6/01/2025
The Employment Rights Bill (the Bill), which was published in October 2024 (see here and here), includes a new requirement for large employers to publish action plans to support staff going through the menopause. We expect the Government to publish Regulations in due course prescribing the content of such action plans, how frequently they should be published and the requirement for senior leadership approval. Make UK will be encouraging the Government to make this process as simple and clear as possible for employers when it decides on the content and frequency of the plans.
Although the Bill states that the requirements in relation to action plans will not apply to employers with fewer than 250 employees, menopause-focused HR initiatives can bring significant benefits to all organisations irrespective of their size. Now is therefore a good time to think about how you can better support your employees through the menopause. For example, do you have a menopause policy? Do you offer menopause awareness training for all your workforce? Do you offer specific menopause training for managers? We would recommend all of these, as well as considering what other measures you could include in your menopause action plan in due course. For information about how to support employees with menopause symptoms, see our e-alert.
In addition, it is worth noting that the Government stated in Make Work Pay that it plans to publish “guidance, including for small employers, on measures to consider relating to uniform and temperature, flexible working and recording menopause-related leave and absence”. This was reiterated in Next Steps to Make Work Pay, in which the Government stated that it will develop menopause guidance for employers and guidance on health and wellbeing. Employers will need to ensure that they comply as and when applicable guidance comes into force.
We will be covering forthcoming legislative changes in more detail in our Spring Employment Law Updates. Booking details will be available shortly.
If you are a Make UK subscriber, you can speak with your regular adviser about supporting your employees through the menopause and/or access further information in our HRL Resources. If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
The position any employer chooses to take when defending legal allegations of course depends on the specific facts of the case, and your legal adviser can discuss with you the best approach for your circumstances. It does seem likely, however, that moving forward more employers will seek to rely on the statutory defence when responding to sexual harassment claims.
By way of reminder, to succeed with the statutory defence the employer must show that it took ‘all reasonable steps’ to prevent the perpetrator from committing the discriminatory acts alleged (see section 109(4) Equality Act 2010). Although this defence has been available to employers for some time, in the past some employers have been wary of using it because demonstrating that ‘all reasonable steps’ have been taken is a high bar which has often not succeeded.
Moving forward, it seems likely that more employers will seek to rely on the statutory defence when responding to sexual harassment allegations, as the new proactive duty on employers which came into force in October means that employers should be more readily able to demonstrate clear steps they have taken to prevent sexual harassment from occurring (e.g. based on risk assessments and in line with the EHRC’s guidance (see here for further details)). From a legal perspective, many employers may also take the view that, if they don’t seek to rely on the statutory defence in the future, they are more likely to look like they are conceding.
To read our e-alert on key issues employers should have in mind when planning staff social events in the light of the new duty, see here.
In addition, it is worth noting that the Government has stated that it will, in due course, strengthen the current proactive duty which requires employers to take ‘reasonable steps' to prevent sexual harassment at work – by including the word 'all' before 'reasonable steps'. There are therefore clear benefits for employers who get on the front foot now and take a thorough and robust approach to preventing sexual harassment.
Make UK, as your trusted partner, can provide a package of support to employers in relation to sexual harassment, including to support the implementation of the new preventative duty. We offer a suite of training covering all levels – from front line to director – which can be delivered virtually or face-to-face, together with HR and management workshops and visioning sessions (for planning purposes and on-going review and monitoring of the steps taken).
In addition, we can provide template documentation, including an anti-bullying and harassment policy (including management guidance notes) and an equality policy, workplace risk assessments (which we can offer in conjunction with our health and safety team) and workforce surveys (including Pulse surveys and focus groups). This is alongside our full suite of ED&I training and consultancy to support your general duties under the Equality Act 2010.
For further details, you can speak with your regular Make UK adviser, contact us and/or see Sexual Harassment | Make UK.
There is no strict legal right for an employee to be accompanied to a redundancy consultation meeting, but it is generally good practice to allow this. There will also be circumstances in which allowing an employee to be accompanied will help to establish the fairness of the dismissal. Our template letters inviting an employee to a consultation meeting therefore include optional wording that you can use if you decide to allow the employee to bring a companion to the meeting.
If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information about redundancies, including template policies and drafting guidance, in the HR & Legal Resources section of our website. Make UK offers a range of training, including for line managers/HR on how to undertake collective redundancies - speak with your adviser if you would like further details.
If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
A protective award is a financial penalty which an employment tribunal can order an employer to pay to employees if the employer fails to inform and consult with appropriate representatives about its collective redundancy proposals (i.e. where 20 or more redundancies are proposed at an establishment within a 90 day period). See here. The definition of redundancy is essentially any ‘dismissal’ for a reason not related to the individual. This means that the duty to collectively consult applies not only to redundancies in the traditional sense but also to dismissals as part of a dismissal and re-engagement process to change employment terms.
Each employee who is covered by a protective award could receive up to 90 days’ pay. From 20 January 2025, employment tribunals will have the power to adjust any compensation award it makes for a successful protective award claim for failure to properly collectively consult by up to 25% where a party unreasonably fails to comply with the statutory Code of Practice on Dismissal and Re-engagement (see here).
Notably, if appropriate representatives are in place, only they can bring any claims about a failure to consult them – the employees they represent cannot bring their own claims. However, if an employer fails to put appropriate representatives in place, any employee affected by the redundancies can bring a claim.
If you are a Make UK subscriber, you can speak to your regular adviser for further guidance about collective consultation requirements, and access information including template policies and drafting guidance in the HR & Legal Resources section of our website. Remember too that Make UK offers training for line managers/HR on how to undertake collective redundancies - speak with your adviser if you would like further details. If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
No, the Government’s plans to introduce a new right to switch off (i.e. a right for workers to disconnect from work outside of working hours and not be contacted by their employer) are not included in the Employment Rights Bill. However, we expect this new right to be delivered via a statutory Code of Practice in due course.
The Government set out this intention in Next Steps to Make Work Pay (as well as its earlier document Make Work Pay), in which it stated that “delivery of these type of commitments will take place alongside the Employment Rights Bill’s passage and beyond Royal Assent”.
It seems likely that the Government will follow similar models to those in Belgium and Ireland – which both take a relatively soft approach to implementing a right to disconnect – although the Government has indicated it will consult on its plans before reaching any conclusions.
We will of course keep our subscribers updated when further information becomes available. In the meantime, we will be covering forthcoming legislative changes in more detail in our Spring Employment Law Updates. Booking details will be available shortly.
If you are a Make UK subscriber, you can speak with your regular adviser and/or access further information in our HRL Resources. If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.