Christmas parties: Impact of new law
The Worker Protection (Amendment of Equality Act 2010) Act 2023 came into force on 26 October 2024, and with it came a new positive statutory duty on employers to take reasonable steps to prevent sexual harassment in the workplace. This is a departure from previous legislation, which only required employers to respond to claims of sexual harassment rather than prevent them.
What effect will this have on Christmas parties?
Sexual harassment claims that emerge from these festivities may well plague employers in the first weeks of 2025. Employers may possibly consider that after years of learnt experience, they are better prepared and have mastered how to throw a healthy and safe office Christmas party. However, as fun as they may be, work parties are a high-risk environment for sexual harassment. Usually alcohol is served, inhibitions are lowered, and employees often forget that the work Christmas party is an extension of the workplace. The new Act also means that steps taken in the past by employers may not be sufficient.
The duty under the Act requires employers to take reasonable steps to prevent sexual harassment by their own workers. It also requires employers to take reasonable steps to prevent sexual harassment of workers by third parties, such as clients and customers. Under the Act, whether or not an employer has taken reasonable steps to prevent sexual harassment is an objective test as to what it is reasonable for the employer to do in the circumstances; note that, an employer is unlikely to be able to comply with the duty unless they carry out a risk assessment.
So coming back to the Christmas party: employers should undertake a specific risk assessment of the event – that is, consider what could happen during and after the party, the different power dynamics that could arise and the appropriateness of senior members being left ‘partying’ with junior team members, particularly if alcohol is involved. An employer should then communicate exactly what is and is not acceptable behaviour at the party – even now, there are deep misunderstandings in some workplaces as to what is or is not, sexual harassment. There should be plenty of non-alcoholic drinks on offer and an anonymous reporting route for concerns (even on the night), as employees and workers may steer clear of raising grievances which can be awkward, protracted or end up retaliatory.
Even if you have had your 2024 Christmas party, the duty under the Act is ongoing. The Equality and Human Rights Commission (EHRC) has published a concise ‘Employer 8-step guide: Preventing sexual harassment at work’ which employers may find useful. The EHRC also has templates including a checklist, action plan and monitoring log.
While initially developed for the hospitality industry, the templates can apply to other sectors. The checklist is incorporated into the action plan to show how the new policy on sexual harassment can integrate into an organisation’s existing policies and the log is to monitor progress. An in-depth quarterly log is recommended to assess effectiveness of the checklist and any action taken and helps to demonstrate that employers have an active policy in place as opposed to this just being a box ticking exercise. The three templates can all be accessed at: Preventing sexual harassment at work: checklist and action plan for employers | EHRC
Manifesto analysis: Employment
With just a few days to go before the general election on 4th July, we have summarised below, the key pledges of the political parties in relation to employment law and employment related issues.
Labour Party manifesto
Labour has produced the most comprehensive set of initiatives in their “Plan to Make Work Pay: Delivering a New Deal for Working People”. Should they win the election, Labour has said it will introduce an Employment Bill within the first 100 days. The major changes sought are as follows:
Creating a single status of “worker” for all those except the genuinely self-employed, to help reduce cases at the tribunal dealing with arguments over employment status.
Strengthening rights and protections for the self-employed including the right to a written contract.
Abolishing qualifying periods for basic employment rights like unfair dismissal so that it becomes a day one right and extending these rights to all workers.
Increasing the time limit within which workers are able to make an employment claim from three to six months (as for statutory redundancy and equal pay claims).
Banning “exploitative” zero hours contracts so that all workers have a guaranteed minimum number of hours’ work. Anyone working over 12 hours or more a week will be entitled to a regular contract.
Making it unlawful to dismiss a woman for 6 months after returning to work from maternity leave. This right was applied to redundancy dismissal but Labour plan to extend it to all dismissals.
Regarding trade unions: Establishing “fair pay” agreements that are a “floor” to resurrect trade union activity and collective bargaining; repealing the Trade Union Act 2016, Minimum Service Levels (Strikes) Bill, and Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022; simplifying the process of union recognition (which will be particularly relevant for workers in the gig economy) and introducing a new duty on employers to inform new employees of their right to join a union.
