Employment Law Update
The Worker Protection (Amendment of Equality Act 2010) Act 2023
The Worker Protection (Amendment of Equality Act 2010) Bill received Royal Assent on 26 October 2023 and will come into force in October 2024.
S26 of the Equality Act 2010 prohibits harassment related to a protected characteristic, sexual harassment, and harassment on the grounds of gender reassignment or sex. The Worker Protection (Amendment of Equality Act 2010) Act 2023 will go one step further and create a preventative duty on the employer in respect of sexual harassment. It will require that an employer must take reasonable steps to prevent sexual harassment of its employees in the course of their employment.
In addition to the above requirement, where an employee brings a successful claim for sexual harassment and the employer has failed in its obligation to prevent sexual harassment of the employee in the course of their employment, the Employment Tribal can uplift the compensation award by 25%.
Although the act will not come into force until October 2024, it is vital that employers review internal policies regarding equality and harassment. Adequate and meaningful training on the prevention of sexual harassment at work should be provided in advance of the legislation coming into force. In addition, employers should expect an update to The Equality & Human Rights Commission Sexual harassment and harassment at work: technical guidance and seek to update their own policies in line with this.
AB v Royal Borough of Kingston upon Thames (ET/2303616/2021)
Facts
The claimant in this case, AB, worked in the transport department of the respondent Council.
AB took the decision to transition their gender from 1 July 2020. AB notified the respondent of their decision giving the respondent 8 months’ notice in advance. The respondent had no specific policies in place to support those who transition, and AB was given no support from the respondent either before, during, or after their transition. In addition, AB was subjected to multiple instances of deadnaming.
‘Deadnaming’ is the use of a trans person’s pre-transition name, such as their birth name. This often relates to the gender they have rejected and is regarded as offensive by many trans people.
The respondent failed to update AB’s name in its email systems, staff directory, and pension records for two years. In addition, it took two years to correct the name on AB’s door pass (which allowed AB to access the building and printer) and AB experienced a post-it note being stuck on their locker with their deadname crossed out and their post-transition name written underneath.
AB was left feeling degraded and a decline in their mental health led them to take time off work under a fit note for bullying at work. Subsequently, AB brought a claim for direct discrimination against the respondent.
Decision
The Tribunal found that the acts of deadnaming amounted to less favourable treatment because of AB’s protected characteristic of gender reassignment. In addition, the tribunal commented that the respondent’s policies and procedures were “woefully inadequate” as they failed to provide guidance to staff undergoing transition and to team managers.
An award of compensation for injury to feelings was made within the middle Vento band and amounted to £25,423.
Comment
Although this authority is not binding, the case clearly highlights the need for employers to have an equality act compliant policy which supports those who decide to transition their gender. It should address support before, during and after transition. In addition, upon being informed of an employee’s decision to transition, employers should take proactive steps to update their personal data.
Chief Constable of the Police Service of Northern Ireland & Anor v Agnew & Ors (Northern Ireland) [2023] UKSC 33
Facts
This case was a group action brought by both police officers and civilian staff of the police service of Northern Ireland. The claim was for underpayments due to holiday pay having been historically calculated on basic pay rather than normal pay (which was inclusive of overtime).
A key issue in the case was the question of how far back the claims could go. In the established case law of Bear Scotland v Fulton the EAT stated that a gap of 3 months or more would break a series of deductions. In theory, this meant that the claims in the group action would not survive past such a break in the series. However, the claims were made out at first instance and allowed to go back as far as 1998. The respondent’s appeal to the Court of Appeal was dismissed. The respondent then appealed to the Supreme Court.
Decision
The appeal was dismissed.
The Supreme Court held that a gap of 3 months does not always break the chain in a serious of deductions. The Supreme Court viewed the definition of the term ‘series’ in its ordinary meaning, a number of things that follow each other in time. It is, therefore, a factual question which needs to be addressed in each case.
Comment
The decision finally brings clarity in respect of the cut-off point for backdated holiday pay claims. A gap of 3 months or more does not necessarily break a chain of deductions nor does a lawful holiday payment between two unlawful payments.
The result is greater potential liability for employers who have been underpaying holiday pay to their workers. Although the Deduction from Wages (limitation) Regulations 2014 limits exposure to such claims in Great Britain to 2 years’ worth of deductions, workers can now seek to claim for linked underpayments even where there is a 3 or more month gap between them.
