Employers responsibilities Archives

2024 Election: Conservatives’ proposed reforms to anti-discrimination legislation

Posted on 19 June 202422 March 2025 by Sarah O'Sullivan

Whilst not making it explicitly into their manifesto, the Conservatives have expressed a wish to protect the “privacy and dignity of women and girls” by defining sex as biological in the Equality Act 2010.

What does this mean for employers?

Presently, under the Equality Act, sex is not explicitly defined, but the protected characteristic of sex is covered by section 11, which states that:

“(a) a reference to a person who has a particular protected characteristic is a reference to a man or a woman;

(b) a reference to persons who share a protected characteristic is a reference to persons of the same sex.”

Sex is, therefore, under the current legislation, understood to be binary and the same as that recorded on an individual’s birth certificate. However, the legislation does not guide how individuals who have transitioned should be treated.

Whilst primarily focused on those changing gender, the Gender Recognition Act 2004 (“GRA”) attempts to clarify the status of those in possession of a gender recognition certificate (“GRC”). Section 9(1) GRA states that where a GRC is issued to a person, then:

“if the acquired gender is the male gender, the person’s sex becomes that of a man, and if it is the female gender, the person’s sex becomes that of a woman.”

However, section 9(3) adds a proviso that section 9(1) is subject to provisions made in any subordinate legislation. As the Equality Act fails to make clear that it triggers section 9(3), there remains a lack of clarity regarding the treatment of trans men and women.

As a result, there is still a grey area and a discrepancy between those who have a GRC and those who do not. With waiting times for NHS gender identity clinics now reaching more than five years, and combined with the requirement for individuals to provide evidence of living in their affirmed gender for two years, this process is lengthy and means that there are likely many people who never receive a GRC and the additional legal protections it confers.

Amending the act to clarify the definition of sex and to address questions about trans status could provide greater certainty to employers and service providers alike. The Equality and Human Rights Commission has also recommended that the “sex” should be defined as biological sex for the purposes of the Equality Act. In her letter to Ms Badenoch, the Chairwoman of the EHRC identifies 8 areas in which such a definition would provide clarity:

pregnancy and maternity;
freedom of association for lesbians and gay men;
freedom of association for women and men;
positive action;
occupational requirements;
single sex and separate sex services;
sport; and
data collection.

However, such a change would not be a definitive solution. Complexities around discrimination would not necessarily be eradicated by simply adding an explicit definition of sex within the Equality Act.

Both direct and indirect sex discrimination would be affected by the change as it would reverse potential claims, i.e. trans women would no longer be able to bring claims as women, thus transferring the right to bring a claim for sex discrimination.

Whilst sex may be defined as biological, having the effect of preventing individuals from bringing certain claims for discrimination, those who identify as trans are still going to be protected by the Equality Act. The Equality Act presently makes provision for nine protected characteristics, including:

age;
disability;
gender reassignment;
marriage and civil partnership;
pregnancy and maternity;
race;
religion or belief;
sex; and
sexual orientation.

An individual will still be able to bring a claim in relation to any of these characteristics if they can demonstrate that they have been directly or indirectly discriminated against. Section 7 of the Equality Act defines that an individual is eligible for the protected characteristic of gender reassignment if they are “proposing to undergo, [are] undergoing or [have] undergone a process (or part of a process) to reassign the person’s sex by changing physiological or other attributes of sex”.

The employment tribunal in Taylor v Jaguar Land Rover Ltd considered the criteria to satisfy section 7. It was held that there was a broad range of scenarios under which an individual would be covered by the Act. It confirmed that there is no need for an individual to have undergone any surgical procedures and that an individual need only be “actively considering”, “intending to”, or “deciding to undergo gender reassignment” to be protected from discrimination. The case also highlighted that the courts are open to considering those who identify as non-binary or genderfluid as protected under the gender reassignment provisions of the Equality Act.

Whilst we do not know whether any changes will be made, we would recommend that it is best practice for employers to continue to keep their policies under review and updated to ensure that no group are being discriminated against. Employers are under a duty to take all reasonable steps to prevent discrimination. They should, therefore, consider whether there are further steps they could take to ensure that their workplace is fit and welcoming for all employees.

An employer may wish to take a range of actions, including consulting any transitioning individuals to understand their needs and concerns, encouraging sensible and understanding workplace behaviour, and conducting equality impact assessments before implementing new policies and procedures.

Election 2024: What’s in store for employment law?

Posted on 7 June 202422 March 2025 by Sarah O'Sullivan

Ahead of the upcoming election on Thursday, 4 July, Alex Haines examines the major parties’ proposals for employment law reforms.

In this first instalment Alex looks at Labour’s proposals to create a single status of worker and the Conservatives’ continuing efforts to reform trade union legislation and what this could mean for businesses and individuals.

