Yes, the new duty on employers to prevent sexual harassment which came into effect from 26 October 2024 (see here) applies “in the course of employment” – which means work-organised Christmas parties fall within scope.

When determining whether the duty applies in a particular scenario, an Employment Tribunal will take into account the various factors it typically considers when deciding whether something counts as being “in the course of employment” (such as factual considerations, like where and when an incident or event took place, and relevant case law). Generally, “in the course of employment” will include all work-related events, social functions, off-site training and conferences, as well as work-related communications such as WhatsApp chats.

Make UK, as your trusted partner, can provide a package of support to employers to support the implementation of the new 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.

If you attended one of our Spring Employment Law Updates, you will remember that we covered the decision of the Employment Appeal Tribunal (EAT) in De Bank Haycocks v ADP RPO UK as part of our case law updates.

Briefly summarised, the EAT found that ADP’s dismissal of Mr. De Bank Haycocks for redundancy was unfair because ADP hadn’t carried out what the EAT referred to as ‘general workforce consultation’ when the redundancy proposals were at a formative stage. (This was even though the statutory collective consultation obligations did not apply as fewer than 20 redundancies in a 90-day period were proposed). Instead, the employer had only begun consultation (on an individual basis) with Mr. De Bank Haycocks after he had been provisionally selected for redundancy, which, according to the EAT, meant there was no meaningful consultation at the formative stage of the redundancy process.

The EAT’s judgment was surprising and proved problematic for employers (and employment lawyers), as it indicated that ‘general workforce consultation’ needed to be carried out in small-scale redundancies in order for a dismissal to be fair. The judgment muddied the waters on consultation obligations and employers (especially those which do not recognise a trade union or have a works council/standing body of employee representatives with whom to consult) were left wondering what they were expected to do in situations where the statutory collective consultation obligations did not apply.

ADP issued an appeal and, on 29 October 2024, the Court of Appeal overturned the decision of the EAT and restored the decision of the Employment Tribunal. In its judgment (see here), the Court of Appeal rejected the EAT’s suggestion that, in order for a dismissal to be fair, ‘general workforce consultation’ must be carried out even where the statutory collective consultation obligations do not apply.

Helpfully for employers, the Court of Appeal found that fair redundancy consultation does not necessarily need to involve group workforce consultation and that this is not ‘the usual standard.’ The Court acknowledged that group consultation meetings may be a useful way of ascertaining the views of employees in some circumstances but that, in situations where the statutory collective consultation obligations do not apply, group meetings are not mandatory and whether they are appropriate will depend on the facts of each case. The Court found that the adequacy of the redundancy consultation will be fact-specific and needs to be considered by tribunals on a case-by-case basis.

The Court did flag, however, that redundancy consultation should take place at a formative stage whilst the employer still has an open mind and whilst the employee can still realistically influence the decision-making (as the later the consultation takes place, the greater the risk the decision-maker will have closed their mind). Employees must be given an early opportunity to provide input on whether redundancies are required at all, the rationale behind the proposals and things like the selection pool and selection criteria.

Notably, the Court commented that, where employees are being selected from a pool, it is bad practice for an employer to carry out a scoring exercise before the consultation has started.

As a separate point, usefully though, the Court of Appeal noted that procedural unfairness in a decision to dismiss can be remedied by an employer carrying out a fair internal appeal (although ideally, it is better not to have to rely on that).

The Court of Appeal’s judgment provides some welcome clarity for employers and is likely to be used as a reference tool regarding the rules around redundancy consultation moving forwards.

Looking ahead, it is worth noting that the Employment Rights Bill includes provisions aimed at strengthening the rules around collective redundancies (see here for further details).

We will be updating our HRL Resources on redundancy to reflect this Court of Appeal decision shortly. In the meantime, if you are a Make UK subscriber, you can speak with your regular adviser about redundancy and related issues. Make UK can provide employers with a wide range of redundancy support, including redundancy training for HR, line managers, and employee representatives.