Mandating ethnicity pay gap audits from employers with over 250 employees (to mirror gender pay gap audits) and extending equal pay rights to BAME workers.
Outlawing fire and rehire, replacing the process with consultation and updating the statutory code of conduct.
Banning unpaid internships.
Strengthening redundancy protections so that consultation is determined by the number of people impacted across the business rather than in one workplace.
Strengthening protection for whistle-blowers including for women who report sexual harassment at work.
Introducing the “right to switch off” so that homes do not become 24/7 offices.
Removing the current age bands for the National Minimum and Living Wage to ensure every adult worker benefits.
Widening entitlement to statutory sick pay by removing the lower earnings limit and the waiting period which is currently 3 days.
Requiring large employers with more than 250 employees to produce a Menopause Action Plan as to how to support employees through the menopause (uniform, temperature, flexible working and recording menopause-related leave and absence).
Creating a single enforcement body for workers' rights to ensure greater coordination in enforcing workers’ rights.
Making it easier for workers to raise grievances, including enabling employees to collectively raise grievances to ACAS.
Conservative Party manifesto
The Conservative Party manifesto does not contain changes to employment laws which are as significant as those proposed by the Labour, but it does include a number of policies which will impact rights and obligations in the workplace:
Cutting employee national insurance to 6% by April 2027, meaning that the rate will have halved from 12% at the beginning of 2024 and the average worker earning £35,000 a year, will see a tax cut of £1,350 by April 2027.
Maintaining the National Living Wage (currently £11.44 per hour) in each year of the next Parliament at two-thirds of median earnings. Current forecasts predict this will allow the National Living Wage to rise to £13 an hour.
Introducing primary legislation to clarify that the protected characteristic of sex in Equality Act 2010 means biological sex, in order to guarantee that single sex spaces can be provided.
Ensuring eligible parents of children between 9 months and 2 years, can access 15 hours of free childcare a week and from September 2025, 30 hours.
Overhauling current system of fit notes so that specialist work and health professionals and not GPs, provide them.
Continuing implementation of Strikes (Minimum Service Levels) Act 2023 in order to limit the impact of industrial action on public services.
Reintroduction of National Service, making it mandatory for all 18-year-olds who will be given two options: a volunteering role in the civic service, such as an NHS Responder or RNLI volunteer, for the time equivalent of one weekend per month or military service involving a year long paid placement with the armed forces or cyber defence.
Providing adults with support to train, retrain and upskill flexibly throughout their working lives.
Funding 100,000 high quality apprenticeships for young people by curbing the number of poor-quality university degrees.
Liberal Democrat Party manifesto
The Liberal Democrats’ manifesto involves minimal legislative change but with the introduction of some novel ideas:
Encouraging employee share ownership in listed companies with 250 plus staff.
Boosting the take up of apprenticeships through guaranteeing pay at the rate of at least the National Minimum Wage and scrapping the lower apprentice rate.
Like Labour, creating a new authority to consolidate various enforcement responsibilities, ensuring compliance with minimum wage laws, tackling modern slavery and protecting agency workers.
Creating an independent review to recommend a genuine living wage and modernising employment rights to suit the 'gig economy'. This includes creating a ‘new’ employment status for 'dependent contractors', giving them basic rights to minimum earnings, sick pay and holiday entitlement.
Green Party manifesto
The thrust of the Green Party’s manifesto is to defend and extend workers’ rights to organise in the workplace and in particular:
Repealing all current anti-union legislation and replacing it with a “Charter of Workers Rights”, with the right to strike at its heart along with a legal obligation for all employers to recognise trade unions.
A maximum 10:1 pay ratio for all private and public sector organizations to lessen the gap between top earners and the lower paid in organisations. This means a company’s senior-level workers would not earn more than ten times the lowest-earning worker’s salary.