Labour – Single Status of Worker

Worker? Employee? Self-employed? In today’s economy, and especially in the gig economy (with temporary, flexible, or freelance jobs), it can be difficult to distinguish an individual’s legal working status.

The current definitions of workers and employees have been criticised in recent years for lacking clarity and not being applicable to the modern gig/platform-based economy.

Labour has proposed creating a system with two employment statuses: worker (inclusive of “employees”) and genuinely self-employed.

Under the Employment Rights Act 1996, an employee is defined (under section 230 of the Employment Rights Act 1996) as an individual who has entered or works under a contract of employment (service or apprenticeship, express or implied, oral or in writing).

Meanwhile, a “worker” is an individual who has entered into or works under either an employment contract or any other contract (our emphasis). The individual undertakes to do or to perform personally any work or services for another party to the contract whose status is not, by virtue of the contract, that of a client or customer of any profession or business undertaking carried on by the individual.

The distinction is potentially confusing but legally important. Workers enjoy some protections, including those under the minimum wage and common law duties of care; employees are afforded additional protections and rights, including:

being covered by the ACAS Code of Practice on Disciplinary and Grievance Procedures;
rights when transferred under TUPE (albeit note that the definition of employee has, confusingly, been wider than under other legislation);
statutory maternity pay (SMP);
statutory paternity pay (SPP);
statutory adoption pay (SAP);
shared parental pay (ShPP);
statutory parental bereavement pay (SPBP);
parental leave;
shared parental leave (SPL);
shared parental bereavement leave (SPBL);
ordinary maternity leave (OML);
additional maternity leave (AML);
right to request flexible working;
statutory sick pay (SSP);
not to be refused employment because of membership or non-membership of a trade union;
various rights to paid and unpaid time off;
statutory minimum notice periods;
protection from unfair dismissal;
statutory redundancy payments, and
the right to collective redundancy consultations.

As with many pre-election policies, the details of Labour’s proposal are scant at present. Labour has promised to simplify the definitions and create a two-tiered system of worker and genuine self-employed. This change might help to reduce the backlogs in the Employment Tribunal by reducing the need for hearings on individuals’ employment status. However, whilst this policy may reduce one layer of litigation, it alone will not reduce such delays.

It appears likely that Labour would plan to afford workers the same rights as employees and protections. This may offer greater certainty to individuals (and businesses) as to the status and rights of those providing services, one way or another.

Labour also says they “will also clamp down on bogus self-employment.” There is care here to avoid penalising those individuals who have actively chosen to be genuinely self-employed. For many, being self-employed may be a conscious choice that offers them freedom and independence from the bounds of a traditional employment contract.

Such a substantial realignment of employment rights will require significant thought, lengthy consultation, and careful implementation. Any changes will unlikely occur within Labour’s first 100 days in office and will be subject to scrutiny and refinement.

Nevertheless, it is good practice for employers to review their current employment contracts and consider whether there are individuals whose status has inadvertently been miscategorised. The documentation should reflect the parties’ intentions and the reality of the working relationship. If not, this will always be susceptible to challenge, as in the leading case of Autoclenz Ltd v Belcher.

Where the documentation does not reflect the party’s intentions or reality, we recommend employers update and correct contracts and working arrangements as appropriate.

It may also be prudent for an employer to undertake a higher-level review of their working arrangements to identify whether new arrangements are needed to provide both parties with greater certainty.

Conservatives – Trade Union Reform

The Conservatives have not been as forthcoming with their employment law proposals for the upcoming election. However, the introduction of the Strikes (Minimum Service Levels) Act 2023 merits mention.

Strikes (Minimum Service Levels) Act 2023 (“Strikes Act”)

This Act attempts to mitigate against the disruption caused by strike action by requiring minimum service levels to be maintained, most notably in the health, transport, education, fire and rescue, and border control services.

The Act has proved controversial, with the Public and Commercial Services Union (“PCS”) being granted permission to initiate a Judicial Review of the Act. The PCS claim that the law is an infringement of Article 11 of the European Convention on Human Rights (“ECHR”), which enshrines the right to freedom of peaceful assembly, association with others, and the right to form and to join trade unions. Any restrictions that are to be imposed on this right must be in the interests of national security or public safety and must be necessary and proportionate.

Other countries, including France, Spain, and Ireland, also have minimum service legislation to ensure that minimum standards are met in certain sectors. However, there are often requirements for employers to enter into agreements with the union following consultations. The Strike Act does not appear to require any specific negotiations between the employer and union to establish a mutually agreed service level. Instead, the Secretary of State can specify the minimum service levels for the sectors, having consulted “such persons as the Secretary of State considers appropriate”. How this will work in practice remains to be seen, but enabling such government intervention may cause concern that unions will not be adequately consulted and that the right to strike will not be respected.

Under the Strikes Act, the employer can, following consultation with the union, serve a “work notice” on the union, detailing which workers are required to work and what they are required to do. If the union fails to take reasonable steps to comply with the notice, it will lose its immunity from tort claims by the employer.

