418: Recent developments in employment law

Equalities and Human Rights Commission recommend on the redefinition of ‘sex’ in the Equality Act 2010

The Equalities and Human Rights Commission (EHRC) has recommended that the Government considers redefining the protected characteristic of ‘sex’ in the Equality Act 2010 (EqA) to mean biological sex.

This comes in response to a request from the Government for an EHRC opinion on whether the current meaning of ‘sex’ in the EqA as either a man or a woman is sufficiently clear, following the ruling of the Scottish Court of Session earlier this year that the definition of ‘woman’ in the EqA must also include a trans woman with a gender recognition certificate (For Women Scotland Ltd v Scottish Ministers). The basis of the Court’s ruling was that once a gender recognition certificate is issued, that sex becomes the acquired gender for all purposes.

The UK Government subsequently vetoed the Scottish Gender Recognition Reform (Scotland) Bill on the grounds that it would adversely affect UK-wide equality law. In its response, the EHRC acknowledges that society has evolved considerably as regards the protected characteristics of sex and gender reassignment, and that debate on this issue has become polarised. The response explains its view that defining ‘sex’ as biological sex for the purposes of the EqA would bring greater legal clarity in eight areas: pregnancy and maternity, freedom of association for lesbians and gay men, freedom of association for women and men, positive action, occupational requirements, single sex and separate sex services, sport, and data collection. However, the EHRC also notes that a biological definition would be more ambiguous or potentially disadvantageous in three areas: equal pay, direct discrimination, and indirect discrimination. It is not yet clear whether or to what extent the Government is intending to proceed with the EHRC’s recommendation, but this is clearly a controversial area, and the implications of any changes would need to be carefully considered.

House of Commons’ recommendations on workers’ rights and protections

The House of Commons Business, Energy and Industrial Strategy Committee has published its tenth report of the 2022-23 session. This makes several key recommendations to Government on workers’ rights and protections. Noting that labour market policy is fragmented across departments, the Committee calls on the Government to consider establishing a specialised Ministry of Labour. It also recommends introducing a requirement for businesses to conduct impact assessments in order to understand the scope and consequences of the use of AI and new technologies in the workplace, and a right for workers to be informed and consulted about any technology which will result in their surveillance.

Other recommendations include proceeding with the stalled proposal to establish a single enforcement body for labour rights; further research on the prevalence and nature of pregnancy discrimination; and introducing a default right to a secure contract after 26 weeks. The Committee has also asked the Government to justify why it has not extended time limits for certain Tribunal claims from three to six months. Since publication of this report, the Department for Business, Energy and Industrial Strategy has been split up to form the Department for Business and Trade, the Department for Energy Security and Net Zero, and the Department for Science, Innovation and Technology.

New Acas guidance for employers on work-related stress and reasonable adjustments for mental health

Acas has published new advice for employers on managing work-related stress. This follows a YouGov survey commissioned by Acas in March 2023 which revealed that 33% of workers believe their organisation is not effective at managing stress at work, and that 63% feel stressed due to the rising cost of living. The advice covers the causes and signs of stress; understanding the relevant law and the requirement to conduct a risk assessment; supporting employees; and prevention. Steps recommended for employers include having a separate policy on mental health and stress; addressing the causes through employee surveys and risk assessments; providing training for managers; promoting a work-life balance; and ensuring access to support such as employee assistance programmes or stress management training. Acas also sets out advice on how to talk to employees who may be experiencing difficulties and emphasises the importance of keeping in touch with staff who are off work with stress.

Acas has also published new guidance for employers and employees on making reasonable adjustments for mental health. The legal requirement to make reasonable adjustments only applies where the employer knows, or could reasonably be expected to know, that an employee is disabled. However, Acas stresses that employers should try to make adjustments even if the issue does not amount to a disability, for example, by altering responsibilities or working arrangements. The guidance includes examples of reasonable adjustments for mental health, advice on how to respond to requests for adjustments, and advice on monitoring and managing those adjustments. Acas recommends reviewing existing absence and reasonable adjustment policies to ensure they are suitable for employees with mental health problems. Employers are encouraged to have a specific policy on reasonable adjustments for mental health which refers to a mental health strategy, information on internal and external resources (such as employee assistance programmes or occupational health services), and details of manager training and support.

Inquiry into union collusion in blacklisting construction workers

Unite has announced the second stage of its inquiry into union collusion in historic blacklisting within the construction sector. In 2009, the Information Commissioner’s Office revealed that over 3000 workers had been on a blacklist run by an organisation called the Consulting Association which held details of their political and employment activities, preventing them from obtaining jobs in the construction sector. Around 40 construction companies were found to have been involved. Disclosure of union documents during subsequent litigation led to claims that union officials may also have colluded in the blacklisting. This led to Unite setting up an independent inquiry in April 2022 to establish whether any union officials from Unite or its predecessor unions (T&G, UCATT, Amicus, AEEU or MSF) were involved in sharing information about their members. The inquiry is now entering its second stage and anyone with relevant information has been asked to submit details via its online portal.

Amendments to the Strikes (Minimum Service Levels) Bill

The Strikes (Minimum Service Levels) Bill has now completed its report stage in the House of Lords, resulting in a narrow vote in favour of several key amendments which drastically curtail the effectiveness of the Bill. These amendments include provisions that the Government cannot exercise the power to specify any minimum service levels until those powers have been scrutinised by a committee of each House of Parliament, following a consultation; failure to comply with a work notice will not constitute breach of contract or lawful grounds for dismissal; and the Bill will only apply to England, not to Scotland and Wales. In addition, the right of employers to seek an injunction or damages against trade unions who fail to take reasonable steps to ensure employees comply with work notices has been removed. The Bill has now returned to the House of Commons which, unsurprisingly, has opposed these amendments. It is unclear how the Bill can progress from here, or how the current situation will be resolved. The Bill has also been criticised by the Equality and Human Rights Commission, the Joint Committee on Human Rights, and the Trade Union Congress. On 25 April 2023, the TUC published a joint statement signed by 121 politicians from 18 countries supporting the TUC’s call for the Government to abandon the Bill.

No naming and shaming of employers failing to pay compensation

A Freedom of Information (FOI) request has revealed that no details have been published under the Government scheme to name and shame employers who fail to pay Employment Tribunal compensation within the prescribed time limit. Under the scheme, which was first announced in December 2018, the names of these employers and the amounts of unpaid awards were to be published on the gov.uk website. The Department for Business and Trade (previously BEIS) has been notified 3,713 times about employers who have failed to comply with Tribunal awards, but no names have been published. The FOI request also revealed that fewer than 50% of employers pay successful claimants all or any of their compensation within 28 days of being ordered to do so.