An increase in the minimum wage to £15 an hour, no matter an individual’s age, with the costs to small businesses being offset by reducing their national insurance payments.
Equal employment rights for all workers from day one, including those working in the gig economy and on zero-hours contracts. Gig employers that repeatedly break employment, data protection or tax law would be denied licences to operate.
A move to a four-day working week.
Addressing the issue of pay for NHS workers so that they are not “lost overseas".
Extending pay gap protection to protected characteristics including ethnicity, disability and sexual orientation.
Employment law changes update
TIPS
From 1 July, all tips from cash and card payments must to go to employees and employers cannot deduct anything from these.
This change will mainly affect employers and workers in the hospitality industry and the government has estimated that this will allow workers across the UK to keep a total of £200 million worth of tips each year. The legislation applies to all tips, gratuities and service charges and ensures that tips consumers leave in recognition of good faith and hard work are going to the workers as intended, according to the Draft Code of Practice issued by the government.
Legislation is already in place protecting cash tips, however this new legislation is arguably more relevant in modern society, covering tips left via card payment. Employers must ensure that all tips received are distributed in a fair and transparent manner, having regard to the government’s Code of Practice when doing so. These changes are due to come into effect across the UK on 1 July 2024 under the Employment (Allocation of Tips) Act 2023.
Under the new legislation, employers must maintain a written policy (which is made available to all workers) setting out how they intend to deal with tips and to keep records of tips received and how they are allocated among the workers. The latter is likely to provide valuable evidence in the event that a worker brings a claim for breach of the new legislation. In addition, workers will be entitled to request information from their employers regarding tip allocation, which would likely assist them in bringing such claims.
EMPLOYMENT-RELATED PAYMENTS
From 1 April, the National Living Wage will apply to workers over 21 (as opposed to those over 23) and will increase from £10.42 to £11.44 an hour. for those aged 18-20, the NMW will increase from £7.49 to £8.60. From 6 April, compensation for unfair dismissal will increase to the lower of £115,115 (up from £105, 707) or one year’s pay. The limit on a week’s pay used to calculate statutory redundancy payment or unfair dismissal basic award will increase from £643 to £700. The Vento Guidelines (which give ranges for injury to feelings awards in discrimination cases, depending on severity) for claims presented on or after 6 April, are:
A lower band of £1,200 to £11,700 (less serious cases)
A middle band of £11,700 to £35,200 (cases that do not merit an award in the upper band)
An upper band of £35,200 to £58,700 (the most serious cases), with the most exceptional cases capable of exceeding £58,700.
On 8 April, statutory maternity, paternity, adoption, shared parental and parental bereavement pay will increase from £172.48 to £184.03 per week and Statutory Sick Pay (SSP) from £109.40 to £116.75 a week.
ANNUAL LEAVE AND HOLIDAY PAY
From 1 January, workers are able to carry forward up to 28 days’ leave if they have not been able to take it because they have been on family leave (maternity, paternity, adoption, shared parental) or where an employer has not given them a reasonable opportunity to take that holiday or failed to warn them they could lose it if they do not take it. A worker that is off sick can carry over a maximum of 20 days’ holiday to be used over the following 18 months.
Also from 1 January, statutory legislation now reflects case law in relation to the components which must be included when calculating a worker’s holiday pay. For the first four weeks (for full-, part- year and irregular hours workers) the normal rate of pay should include commission, overtime and/or other payments relating to seniority/professional qualifications. For the remaining 1.6 weeks, holiday pay is at the worker’s basic rate.
From 1 April, how holiday is calculated for ‘part-year’ (for example teachers or teaching assistants or seasonal agricultural workers) and ‘irregular hours’ workers (for example those on zero hours contracts) has changed and will be in hours, not weeks. Holiday entitlement for these workers will be calculated as 12.07% of actual hours worked in a pay period (for example, every week or month). The 12.07% figure is based on the fact that all workers are entitled to a statutory minimum of 5.6 weeks’ leave. This means that a worker’s total working weeks in a year is 46.4 (52 weeks minus 5.6 weeks of leave). 12.07% of 46.4 is 5.6. An irregular hour or part-year worker may be entitled to more than this 5.6 week minimum. To find the relevant percentage for these workers, you would need to do the following calculation: (total holiday entitlement ÷ remaining working weeks in the year) x 100.