Repeal of Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003

In addition to legal challenges over the Strike Act, the Conservatives could revive their efforts to repeal regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (“the Regulations”), which prevents employment businesses from introducing or supplying agency workers to cover strike action.

The Conservatives previously repealed regulation 7 in 2022, however this repeal became subject to a judicial review which was heard by the High Court on two grounds.

That the Government failed to comply with their statutory duty to consult before making the 2022 Regulations that repealed regulation 7.
In repealing Regulation 7, the Government breached Article 11 of the ECHR, which prohibits unlawful interference with the rights of trade unions and their members.

The High Court ruled that the Government had failed to consult bodies representative of the interests concerned. Whilst the Government contended that the consultations in 2015 were sufficient, the High Court held that, as circumstances had changed since this consultation and the implementation of the repealing legislation. Moreover, the High Court ruled that the Government had not considered the outcome of the 2015 consultations when considering whether to repeal Regulation 2.

As a result, we may see the Conservatives seek to run a fresh consultation on repealing regulation 2. However, as the second limb of the Judicial Review was not considered, further uncertainty will remain over the enforceability of any repeals in the context of human rights legislation.

When should Non-Disclosure Agreements be used?

Posted on 20 April 202422 March 2025 by Sarah O'Sullivan

A Non-Disclosure Agreement (NDA) is a legal contract used to prevent people from discussing confidential information. In employment law they are often parts of a contract, or sometimes a standalone contract between employees and their employer.

Typically NDAs prevent employees and former employees from making information public, they can sometimes be referred to as ‘gagging orders’ or ‘confidentiality agreements’ or may be included within a settlement agreement when leaving employment.

Why use a Non-Disclosure Agreement?

NDAs have a valid use to protect commercially sensitive information such as inventions, ideas or anything that may damage a company’s reputation. They may be signed for instance by parties contemplating the sale and purchase of a business.

The Women and Equalities Select Committee (WESC) has recently published a report addressing the issues and is specifically concerned by the use of gagging clauses to settle discrimination and harassment claims, arguing that it means that these cases are not being properly investigated and that they cause an imbalance of power between employer and employee to the detriment of the employee.

What does a Non-Disclosure Agreement cover?

NDAs cannot stop an employee’s reported alleged illegal acts. If a manager or colleague faced allegations of or fraud, for instance, reporting these to the police would not be prevented.

Allegations of an employer making inappropriate comments, or bullying could be covered. However bullying may be illegal if it relates to certain protected characteristics such as race, religion, age, disability or sexual orientation.

The length of time for which an NDA applies will vary for each agreement.

Call our specialist solicitors on 0808 231 1320

Are Non-Disclosure Agreements legally binding?

The contracts are legally binding so that if you are a victim and you sign one, receiving a financial pay-out, you are prevented from talking to anyone about the allegations.

Can a Non-Disclosure Agreement be broken?

If you breach a valid, legally compliant NDA, then it is classed as breaching a contract, leaving you liable to legal action.

If a company thinks it is likely the NDA is going to be breached, then they can apply for an injunction. If you then breach an injunction, this is a criminal offence, and can lead to a fine or jail for those found guilty.

What if an employer wants to settle a discrimination case?

It is common to settle disputes, including for discrimination by settlement agreements. These can include confidentiality provisions but must not prevent whistleblowing or reports on criminal offences.

Do whistleblowers have legal protection?

NDAs cannot be used to prevent workers from whistleblowing. Any clause aiming to prevent you from making a valid public interest disclosure will be void.

References

These can be included in the settlement agreement and will not be contrary to an NDA or confidentiality terms.

Enforceability

Confidentiality and non-derogatory comments provisions can form valid, important parts of the deal for all parties in a transaction or settlement but must be drafted with care and in measured terms that are legally enforceable and compliant. We can assist you in advising and drafting on these.

At Tees we have a team of employment law specialists who can help you with any of the issues discussed here and provide support whether you choose to sign an NDA or contest it.

Key changes to employment law coming into effect this April 2024

Posted on 25 March 202422 March 2025 by Sarah O'Sullivan

With numerous changes to employment law coming into effect from 6 April 2024, employees and employers should remain current and prepared for the latest legal developments.

Our summary below highlights key changes that will be made to the following:

National minimum wage
Flexible working
Carer’s leave
Paternity leave
Calculating holiday pay for irregular hours and part year workers
Redundancy protection
Changes to tribunal compensation limits and statutory amounts for a weeks’ Pay

National minimum wage and national living wage

From 1 April 2024, the National Living Wage will increase to £11.44 an hour (from £10.42), and this will be adjusted to include those aged 21 and over.

The National Minimum Wage from 1 April will increase to:

£8.60 an hour (from £7.49) for workers aged 18-20;
£6.40 an hour (from £5.28) for workers under the age of 18; and
£6.40 an hour (from £5.28) for apprentices.

