Although the Labour government intend to introduce an equality specific piece of legislation - the draft Equality (Race and Disability) Bill - later in this parliamentary session, in advance of that the Employment Rights Bill 2024/25 ("the Bill") strengthens a number of existing rights.
Harassment
The Bill extends the duty to take reasonable steps to protect workers from sexual harassment set out in the Worker Protection (Amendment of Equality Act 2010) 2023 to "all" reasonable steps. While that change may seem onerous, it brings the preventative duty into line with the "all reasonable steps" defence that an employer can rely on currently to defend a claim. From a practical point of view, what is the difference? The Equality and Human Rights Commission Sexual harassment and harassment at work: technical guidance ("EHRC guidance") says an employer will have taken all reasonable steps if "there are no further steps that they could have reasonably been expected to take". What is reasonable will vary from one employer to another. However, the Bill also provides the UK Government power to set out in regulations what steps are to be regarded as reasonable for the purposes of determining whether the employer has taken those steps. Realistically, any such regulations will not provide an exhaustive list - while employers will have to take the steps identified in the regulations, they will also have to take all other steps that are reasonable in the circumstances.
Third-party harassment is also to be re-introduced. While the EHRC guidance makes clear the preventative duty applies to third-party harassment and that they will exercise their powers should an employer breach that duty, the Equality Act 2010 ("the EqA") does not prohibit it and employees have no remedy before a tribunal. The Bill amends the EqA making the employer liable for third-party harassment unless they have taken all reasonably practical steps to prevent it. The third-party liability provisions apply to all types of harassment, not just sexual harassment.
Although disclosures of sexual harassment will, in most cases, already be regarded as protected disclosures under whistleblowing legislation (if they meet the public interest test and count as a breach of health and safety or legal obligations) the Bill adds sexual harassment to the list of what counts as a protected disclosure, making it explicitly clear that whistleblowing legislation covers it.
The policy paper "Next Steps to Make Work Pay" ("the policy paper") which was published contemporaneously with the Bill confirms that a number of the rights contained in the Bill will be consulted upon - this includes the flexible working provisions. However, consultation on the provisions relating to harassment are not specifically referenced so it is not clear to what extent, if any, consultation will take place.
Equality action plans
One of the strongest criticisms of the gender pay gap reporting requirement that was introduced for larger employers (those with 250 or more employees) in 2017 was the omission of a requirement to produce action plans. Arguably without the action plan the duty was to report the gap without any obligation to consider what to do about it. The Bill provides that regulations may require larger employers and certain public authorities to develop and publish an "equality action plan". This covers not only plans for addressing the gender pay gap, but also for supporting employees through the menopause.
The Bill also proposes regulations that will require a large employer who has engaged a contract worker to publish the identity of the provider or employer of that worker. It does not though require the large employer to publish gender pay gap data including what the contract workers are paid.
Strengthened protections for pregnant workers
In April 2024, the "protected period" during which an employer must offer pregnant women and new parents who are on maternity, adoption or shared parental leave suitable alternative employment was extended. The Bill now enables the UK government to make it unlawful for employers to dismiss women who are pregnant, on maternity leave, and during a six month return to work period, except in "specific circumstances".
The policy paper also makes clear that the UK government will expand existing powers in relation to adoption leave, shared parental leave, neonatal care leave and bereaved partners paternity leave to enable the regulation of dismissal in the period after a person returns to work after taking one of these forms of leave.
For more detail on flexible working and the other day 1 rights introduced by the Bill see our article Employment Rights Bill, day 1 rights and flexible working