Employers will now have the option to pay part-year or irregular hours workers this holiday pay rolled-up with their normal pay. This means that employers include an additional amount within every pay slip to cover a worker’s holiday pay, instead of paying for holiday when a worker actually takes leave. An agency worker who is a ‘worker’ but not an ‘irregular hours worker’ or a ‘part-year worker’, will continue to accrue leave at one twelfth of their entitlement at the start of each month during their first year of employment, as will workers who are not irregular hours or part-year workers.
It is important to note that these new rules only apply to leave years beginning on or after 1 April 2024. So, for an employer that runs their leave years from 1 January to 31 December, the rules will not have an effect until 1 January 2025.
CARERS LEAVE
New leave rights for carers come into force from 6 April, whereby employees can apply for up to one week of unpaid carer’s leave in any 12-month period. Up until now, carers have had no such leave and have had to use flexible working requests, parental or even annual leave. This is a Day 1 right and applies to employees who are the primary caregiver of a dependant with a long-term care need. The leave can be taken in consecutive or non-consecutive half-days or full days. The request must be in writing and the notice be twice the amount of leave requested or three days, whichever is longer.
Employers can postpone a request if the operation of the business would be unduly disrupted but in so doing, must give notice of the postponement before the leave was due to begin. The employer must then allow the leave to be taken within one month of the start date of the leave originally requested. Employees are protected from detriment and dismissal because they take or seek to take carer’s leave or the employer believes they are likely to do so and an employee can take their case to the employment tribunal if the employer unreasonably postpones a period of leave or prevents them from taking it when they are eligible.
PATERNITY LEAVE
Where the expected week of childbirth falls on or after 6 April, employees will be able to take their two-week paternity leave entitlement as two separate blocks of one week (rather than having to take just one week in total or two consecutive weeks). The leave can be taken at any point in the first year after the birth or adoption of their child rather than having to take it in the 56 days following the birth. They only need to give 28 days’ notice of their intention to take paternity leave instead of 15 weeks before the expected week of childbirth.
REDUNDANCY RULES
UK redundancy rules currently give priority protection to employees on maternity, adoption and shared parental leave by first offering them a suitable alternative vacancy, if one is available. From 6 April, the period of priority protection will extend to 18 months (from 12 months) and will also apply to pregnant employees. So, protection will run from the day a woman notifies her employer that she is pregnant to the date she starts maternity leave. For those who lose their baby before 24 weeks, protection is from the moment of informing of pregnancy to two weeks after pregnancy ends (note those whose pregnancy ends after 24 weeks are entitled to maternity leave).
For maternity, adoption and shared parental leave, the priority protection extends from 12 months to 18 months from the birth or adoption of the child, meaning that a woman or parent returning to work after 12 months’ leave is entitled to be offered a suitable alternative vacancy in a redundancy situation for a further six months once back at work. The new rules apply to an employee notifying an employer of a pregnancy on or after 6 April and in the case of maternity, adoption or shared parental leave situation, where the statutory period of leave ends on or after 6 April.
FLEXIBLE WORKING
New rules will apply to flexible working arrangements from 6 April and apply to applications made on or after that date. At the moment, only employees who have been working for the employer for 26 weeks can make requests for flexible working (to include part-time, compressed time, flexi-time or adjusting start and finish times). This will now become a Day 1 right. An employee can make two (not one) request every 12 months. In addition, the employer must respond in two (instead of three) months and an employee will no longer have to explain or describe how the requested arrangements will work or affect the employer. Also new is the fact that the employer must consult with the employee if they intend to reject the request – the idea being that a dialogue is opened up that could help resolve the matter.