Employers should ensure they meet the new rates applicable. Where necessary, employers should increase employee remuneration for the first pay period after 6 April. Failure to meet the requirements may lead to staff raising grievances and/or bringing claims and/or HMRC taking enforcement action. For more complex arrangements, such as where accommodation is provided, we recommend employers take advice to ensure that they are meeting the requirements.

Flexible working

From 6 April, the right to make a flexible working application will become a day-one right for all employees. The Flexible Working (Amendment) Regulations 2023 will remove the current requirement for an employee to be continuously employed for at least 26 weeks to make an application.

Under the new legislation, employees can make two applications per year and will not have to explain the effect this change in work might have on their employer. Employers will have two months (previously three) to consult and respond to the flexible working requests.

Employers should observe the guidance on handling flexible working requests (in conjunction with the new regulations) which has been published by ACAS in their new Code of Practice which can be found at: https://www.acas.org.uk/acas-code-of-practice-on-flexible-working-requests/html

Carer’s leave

The Carer’s Leave Act 2023 will come into force on 6 April. This gives employees the right to take one week of unpaid leave per year to provide or arrange care for a ‘dependant’ who has:

– a physical or mental illness that means they’re expected to need care for more than three months;
– a disability as defined by the Equality Act 2010; or
– requires care because of their old age.

The dependant does not have to be a family member, it can be anyone who relies on the employee for care. This is another day-one right. Employees will be able to take this leave flexibly, but they can only take one week of leave every year.

Employers should ensure that managers and senior leadership understand this new entitlement and communicate the changes to employees. Employers will need to consider how this will affect any contractual and/or carer policies they might have in place, and if necessary, update their policies to cover the new right. We recommend seeking advice as appropriate to ensure that policies and procedures are compliant.

Paternity leave

Changes to The Paternity Leave Amendment Regulations 2024 will come into force on 6 April.

The Regulations (which will apply in cases where the expected week of childbirth falls on or after 6 April), will allow fathers and partners to take their paternity leave in two non-consecutive blocks of one week within the first year after the birth or adoption of their child. This change offers fathers and partners more flexibility to take leave at times which work for their family. Employers should be mindful that this new measure will only require an employee to provide four weeks’ notice prior to each period of leave.

Again, it is important that employers review their policies and processes in line with the new Regulations and update any policies and procedures as appropriate and seek advice as appropriate.

Calculating holiday pay and leave for irregular hours and part year workers

The Employment Rights (Amendment, Revocation and Transitional Provision) Regulation 2023 contains important changes to how holidays should be calculated and paid for ‘irregular-hours’ and ‘part-year’ workers (both of which have been defined in the Regulation).

From 1 April 2024, employers must adopt the accrual system for calculating leave entitlement when dealing with irregular hours or part year workers. This change means that rather than using the leave year system (i.e. 5.6 weeks leave in a given leave year comprised of 4 weeks’ annual leave and 1.6 weeks’ additional leave), they will instead get one-twelfth of their leave in each month (i.e. if a worker works for 5 days week, and is entitled to 28 days annual leave a year, after their third month of working, they would be entitled to 7 days’ leave).

Separately, for leave years starting on or after 1 April 2024, employers will also have the option to pay their irregular hours and part-year workers rolled-up holiday pay. This involves spreading a worker’s holiday pay entitlement over the year by adding an amount on top of their basic pay. Employers should notify their worker’s if they are planning to use rolled-up holiday pay, and introducing this change might involve updating contracts and any policies and procedures.

For employers, practical difficulties can arise when workers who have irregular hours do not receive the correct amount of holiday pay under the rolled-up holiday pay system. Workers may receive too much or too little depending on the number of hours worked, and the risk is that this could potentially result in claims being brought for unlawful deduction of wages. To mitigate this risk, employers need to ensure that payslips make clear what element of a worker’s pay is holiday pay and what is basic pay and ensure that they meet any requirements around clearly setting this out in the worker’s pay information.

Redundancy protection

For employees taking maternity, shared parental or adoption leave, The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 from 6 April will bring into force The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulation 2024, which will extend the priority status for these individuals being offered suitable alternative roles by their employer (if available), where they have been selected or put at risk of redundancy. The act most importantly now extends to employees who are pregnant.

The protection will be extended for up to 18 months (after the expected week of childbirth, the child’s date of birth, or adoption), for those who have recently returned to work from maternity, adoption or shared parental leave (after six or more consecutive weeks) and for employees who are pregnant and have notified their employer of their pregnancy.

Employers will need to ensure that managers and senior leadership staff are aware of the changes being made to the priority status for redeployment opportunities in redundancy situations.

