Following on from all the hype of the publication of the Employment Bill in October, a number of proposed amendments have been raised already.  We look at some of the main ones below, together with case updates on (1) harassment and victimisation and (2) the definition of “sex” under the Equality Act.

The Employment Bill – Amendments

An Amendment Paper for the Employment Rights Bill (totalling 53 pages!) has been tabled in the House of Commons.

Arguably the most notable amendment proposed is the extension of the time limit to bring a tribunal claims from 3 to 6 months, to apply in respect of all tribunal claims. This has left many questioning why such a significant reform was omitted in its entirety from the original Bill (although it was mentioned in Labour’s “Make Work Pay” Paper as something the Government intended to implement at some point). Doubling the time limit in which a tribunal claim can be raised will inevitably have far-reaching consequences for employers and workers alike, and it is expected that this would result in an increase in the number of claims being brought. However, looking at it from another perspective, an extended time limit could in fact result in more claims being settled at an earlier stage, as there would be more time for negotiations before the time limit ran out.  In any event, the Bill is not likely to be implemented until Autumn 2026 at the earliest, so we would have to wait some time to see the actual effect of this change (if it makes it into the final iteration of the Bill, which looks likely).   

Other amendments proposed by the Government (aside from the fixing of typos etc) are:

  1. Clarifying the definition of “initial period of employment” which is to be between 3-9 months.   This has implications for the proposed new rules on employees being able to raise unfair dismissal claims from day one subject to an “initial period of employment” or IPE.  During this IPE, employers will be able to operate a “light touch” dismissal process.  We await to hear further detail on what this might entail.
  2. Amendments to the rules re guaranteed hours.
  3. Changes to the rules on entitlement in the event shifts are curtailed/moved/cancelled at short notice. This includes a proposal to give the tribunal the discretion to determine what payment should be made to the individual where a claim is raised, taking into account the severity of matters.
  4. Expansion of the definition of “matters related to equality” so that menstrual problems/disorders are included within it. This would mean that employers who are required to put together an Equality Action Plan may be required to include reference to this in any such plan (or put together a separate plan).
  5. Clarification of trade union rights regarding access to the workplace to confirm that access does not extend to any workplace that is also a dwelling.

Amendments proposed by other MPs include:

  1. A clause that would void any part of a non-disclosure agreement where it purported to prevent the individual from making a disclosure about harassment (including sexual harassment).
  2. A clause prohibiting the inclusion of substitution clauses in employment, worker, or dependent contractor contracts.

It is predicted that most of the amendments tabled by the Government will pass, but it is less clear if amendments proposed by other MPs will make it into the Bill – that will depend on whether the Government backs any of those amendments.

Harassment and Victimisation – Case Update

In the case of Carozzi v University of Hertfordshire, the Employment Appeal Tribunal (EAT) upheld two of the Claimant’s grounds of appeal and confirmed that the Employment Tribunal (ET) had incorrectly applied the legal tests for harassment and victimisation.

Facts of the case:

  • The Claimant was employed by the Respondent in a marketing position. Her employment was subject to a six-month probationary period which was extended on two occasions, but she resigned with immediate effect before it ended.
  • She submitted claims of direct religious and race discrimination, harassment, and victimisation against the Respondent.
  • The claims were complex, with 36 alleged acts of discrimination, including:
    • The Claimant’s line manager changed their attitude toward her after she returned to work from a Jewish family wedding.
    • The Claimant’s religion and cultural background were used against her.
    • Negative remarks were made about her accent, one being that she was told “the team” had trouble with her strong Brazilian accent.

ET outcome:

  • The ET dismissed all her claims. When applying the legal test of harassment to the Claimant’s claims, it considered the meaning of the words “unwanted conduct related to a relevant protected characteristic”. It held that a “mental element” is required, ie. the unwanted conduct must have been “because of” the protected characteristic.
  • In respect of the Claimant’s claims of victimisation, the ET held that an employee of the Respondent’s, who refused to provide notes of a meeting they had with the Claimant, did so because she thought they may give the Claimant “ammunition” in respect of a potential discrimination claim and that she’d have done the same with any other employee who indicated their intention to bring any kind of claim. The claim was dismissed on that basis.

The Appeal:

The EAT upheld two of the Claimant’s three grounds of appeal.

  1. The ET erred in applying the test for harassment to the complaints arising from the Claimant’s accent by saying there required to be a “mental element” for conduct to be “related to” a protected characteristic.  They concluded that, whilst harassment can be “because of” a protected characteristic, the definition of “related to” should be interpreted broadly, meaning that there can be circumstances where conduct can constitute harassment even where the harasser was not motivated by the protected characteristic in question (so long as it “related to” a protected characteristic).
  2. The EAT said that the correct legal test for victimisation was whether the decision to withhold the notes was, to a material degree, made due to the fact that the Claimant indicated she’d bring a complaint of unlawful discrimination, which it was. They also said that the ET erred by concluding the refusal to provide the notes was not detrimental.

Key Takeaway Point

This case serves as a reminder to employers that the definition of harassment in the Equality Act is significantly wider than other types of unlawful discrimination, as a “mental element” is not required for a claim of harassment to succeed. This means that an employer can still be held liable for harassment where their comments or actions created a humiliating and degrading environment (where the comments/actions were related to a protected characteristic) even if that was not their intention.

Definition of “sex” in the Equality Act 2010 – Case Update

The case of For Women Scotland v The Scottish Ministers previously confirmed that the definition of sex is not limited to biological sex.  However, this case has now been brought before the Supreme Court, which has been asked to determine whether references to the word “sex” in the Equality Act 2010 (EQA) should be read as being modified by a gender recognition certificate (GRC), and more specifically, S.9(1) of the Gender Recognition Act, which states that where a full GRC is acquired, the person’s gender becomes the acquired gender for all purposes.

Sex is one of the nine protected characteristics (PCs) in the EQA, meaning that it is unlawful to discriminate against an individual on the basis of a PC (subject to specific exceptions). Currently, the EQA describes the protected characteristic of “sex” as a person being either a man or a woman; a man means a male of any age and a woman means a female of any age.

The term “biological sex” is not referred to anywhere in the EQA. It could be argued that this matters little in practice, as people are protected against discriminatory treatment on the basis of their sex regardless (that is, assuming they are male or female). Transgender people (which includes non-binary people) are, by definition, excluded from protection on the basis of sex; however, they can bring similar claims under the PC of gender reassignment if they suffer discriminatory treatment on the basis of their gender identity, and their legal sex would be largely irrelevant to that determination.

However, as mentioned, the Equality Act contains a number of exceptions to the general rule of unlawful discrimination, and several on the basis of sex. One such example is the provision of single sex services/spaces. In certain circumstances, employers and service providers can lawfully discriminate against an individual on the basis of sex by prohibiting them from entering or using a single sex space or service if they are not of the sex for whom the facility/service is for (but they can only do so in furtherance of a legitimate aim, and must be able to demonstrate that the measures put in place i.e. banning one sex from a facility/service, achieves that aim).

Under current law, this is problematic where a person has a GRC. Can they be lawfully excluded from single sex spaces based on their biological sex, or does the fact they have a full GRC mean that they should be allowed to access single sex spaces based on their acquired gender? This is something that the Supreme Court is set to address (a judgment is expected to be made in the New Year) and clarification will be most welcome.  It is hoped that the Supreme Court will go one step further and provide definitive guidance on what ”sex” means in this context, which would provide employers and service users with some much needed legal certainty.

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