make unfair dismissal a day one right, it intends to introduce an "initial period of employment" during which a less onerous procedure for dismissal is anticipated. The Amendment Paper confirms this initial period will be between three to nine months.  
• Payment for shift cancellations: further clarity is provided about short notice cancellation or curtailment of shifts, including giving the Tribunal discretion over whether to order compensation and the amount payable. 
• Gender equality: the definition of “matters related to gender equality” is expanded to include menstrual problems and menstrual disorders. These will now need to be included in any equality action plans required by large employers.
• Trade union access: it is confirmed that access rights will not extend to workplaces which are also dwellings.

The Amendment Paper also includes reforms put forward by individual politicians, rather than by the Government itself. The main one proposes to make a non-disclosure agreement invalid if it tries to stop a worker from making a disclosure about harassment (including sexual harassment). A second proposal aims to prohibit the use of substitution clauses in employment or worker contracts. It is unclear whether these proposals have the backing of the Government, which will very much influence whether these amendments are passed.

Prevention of sexual harassment: new EHRC templates

The EHRC has recently published three templates in relation to the new positive duty to prevent sexual harassment at work. These supplement the EHRC’s updated technical guidance on harassment and its 8-step guide for employers. Details about these can be found here.

The templates include a checklist, an action plan, and a monitoring log which can be accessed here. The EHRC explains that the templates are intended to complement employer’s current HR policies and to assist organisations in protecting their workers. Given the need for employers to demonstrate they are taking "reasonable steps" to prevent sexual harassment, it would be advisable to review the templates and consider if any recommended steps could apply to their workplaces.

The checklist is designed as a guide for employers to enable them to take steps to prevent sexual harassment. Although principally drafted for the hospitality sector, with references to "shifts", the EHRC states that it can be adapted to suit any workplace. The main areas the checklist covers are communicating with staff, changing the work environment, and working practices.

The action plan can be used to outline what actions employers will take in order to implement the checklist, such as updating policies and making staff aware of them, or giving training on what to do if sexual harassment happens.

Finally, the monitoring logs are intended to be used to monitor how the checklist and action plan are being deployed. The EHRC suggests employers complete an in-depth log every quarter to help record and assess the efficacy of the steps that have been taken.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2024