Tribunal Compensation Limits and a Week’s Pay

The maximum compensatory award for unfair dismissal will increase from £105,707 to £115,115, or a year’s gross pay, whichever is lower;
The limit on one week’s pay when calculating redundancy pay (and the basic award for unfair dismissal) will be raised from £643 to £700;
The minimum basic award for some forms of unfair dismissal will rise from £7,836 to £8,533; and
The cap on statutory redundancy pay will increase from £19,290 to £21,000.

The Employment Relations (Flexible Working) Act 2023

Posted on 21 August 202322 March 2025 by Sarah O'Sullivan

The Employment Relations (Flexible Working) Act 2023, which received Royal Assent in July 2023, is intended to give workers more flexibility over when and where they work. This legislation is expected to come into force in the summer of 2024, based on the timescale from Royal Assent.

Chartered Institute of Personnel and Development (CIPD) research (Flexible and hybrid working practices in 2023 | CIPD) indicates that 40% of employers have seen an increase in requests for flexible working following the Covid-19 pandemic, and 66% of organisations saying they believe it is important to provide flexible working as an option when advertising jobs.

Employers and employees should therefore be mindful of the looming changes to the process surrounding flexible working requests.

Who can make a flexible working request?

Employees with at least 26 weeks of continuous employment are currently entitled to make flexible working requests to their employer. It should be noted, however, that although this has remained a requirement under the new legislation, it is anticipated that further legislation will eventually be implemented to remove this requirement, making flexible working requests a day one right for employees. Of course, any employee can make a request but employers are not obliged to consider requests unless made by eligible employees.

What are flexible working requests?

Flexible working requests should be made when an employee wishes to make a change to any of the following:

the hours they work
the times when they are required to work
the place they work (i.e. working from home, or another of the employer’s sites).

Some examples of how these changes could be implemented in practice include:

reducing hours to work part-time
changing start/ finish times
compressing hours to work the same number of hours over fewer days
job sharing.

Employees can also request the change be limited to specific days or weeks only (e.g. only during school term time), or for a limited period such as 6 months only.

How an employee can make a flexible working request

To meet the statutory requirements of a formal flexible working request, applications should:

be made in writing
be dated
state that it is an application made under the statutory procedure
specify the change the employee is seeking
specify when they wish the change to take effect
state if and when the employee has previously made an application.

An important change in the new legislation is, previously, there was an additional requirement for the employee to explain the effect that flexible working would have on the employer, and how the employer might deal with such an effect. This requirement has been removed by the new legislation.

How an employer should deal with a flexible working request

Under the new legislation, employers are required to deal with requests within two months of receipt (as opposed to the previous three months), unless both parties agree to extend this period.

Employers must deal with flexible working requests in a reasonable manner, and can only refuse requests for the following reasons (which remain unchanged under the new legislation):

the burden of additional costs
detrimental effect on the ability to meet customer demand
inability to reorganise work among existing staff
inability to recruit additional staff
detrimental impact on quality
detrimental impact on performance
Insufficiency of work during the periods the employee proposes to work
planned structural changes.

The new legislation also requires employers to consult with the employee before refusing a request. The new legislation does not provide guidance around what is required in such a consultation, but the ACAS Code of Practice does contain some guidance around this. The ACAS guide also has content covering dealing with requests in a “reasonable manner”. ACAS is currently in the process of updating this code.

If a flexible working request is accepted, the employer should issue an updated statement of main terms or provide a statement of changes to employment (under section 4 Employment Rights Act 1996).

If the request is denied, the employer must write to the employee stating this, keeping in mind that under the new legislation, the employee must be consulted before a request can be denied. Employers should note that although there is no statutory right to appeal the decision, employees now have the right to make up to two flexible working requests within any twelve month period, so if an employee’s first request is denied, they are entitled to make another one.

Employers need to stay up to date

With CIPD research showing that 49% of employers were previously unaware of the impending changes to flexible working legislation (Flexible and hybrid working practices in 2023 | CIPD), employers should ensure that they are aware of the changes as set out above. They should also consider updating any existing policies and procedures relating to flexible working arrangements to ensure that they are in line with the statutory changes and new time limits.

With the new legislation anticipated to come into force next year, we understand the ACAS Code of Practice on handling requests for flexible working is also to be updated. The purpose of the ACAS code is to “provide employers, employees and representatives with a clear explanation of the law on the statutory right to request flexible working, alongside good practice advice on handling requests in a reasonable manner” (Acas consultation on the draft Code of Practice on handling requests for flexible working | Acas).

Employers should look out for updates in relation to the new ACAS code and ensure that they are now complying with the new statutory requirements ahead of the implementation of the new Act, whilst also keeping in mind the likelihood of flexible working requests becoming a day one right.

What could happen if I unreasonably refuse a flexible working request?

If a tribunal upholds an employee’s complaint concerning the handling of a flexible working request, you may be required to reconsider the employee’s application. Alternatively, or in addition, the employee may be awarded compensation, additionally, issues over flexible working could also lead to other claims (see below).