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 answer to this will depend on the circumstances, and it is vital that you gain a full picture of what the employee is proposing before you decide whether to agree to or decline their flexible working request.  
Is it possible that you may have misunderstood the employee’s request here?  If the employee is planning to be the sole caregiver to their child at the same time as working for you from home, then there is likely to be a conflict between their work and childcare responsibilities, especially if the child is young. However, before reaching a decision, you need to fully understand from the employee how they are planning to balance their work and childcare responsibilities.  For example, will the employee engage a nanny to look after their child while they are working?  
If, having gathered the necessary information and considered the request fully, you decide to refuse the flexible working request, you will need to rely on one of the prescribed reasons set out in the flexible working legislation (for example detrimental impact on performance) as well as complying with the ACAS Code of Practice on requests for flexible working (see here ).  
Given the complexities of this area, we recommend seeking independent legal advice on the specific circumstances.  You will need to keep in mind, for example, the potential risks of refusing the request from an indirect sex discrimination perspective. A requirement that employees must not look after children while also working could disadvantage women, but if you have properly considered your reasons for rejecting the application, then this may be objectively justifiable. That said, it may not be justifiable to impose a blanket policy of not allowing employees to work when their children are at home (irrespective of the child’s age), as older children may be able to occupy themselves, at least for some of the working day.  
Looking ahead, it is worth noting that the Employment Rights Bill includes provisions aimed at making flexible working the default from day one of employment (see here  for further details).
If you are a Make UK subscriber, you can speak with your regular adviser about handling flexible working requests 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 fact that an employee has been sent to prison does not terminate their employment and dismissal in these circumstances should not be a ‘knee-jerk’ response. You will need to investigate the individual circumstances of the case before deciding whether dismissal is appropriate. If an employee is imprisoned for a fairly short period, for an offence unrelated to their work, it might be considered ‘reasonable’ for you to ‘hold open’ their job until they are released.

Factors to consider when deciding whether it is appropriate to dismiss will include: the length of sentence imposed; the nature of the offence (and whether it relates to/impacts on the employee’s job); the effect of the employee’s absence on the business; and the damage (if any) done to the employer’s reputation.

Imprisonment might mean it is fair to dismiss on the grounds that the employee is no longer able to perform their contract of employment (i.e. dismissal on grounds of ‘capability’). If the nature of an employee’s conviction gives reasonable grounds to doubt an employee’s continuing suitability to carry out their role, or the circumstances of the imprisonment reflect negatively on your business, it might be possible to dismiss fairly for ‘conduct’, or ‘some other substantial reason’ (SOSR). However, you will need to act reasonably and follow a fair procedure to avoid a successful unfair dismissal claim.

Remember also that the processing of information concerning criminal offences or convictions is subject to restrictions under data protection law – Make UK subscribers can read more in the Employee data and monitoring section of our HR and Legal Resources.

In addition, Make UK subscribers can speak to their regular adviser for guidance on the law and best practice on managing dismissals. Further information on relevant topics, including template policies and drafting guidance, is also available in the HR & Legal Resources section of our website.

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.

Trade union representatives have a statutory right to reasonable paid time off to carry out trade union duties, to undergo training, and to accompany a worker to a grievance or disciplinary hearing. Union learning representatives and union members also have rights to reasonable paid time off in certain circumstances.

Currently, there is limited legislative guidance for employers on what counts as “reasonable” time off: the legislation simply states that what is reasonable depends on the circumstances and any relevant provisions of a Code of Practice issued by ACAS.

The relevant ACAS code of practice (which was last revised in 2010) states that important factors when determining whether time off is reasonable are as follows:

• The size of the organisation and the number of workers.
• How the absences may affect production or the individual’s day job.
• Safety considerations.
• How much time the representative has previously taken.

In addition to considering these factors, it is of course important to check any applicable recognition agreement and facilities agreement(s).

Notably, the ACAS guidance states that requests for time off should provide management (especially the relevant line manager) with as much notice as practically possible and give further details, such as the purpose of the time off (while preserving personal confidential information relating to individuals in grievance or disciplinary matters), location, timing, and duration. The ACAS guidance also flags some additional considerations to help managers decide whether requests for time off should be granted.

Various changes to trade union legislation will take effect under the Employment Rights Bill (see here and here). Make UK’s Policy Team has been engaging closely with Government, trade unions, and other representatives, discussing the detail of the Government’s Plan to Make Work Pay to ensure that its proposals benefit both manufacturing employers and their workers. We will continue to represent the views of Make UK members to Government, sharing member insights, suggestions, and concerns via meetings, roundtables, and during the upcoming consultations.

If you are a Make UK subscriber, you can speak to your regular adviser for further guidance on trade union duties including the right to time off. Further information on relevant topics, including template policies and drafting guidance, is also available in the HR & Legal Resources section of our website.

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.