October employment law round-up

New duty to prevent sexual harassment

The Worker Protection (Amendment of Equality Act 2010) Act 2023 was granted Royal Assent on 26 October 2023.

The new Act amends the existing Equality Act 2010 to include a new duty for employers to take ‘reasonable steps’ to prevent the sexual harassment of their employees. If an employee succeeds in a claim of sexual harassment and the employer is found to have breached this duty, employment tribunals will have the power to increase compensation by 25%.

The Act does not, as originally anticipated, re-introduce protection against third party harassment. The House of Lords voted to remove these provisions from the original Bill.

Wera Hobhouse MP (Liberal Democrats) sponsored the Bill:

“My Bill will strengthen the legislative protections against workplace sexual harassment. It will help to create safer working environments that are fit for the 21st century. It introduces a standalone duty for employers to take responsible steps to prevent sexual harassment within their organisations. That will make a real difference, as it will require employers to take proactive steps to address sexual harassment. It will help to instil a culture change, and it will ensure that people who abuse women and others can no longer rely on their workplaces turning a blind eye. Instead, they will be held accountable for their actions, making workplaces safer, more productive and more enjoyable for everyone.”

The new provisions will take effect in October 2024, and will be supported by a statutory code of practice to be drafted and issued for consultation by the Equality and Human Rights Commission. This will assist employers in understanding what is meant by taking ‘reasonable steps’ to prevent sexual harassment, which is likely to include having robust policies in place and training for staff.

Draft code of practice: predictable working requests

Acas has issued a consultation on a new draft statutory code of practice on handling worker requests for a predictable working pattern, under the Workers (Predictable Terms and Conditions) Act 2023. The Act was granted Royal Assent on 18 September 2023 and is expected to take effect in September 2024.

The procedure for handling requests will work in a very similar way to requests seeking flexible working arrangements. Employers should arrange a meeting with the worker to consider the request ‘without unreasonable delay’, and the code suggests that the worker be allowed to be accompanied by a colleague or trade union representative or official (although there is no statutory right to be accompanied). A request can only be rejected for one of the six statutory reasons, and the worker must be informed of their right to appeal. Employers will have a relatively tight timescale of one month to deal with requests, including any appeal.

The draft code runs to 83 paragraphs and has separate sections dealing with requests made by workers to employers and requests made by agency workers to agencies or hirers.

Consultation on the draft code closes on 17 January 2024, and Acas will also be producing non-statutory guidance to sit alongside the code.

New ICO guidance: monitoring workers

The Information Commissioner’s Office (ICO) has published new guidance for employers on monitoring workers in compliance with the UK GDPR and the Data Protection Act 2018. A consultation on the draft guidance was published in October 2022.

The latest guidance follows separate new guidance on processing workers’ health data, which was published last month. The ICO has identified that with the rise of remote working and developments in technology, many employers are seeking to carry out checks on their workers. The guidance is aimed at all employers, in both public and private sectors, and explains how monitoring can be conducted lawfully and fairly.

The guidance provides an overview of how data protection law applies to the processing of personal data for monitoring workers and considers specific types of monitoring practices such as biometric data to monitor timekeeping and attendance.

The ICO guidance suggests that an organisation seeking to monitor workers should take the following steps.

• Make workers aware of the nature, extent and reasons for monitoring.
• Have a clearly defined purpose and use the least intrusive means to achieve it.
• Have a lawful basis for processing workers data – such as consent or legal obligation.
• Tell workers about any monitoring in a way that is easy to understand.
• Only keep the information which is relevant to its purpose.
• Carry out a Data Protection Impact Assessment for any monitoring that is likely to result in a high risk to the rights of workers.
• Make the personal information collected through monitoring available to workers if they make a Subject Access Request (SAR).

The guidance also incorporates various checklists to assist employers in the factors that need to be considered in relation to different aspects of monitoring. 

Menopause policy paper

To coincide with Menopause Awareness Month, the Government has published a new policy paper, No Time to Step Back, which introduces the new Menopause Employment Champion, Helen Tomlison.

The paper sets out the work undertaken so far, and outlines the four-point plan for improving menopause in the workplace support.

1. Sharing of employer best practice (within sectors) on a portal that is accessible to all employers whether large or small, free of charge.
2. A national sector-specific allyship programme which ensures no one is isolated and everyone has someone available to talk to.
3. Menopause-friendly employers who will support, share and advocate across their sector – retaining and attracting talent to the sector.
4. A communications plan to improve the working lives of women in their sector, achieved by amplification through strategic partnerships.

The first phase of the plan will focus on the hospitality, retail, care, manufacturing and professional and technical sectors, with sector-specific workshops being held over the next six months. Key to the plan is the development and establishment of a repository of menopause resources and guidance for employers and employees, via the Government’s Help to Grow website.