Sex discrimination claims and flexible working

A mishandled flexible working request might lead to a potential discrimination claim. For example, if your flexible working policy has a greater impact on one sex over another (or on one particular employee because of their sex) you may face claims of indirect sex discrimination.

The ACAS guidance on flexible working, mentioned above, recommends that employers and managers should avoid making assumptions when assessing flexible working requests. All requests should be assessed consistently and with regard to business circumstances.

However, acting consistently does not necessarily mean that you can adopt a blanket flexible working policy – accepting or refusing all requests. If a dispute arises, a tribunal will look at any discrepancies in the acceptances or refusals of flexible working requests.

If your policy is found to be indirectly discriminatory, it might be possible to argue that it was a proportionate means to a legitimate aim – i.e.: that there was a good business, commercial or administrative reason for the difference in treatment.

Consideration of flexible working requests should be based on real operational needs and decisions should be objectively justifiable.

Flexible working and constructive dismissal

In general terms, a constructive dismissal occurs where an employee feels forced to resign because of the actions of their employer.

To be successful in a claim, the employee must show that their employer has committed a fundamental breach of contract that is sufficiently serious to justify the employee’s resignation – and that the resignation was due to that particular breach. The breach could be a one-off event or just one instance in a longer history of events.

Unreasonably refusing an employee’s flexible working request, or even handling a reasonable refusal badly, could constitute one of these events and expose you to a potential constructive dismissal claim.

Advice for employers on home working

Posted on 9 December 202222 March 2025 by Sarah O'Sullivan

The expectation for flexible working is becoming more and more in demand. According to the office for national statistics, more than 8 in 10 workers who had to work from home during the coronavirus pandemic said they planned to do hybrid work.

Government proposals around changing the rules around flexible working requests include reducing the formal content required for a request, day one rights, as opposed to eligibility currently subject to 26 weeks’ service and allowing up to 2 requests a year. The debate continues around finding arrangements that work for employees and employers and with employers often having to approach how they deal with requests and principles of flexible working, carefully, to reduce the risks of claims and attract and retain good calibre candidates to jobs.

In the current economic climate, businesses may be reassessing their requirements with consideration being given to reducing office space and rental costs, which may result in more companies considering a home-based workforce for the long term.

As we continue to debate what the ‘new normal’ looks like, it is evident that this is something of a moving target with expectations, trends and business requirements seemingly changing quickly. Against this background, it is worthwhile considering what the legal implications are for employers on some of the key considerations around home working.

Contracts of employment

Many employees will be working under contracts of employment with no specific provision to work from home, and the place of work will most likely be stipulated as the employer’s premises.

Unless there is a written term in the contract of employment permitting home working, employers would need the agreement of the employee in order to insist on home working. Imposing a unilateral change without the agreement of those affected employees could constitute a breach of the employment contract. What happens in practice, though, may also be relevant, whether that is around the employer and/or an employee wanting to revisit the ‘normal’ place of work and how work is delivered post Covid-19.

It is recommended that employers check the wording of the ‘place of work’ clause in their employment contracts as the wording may include a degree of flexibility in the favour of the employer, which can allow for a change in place of work on a temporary or perhaps even permanent basis.

If the contract contains wording allowing for flexibility and changes then the employer may not be in breach of the terms by enforcing a permanent switch to home working. Employers should note that it is still important for employers to act reasonably when implementing such a clause, otherwise, they risk breaching mutual trust and confidence – This is a term implied by law in all employment contracts and breach of it is commonly used in constructive unfair dismissal claims. It is also worth keeping in mind that terms can become part of the contract by “custom and practice”. If in doubt, employers should seek legal advice on their particular documentation and issues arising.

In any event, employers are well advised to ensure they communicate with staff in advance and where appropriate, consult as well as set aside reasonable time before implementing changes to the place of work to allow employees time to prepare and adjust.

Where consultation is needed on employment contract changes

Where there is no flexibility to the place of work clause the employer will need to adopt a different approach. Employers will need to discuss the possibility of working from home with employees and consult with them in order to get their agreement to home working along with the necessary change to the terms of their contract. Again, communication is key and a lack of communication is often a key part of disputes arising.

Call our specialist solicitors on 0808 231 1320

Dealing with a refusal to agree to contract changes

If however, employees in this situation maintain a refusal and the employer can demonstrate that:

there are good business reasons for switching to a home-working model,
it has undertaken appropriate consultation and
it has followed a fair procedure;

then it may be possible for an employer to dismiss.

In appropriate circumstances, such dismissals can be considered fair with the employer relying on “Some Other Substantial Reason” as the potentially fair reason to dismiss, provided the employer can demonstrate that the dismissal was reasonable in all the circumstances.

This should be a last resort if there is a failure to agree and the alternatives have been considered. Such dismissals are subject to due process and bring with them the risk of, amongst other things, unfair dismissal claims for eligible employees. Employers who approach such matters without due care will be exposed to claims and again, seeking professional advice early is prudent.

