Employment Update: January 2024

• Duty to prevent sexual harassment: From October 2024, employers will have a positive duty to take “reasonable steps” to protect staff from sexual harassment in the workplace. Whilst employers do currently need to show they have acted reasonably to prevent sexual harassment if faced with a claim from an employee, they will now also have a distinct legal obligation to take proactive measures to protect their staff (with Employment Tribunal awards increased by up to 25% if they fail to do so). Although there is no guidance in the legislation as to what “reasonable steps” are, they are likely to include reviewing and updating diversity and inclusion policies, raising awareness amongst management and arranging regular staff training.
• Holiday pay: From April 2024, employers can lawfully pay “rolled up holiday pay” to staff who work on part-year or irregular hours contracts. Rather than these employees taking paid holiday, which is often impractical given the infrequent or short-term nature of their work, employers can instead top-up their pay by 12.07% to compensate them for their right to paid holiday. This is welcome news for employers who use temporary or casual staff for events or other shorter-term purposes.
• Pregnancy and redundancy protection: From April 2024, pregnant employees (and adoptive parents) will have enhanced protection from redundancy from the moment they notify their employer of their pregnancy up until 18 months after childbirth. Most importantly, employers will need to offer these parents any suitable alternative vacancies in priority over other employees at risk of redundancy.
• Flexible working: From April 2024, the right to request flexible working will become a “day one right”. From the first day of their employment, employees will now be able to make two requests in any 12-month period (up from one) and employers will need to decide on any request within two months (down from three).

Employment claims cannot be capped by contract

The Employment Appeal Tribunal (EAT) has ruled that a clause in an employment contract which limited an employer’s liability to a fixed amount upon termination of employment could not be used to cap an employee’s claims in the Employment Tribunal (SPI Spirits (UK) Ltd v Zabelin). It is a helpful reminder for employers, particularly sports organisations and clubs who pre-agree termination arrangements with players or coaches, that these clauses will not necessarily protect them from Employment Tribunal claims if an employee’s termination is handled poorly, especially where there is any discrimination or whistleblowing element to their claims (in which case their award may be uncapped).

Unknown future claims can be validly settled

The latest judgment in a long-running employment case has concluded that a settlement agreement can be used to validly settle future claims which the employee has no knowledge of at the time of the agreement (Bathgate v Technip Singapore PTE Ltd). Settlement agreements can only validly settle “particular complaints”, which is often interpreted as meaning that as-yet unknown future claims cannot be waived. In a helpful decision for employers, the Court of Session has clarified that unknown claims may waived where it is “plain and unequivocal that this was intended”, demonstrating the importance of precise and careful drafting for employers when making use of settlement agreements.

*Although the Court of Session’s decision is only binding in Scotland, it will be highly persuasive in England and Wales and Employment Tribunals are likely to follow (or at least pay significant attention to) this latest judgment.

And finally…

A professor likened to a “racist uncle at the Christmas dinner table” for expressing gender-critical beliefs (namely that sex is biological and immutable) has been found by an Employment Tribunal to have been constructively unfairly dismissed and to have suffered post-employment victimisation. It is the latest in a series of similar judgments and is a reminder that employers (particularly in sport where transgender participation is being increasingly debated) need to be mindful of all protected characteristics within the workplace and that a disagreement over someone’s genuinely-held belief cannot justify detrimental conduct.