d&i Leaders Monthly Equality Law Update
Equality law at work – what to expect in 2024
By Homa Wilson on 29 December 2023
There are a number of legal changes expected in the area of UK workplace equality. Some are intended to enhance the protections already afforded to workers, whilst others aim to introduce new rights and protections. Amongst them, is a new right for carers to take time off and a proactive duty on employers to prevent sexual harassment.
Here are the top five changes to be aware of in 2024 and tips on how your organisation can prepare.
1. Sexual harassment – proactive duty to prevent harassment
The Worker Protection (Amendment of UK Equality Act 2010) Act 2023 will impose a duty on employers, requiring them to take ‘reasonable steps’ to prevent sexual harassment in the workplace. This will amount to a new, proactive, duty to combat sexual harassment.
Although staff are currently protected against sexual harassment, there is no legal requirement on the employer to take proactive steps to prevent harassment. Under the new provisions, employers will have to demonstrate that they have taken reasonable, preventative steps to combat harassment.
What will amount to ‘reasonable steps’ is not set out in the new provisions. It’s very likely that the Equality and Human Rights Commission (EHRC) will update its guidance to provide clarity on this point.
In the meantime, it’s worth noting that failure to take reasonable steps will not give rise to a separate legal claim against the employer. So at first glace, not much appears to have changed. The provisions are significantly watered down from what was initially proposed but employers still need to be ready for the following significant changes:
- If an employee succeeds in a claim for sexual harassment and an employer is found to have breached the duty to prevent sexual harassment, the new provisions will give tribunals the power to increase compensation by up to 25%. This can have significant consequences, as compensation in discrimination cases can be uncapped.
- When defending harassment claims, it’s not uncommon for employers to point to stale policies and historic training, in an effort to evidence its efforts to address harassment. Tribunals are already fairly good at spotting mere ‘tick box’ exercises. The new provisions will require the employer to do more to demonstrate that it took proactive steps to prevent harassment.
Although the changes will not come into force until October 2024, UK employers should take steps now to ensure they are ready to comply.
- Employers should review and update their harassment policies to ensure they are fit for purpose. The policies and procedures should ensure they also focus on preventing sexual harassment.
- There should be a clear and rigorous reporting procedure for complaints. This means providing clarity on how to report complaints, who to report them to and how they will be dealt with. Key to having an effective complaints procedure is that the employer addresses concerns raised promptly and fairly.
- Polices and procedures should be updated and re-circulated. The behaviour expected of staff should be clearly spelt out and staff should be properly equipped to deal with such concerns. Having visible and constant reminders of the employers zero tolerance of sexual harassment is useful. One way to do this is to display posters and notices in the office.
- Tailored harassment prevention training should be provided. This needs to be meaningful and include refresher training sessions.
- Employers should carry out risk assessments, and take action accordingly. It’s important to keep good records of any reviews and assessments conducted, as well as the steps taken to address the concerns.
2. Carer’s Leave Act – carers will have a right to take unpaid leave
The Carer’s Leave Act 2023 is expected to come into force on 6 April 2024.
Currently, there is no specific law allowing carers to take time off to care for dependants – many are left struggling to cope with balancing work and their caring obligations.
The change in the law is expected to give employees a statutory right to a week’s unpaid leave. This right will apply from day one of employment and will benefit those who care for dependents who are ill, disabled, injured (where the injury is expected to last more than three months) or elderly.
The key features of this new right are as follows:
- Employees must take a minimum of half a day. The entitlement to a weeks leave does not have to be taken as five consecutive days, it can be spread throughout the year.
- Employees must give notice to the employer, which does not have to be in writing. Notice must be twice the length of the time being requested, or three days – whichever is the longest.
- Employers cannot refuse a request but can postpone it if it reasonably considers that granting leave would cause undue disruption to the business.
- The employee must be allowed to take the leave within a month of their original request.
- Employees could bring legal claims if the employer unreasonably postpones a request, attempts to prevent the employee from taking leave. Also, if an employee is dismissed due to exercising their statutory rights under the provisions, the employee will be able to bring an automatic unfair dismissal claim.
Employers should put in place policies and procedures to deal with leave request from carers, as well as train managers on how to respond to such requests.
3. Flexible working – employees will have more flexibility over where and when they work
A number of changes have been made to the right to request flexible working. These are set out in the Employment Relations (Flexible Working) Act 2023. It is expected that the changes will come into force on 6 April 2024. The key changes are:
- Employees will be entitled to make two flexible working requests in any 12-month period – currently only one a year is permitted.
- Employers will be required to respond to requests within two months of receiving them, rather than the current three month timescale.
- Employees will no longer be required to explain what impact the request might have on the employers business and how the impact can be minimised.
- Employers will be obliged to consult with the employee and will not be able to refuse a request until they have done so.
- Employees will have the right to request flexible working from day one of their employment. Meaning that employees will no longer need a minimum period of service before they can make a request.
4. Indirect discrimination – no need for a shared protected characteristic
Amendments to the UK Equality Act 2010 are expected to take on effect on 1 January 2024, this includes an amendment allowing individuals to make a claim for indirect discrimination, if they can show there is a group disadvantage related to a protected characteristic and they suffer the same disadvantage – even if they do not share the same protected characteristic.
Under the current provisions, to succeed in a claim for indirect discrimination, the employee must share the same protected characteristic as the group placed at a disadvantage. The position in UK law has been inconsistent with EU law, which does not require the claimant to share the protected characteristic of the disadvantaged group but only to show that they have been disadvantaged in the same way. The amendments will bring UK law in line with EU law in this regard.
Employers should note that the amendment will widen the scope of indirect discrimination claims and is therefore likely to have significant consequences. For example, if a man with childcare responsibilities is refused part-time work, he may be able to bring a claim for indirect discrimination, based on the fact that the requirement to work full-time disadvantages women with childcare responsibilities, and he, even though he does not share the same protected characteristic of the disadvantaged group (is not a women) suffers the same disadvantage.
5. Extension of direct discrimination protection – discriminatory public statements made outside an active recruitment process
Whilst the UK Equality Act already prohibits discrimination during recruitment, it does not prohibit discrimination outside an active recruitment process. Also, as the law currently stands, in order to bring a claim for discrimination there must be an identifiable victim.
Under EU law it is already unlawful to make discriminatory statements outside of an active recruitment process, even where there is no identifiable victim. These include statements about not wanting to hire people with certain protected characteristics.
The amendments to UK law will introduce new provisions aimed at bringing UK law in line with EU law in this regard. The following changes are expected under the new provisions:
- Statements made about not wanting to hire people with certain protected characteristics will amount to unlawful direct discrimination.
- Employers could be vicariously liable for statements made by a third party, if there are reasonable grounds for the public to believe that the third party is capable of influencing the employers recruitment; and
- An individual can bring a direct discrimination claim even if the statement did not personally affect them.
This change increases the risk of employers facing direct discrimination claims, as it dispenses with the need for a victim.
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