Kippen Campbell LLP Chamber Employment Law Bulletin

EMPLOYMENT LAW UPDATE

• New Duty to Prevent Sexual Harassment in the workplace now in force
• Bald Claimant wins sex-related harassment claim
• Apprentices in Scotland
• Proposed 4-day week

1. New Duty to Prevent Sexual Harassment in the workplace now in force

The new duty on employers to prevent sexual harassment in the workplace came into force on 26th October 2024.

Now, employers are under a duty to take reasonable steps to prevent sexual harassment of workers in the course of their employment. This can be at the hands of 3rd parties including customers, clients, service users, delegates at a conference and members of the public.  It is a preventative duty so employers should now anticipate situations when their workers could be subject to sexual harassment during their employment and take steps to prevent it.

If sexual harassment has occurred employers require to take action to prevent it from occurring again.

Employers will be required to show the exact measures they have put in place to comply with the new duty.

The Equality and Human Rights Commission (EHRC) has provided guidance and I  have attached a link HERE  to this.

It is wide and far ranging and gives guidance on how to comply with the preventative duty as well as examples of what employers of different sizes and types require to take.

The new duty is in addition to the existing law in the Equality Act 2010 where workers are protected from discrimination, harassment and victimisation.

Where a worker does commit an act of discrimination or harassment in the course of their employment the employer is “vicariously liable”  for the act whether or not they knew about it or approved it.  Only if the employer can demonstrate that it took “all reasonable steps”to prevent the discrimination or harassment from occurring can they avoid liability.

This is known as the “statutory defence”.

The statutory defence is different to the sexual harassment preventative duty and is a separate, positive, duty requiring employers to take reasonable steps to prevent sexual harassment of their workers.

A failure to comply with the new duty can result in awards of compensation, including a possible 25% uplift, which will reflect the extent by which the employer has failed to comply with its duty. Awards historically for sexual harassment can be high and may include compensation for both past and future loss of earnings and injury to feelings.

The EHRC can also take enforcement action against an employer in certain circumstances.

How to avoid falling foul of the new legislation is something that experienced employment law advisers will be happy to assist any employers with in the event that they have not already set up the appropriate mechanisms.

1. Bald Claimant wins sex-related harassment claim

A claimant worked in a mostly male manufacturing environment where “industrial language” was often used. After a dispute with a colleague the colleague called him a “bald c**t “and also threatened him physically.

The claimant was later dismissed and along with an unfair dismissal claim was a claim for sex-related harassment in relation to the colleague’s comment about his baldness. 

The Employment Tribunal agreed with the claimant and upheld the sex-related harassment claim finding that baldness is predominantly a male issue. The reason was that the comment related to the claimant’s sex as it related to an aspect of the claimant’s appearance mostly found in men.

The Employer appealed and argued that in order for it to be related to sex the harassment would have to apply to that sex to the exclusion of the other and as both men and woman can suffer from baldness they suggested that at the decision of the Tribunal on sex-related harassment should be overturned.

The Employment Appeal Tribunal disagreed with the Employer and found that there was nothing to support the proposition that for unwanted conduct to relate to sex it must relate to a matter which is both inherent in the gender in question and in no one of the opposite gender.

The claimant therefore won his case and it is also a good reminder that sex-related harassment is both complex and wide ranging.

Employers should keep on top of all forms of discrimination and ensure that appropriate policies are drawn up and regularly updated.

1. Apprentices in Scotland

From time to time I get approached by an Employer who has decided to dismiss an apprentice, usually, because they are “no good”!

It then comes as a complete shock to the Employer that the Law in Scotland in relation to an apprentice is quite different to the Law in England.

In Scotland, there is a special section devoted to Scottish apprentices on the Citizens Advice Bureau website which states that:-

“In Scotland an apprentice can only be made redundant or dismissed in very limited circumstances, such as the Employer going out of business.”  

In Scotland the Law applicable to apprenticeships arises mainly from Case Law. 

This Case Law indicates that it will really only be possible to fairly dismiss an Employee if something happens which has the effect of fundamentally undermining the ability to teach the apprentice.

It has also been held that in Scotland apprenticeships cannot properly be terminated on notice or simply due to a redundancy except where redundancy arises from an absolute closure of the business or a major change in the character of the Employers business.

I have attached HERE a link to a case where an apprentice was awarded £25,000 in damages due to termination of the apprenticeship.  In this case the Court considered compensation based on what the apprentice would have earned for the rest of the contract and also added damages to reflect the effect on their future career prospects.

Therefore, great care should be taken in selecting an apprentice and also advice must be taken if termination is to be considered.

1. Proposed 4-day week

The news media has been delighting in striking fear into the hearts of employers by claiming that the government plans to introduce the right for employees to demand a four-day week. The truth is that as part of its proposed new employment law changes, employees will be allowed to request to work compressed hours over four days to allow for three days off.

Speaking on LBC Radio, Education Minister Baroness Jacqui Smith said that compressing work hours and offering flexible working is "actually good for productivity", enabling people to attain a better work-life balance, spend more time with their family and friends, and encourage more people into the workplace.

In its Election Manifesto, the Labour Government said it will also look at:

• Day-one rights — protections, sick pay and parental leave available from day one
• 'Right to switch off' — a new code of practice agreed with employees
• Banning fire and rehire
• Banning zero-hour contracts
• Protections for new mothers
• Creation of a Fair Work Agency

Businesses across the UK were invited to participate in a new trial of a four-day working week. This follows the major success of a six-month pilot in 2022, which saw many reported benefits in employee wellbeing, and 56 of the 61 participating companies planning to switch to a four-day work week permanently.

SUMMARY

Employment Law is an increasingly complex area.  However, many employment issues can be cleared up in just one telephone call to an experienced employment law adviser. 

Kippen Campbell LLP, 48 Tay Street, Perth, PH1 5TR

Employment Law Team

Steve McLaren         sm@kcllp.co.uk 

Sally McCartney       sal@kcllp.co.uk 

Telephone: 01738 635353