Employers who are faced with this scenario and are looking to dismiss should look to offer those refusing employees re-engagement on the new amended terms, including the homeworking provisions. Consideration should also be given to the numbers of employees affected: if this is 20 or more then collective consultation may need to be undertaken with potentially severe penalties if the right steps are not followed.

Duties towards employees when working from home

Where employees are working from home, employers should ensure that they are treated in the same manner as all other employees. Home-based employees are entitled to the same rights and benefits as any employee working at the employer’s premises.

An employer has both statutory and common law duties towards its employees and is responsible for an employee’s health and safety, “so far as is reasonably practicable”. In practice, this means that employers should conduct a suitable risk assessment of all work activities carried out by homeworkers to identify any possible hazards. Employers will then need to consider these obligations to decide what measures need to be put in place.

Confidentiality and data protection issues when working remotely

In addition to the health and safety aspects of home working, employers will need to consider how to safeguard business confidentiality and data protection requirements with increased chances of breaches taking place when outside of the employer’s premises.

Careful consideration is needed given the potential damage and loss that could be caused through unauthorised breaches, including significant fines that can be imposed by the Information Commissioners Office for breaches of data protection legislation – which has been strengthened since 2018.

It is also key for employers to ensure that they have suitable arrangements in place to help maintain contact with other staff, including office-based and home-workers, in order to limit issues that could arise through increased isolation of working remotely.

Where reasonable adjustments may be necessary

Where an employee has a disability, then consideration should be given to whether the provision of some equipment is required in order for the employer to comply with their duties under the Equality Act 2010 to make reasonable adjustments.

Right to requests for flexible working

It is still the case that employers are not required to agree home working requests from staff. There is no right to work from home and instead, presently, employees with 26 week’s service have the right to request flexible working arrangements.

Bullying and harassment at work

Posted on 20 March 202022 March 2025 by Sarah O'Sullivan

With widely reported resignations resulting from allegations of bullying behaviours, both harassment and bullying is an increasingly common issue faced by employers.

This article sets out information for employers on the issues surrounding bullying and harassment in the workplace, what they should do and what potential liabilities they could be responsible for.

What is workplace harassment & bullying?

Harassment is when behaviour from a person or group of people is unwanted behaviour makes you feel uncomfortable, intimidated, degraded, humiliated or offended.

Bullying has no legal definition with ACAS characterising bullying as “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse if power through means that undermine, humiliate, denigrate or injure the recipient”.

These behaviours can have a negative effect on employees often resulting in increased absence from sickness, anxiety/depression, low motivation and reduced productivity in the workplace.

Social media harassment

Bullying and harassment is not just face to face, it can also happen by letter, email, phone or even via social media.

With the ever-increasing speed of technological changes, there are implications for what is classed as bullying and harassment. The Equality and Human Rights commission has issued new guidance on workplace harassment, warning that comments posted on social media could be classed as harassment. This adds a whole new dimension to the obligations that are faced by employers in this complex area of law.

Harassment guidelines could become law

There are plans for the guidelines to become statutory measures enforceable by law. Therefore it’s important for employers to be aware of what bullying and harassment is, their duties and responsibilities to their employees, as well as potential risks. What is the difference between bullying and harassment?

Bullying and harassment are similar in terms of the behaviours exhibited and how they make the victim feel.

To be protected under the Equality Act 2010 the conduct must be unwanted, have the purpose or effect of violating that individual’s dignity and be related to one of the protected characteristics, which are:

age
sex
race
sexual orientation
religion or belief
disability
gender reassignment
pregnancy and maternity.

Harassment where it is not related to a protected characteristic, could also be protected under the Protection from Harassment Act 1997 and civil claims can be brought by those affected.

Common types of bullying and harassment

Bullying and harassment behaviours in the workplace can include:

unwanted physical contact
workplace ‘banter’
unwanted shouting
unwanted remarks
freezing employees out and ignoring their contribution
denying someone training or promotion opportunities
spreading rumours
misuse of power or position
overbearing supervision
withholding information which can affect someone’s performance
persistent criticism or undermining someone.

What can employers do to prevent bullying and harassment?

Employers should develop and circulate policies dealing with bullying and harassment, including what standards of behaviour are expected, what working relationships should look like and how to professionally manage these and deal with any conflicts.

Where employers can show that they took “all reasonable steps” to prevent employees behaving in such a manner, then they will not be liable for acts of discrimination. However simply having a policy is unlikely to be sufficient. Taking reasonable steps might mean having well-publicised policies but also undertaking effective and regular training of staff on the issue.

Staff should therefore be given training on how to act consistently and apply the bullying and harassment policy, to ensure they are familiar with the processes and how to follow them. Employees should be encouraged to feel that they can talk to someone in authority, for example, their line manager or someone in HR, and they will be listened to and have their concerns taken seriously; also that they will not be censured for speaking out.

Training could also be given on the impact and damage that certain behaviours can have on those affected. Managers in particular must be trained about their responsibility to identify and prevent such behaviour.

How to spot bullying and harassment

Staff can suffer in silence – feeling too anxious to tell someone about it for fear of not being believed, not being taken seriously or it getting worse as a result of speaking out. Good practice for employers includes being aware that it might be happening even if the person doesn’t report it. Things to look out for include:

increased absences from work
people disappearing from their desks, to get away -for example, go to the bathroom for long periods
declining standards of work, especially if that is not typical
people asking to move their desk or other location in which they work
unexpected outbursts indicating stress
colleagues avoiding or ignoring each other

What should employers do when there is a report of bullying or harassment?

According to a report published by the Chartered Institute of Personnel and Development, a quarter of employees think their company turns a blind eye to workplace bullying and harassment; so it is vital that employers react promptly and appropriately to complaints raised.

Where there is a complaint made, ensure that there is an effective resolution procedure so that the organisation can act promptly and conduct a thorough investigation, acting in a fair, confidential and sensitive manner. This will usually be set out in the anti-bullying and harassment policy or via a grievance process.

Where a complaint of bullying and harassment is well founded, employers will need to consider what steps to take against those who have carried out the conduct. These would usually be to consider appropriate disciplinary action under the employer’s disciplinary procedures, after an investigation has been carried out. Remember to always act with consistency.

What can employers do to support staff?

There are many ways in which employers can support affected staff, for example offer counselling to those who have made a complaint. Some employers may also offer the benefit of an external employee assistance scheme and employees should be made aware and directed to this.

If bullying and harassment leads to sickness, this will need to be managed appropriately, with support given in their return to work. It may be that the employer should consider, alongside a medical evidence or occupational health report, a phased return to work, adjustments to workload, or the possibility of a change of job or reporting lines.

Claims for workplace bullying and harassment

Bullying and harassment can lead to liability for employers as it is possible to pursue the employer for claims which relate to workplace bullying and harassment. This is because employers are normally liable for acts of their staff, whether or not they have condoned or dealt with the behaviour.

Where the treatment is related to a protected characteristic (see above) employees can pursue claims based on discrimination under the Equality Act 2010, where compensation for acts of discrimination is uncapped. If a complaint of discrimination is upheld then it is likely a Tribunal would make an award of ‘injury to feelings’ of the recipient as well as any other financial losses that follow from the acts of discrimination.

Employees may also seek to bring a claim of constructive unfair dismissal where they may attempt to show that the employer was in breach of their contract of employment and that they resigned in response to that breach. Commonly this is on the basis that a term implied into all employment contracts, dealing with mutual trust and confidence, has been irretrievably broken. This claim is limited to employees who have been employed for two years or more. If successful, the recipient is likely to be awarded a basic award (taking account of their age, length of service and pay) and a compensatory award, which reflects the financial losses incurred (e.g. loss of earnings).

Civil claims are also possible where harassment is not related to a protected characteristic and can be brought under the Protection from Harassment Act 1997.

Employment Tribunal Rules: What you need to know

Posted on 16 March 202022 March 2025 by Sarah O'Sullivan

If you’ve received an employment tribunal claim (ET1 Form) from a current or former employee, it’s important to understand the process and your responsibilities. Here are some common questions and answers to help guide you through.

What should I do after receiving an ET1 form?

You must respond using an ET3 Response Form within 28 days of receiving the claim. The specific deadline will be indicated in the tribunal’s letter. If you need help preparing your response or applying for an extension, we can assist you.

Can I dismiss a claim without merit?

Even if you believe the claim has no merit, you are still required to complete the ET3 Response Form. Additionally, you can submit an application to request a Pre-Hearing Review. During this review, the tribunal will assess the claim’s prospects of success. If the claim lacks reasonable prospects, it may be struck out. Alternatively, the tribunal may order the claimant to pay a deposit to proceed. We can represent you at this hearing if needed.

What if the claim lacks sufficient detail?

If the claimant’s submission is unclear, you have the right to request further information. You can send a formal letter with specific questions to clarify the issues. Our team can assist in drafting and sending this request.

What is ACAS and how can they help?

ACAS (Advisory, Conciliation and Arbitration Service) is an independent body offering confidential conciliation services. They help resolve disputes before or after a claim is filed. Settlement discussions through ACAS are private and will not be disclosed to the tribunal. Early involvement of ACAS can often lead to a faster resolution.

Can I recover legal costs if I win?

In most cases, each party covers their own legal costs in an employment tribunal, even if you win. However, you can apply for a costs award if the claimant has acted unreasonably. While cost awards are rare and only granted in exceptional circumstances, we can advise on whether this is a viable option.

Need further assistance? Our experienced team is here to help you navigate the employment tribunal process and protect your interests.