Employment Law Insight: December 2024

As Christmas approaches, we welcome you to the December edition of our Employment Law Insight.  

This month’s edition provides commentary on the recently released Get Britain Working White Paper, with the Government referring to “the biggest reforms to employment support for a generation, bringing together skills and health to get more people into work and get on in work.”  

We have included a short update on the new employer obligation to prevent sexual harassment at work, as sexual harassment remains an important issue, and also topical following allegations of inappropriate remarks and behaviour by MasterChef’s Gregg Wallace. Employers interested in understanding when they will be liable for their employees’ acts should find our article on vicarious liability useful.   

With the Christmas party season upon us, Lucy Trynka has recently featured in an article in the Guardian newspaper which is testament to her expertise on issues that can arise out of the office Christmas party! You can read the article here  

We hope this edition provides valuable insights as you prepare to close out the year and plan for the opportunities and challenges of the year ahead.

From all of us at Rollits, we wish you a Merry Christmas and best wishes for the New Year.

How employers can ensure Christmas remains merry and risk-free!

As scary as it sounds, the festive season is fast approaching and it is time for our annual top tips on how employers can prepare in order to avoid dropping any workplace Christmas clangers!

As you should be aware from a previous article on this topic, employers are liable for the acts of their employees undertaken in the course of their employment and multiple tribunal judgments have confirmed this would include work-related events such as work organised Christmas parties (and in certain circumstances, staff organised ‘after parties’).

The risks for employers are arguably greater this year, following the implementation of the Worker Protection Act (Amendment of Equality Act 2010) on 26 October 2024. This Act created a new preventative duty on employers to take reasonable steps to prevent sexual harassment of their workers in the course of employment and accompanying guidance from the Equality and Human Rights Commission (EHRC) confirmed that this duty extends to preventing sexual harassment of workers by third parties. This could therefore include sexual harassment of employees by wait staff at the Christmas party venue.

If an employee brings a successful claim of sexual harassment, a Tribunal will go on to consider whether their employer took reasonable steps to prevent sexual harassment of their workers generally (i.e. not just to prevent the specific act of sexual harassment complained off). If it is found they have not, any compensation awarded can be increased by up to 25%. This can vastly increase already significant sums – with discrimination and harassment compensation awards being uncapped.

We would advise employers to take additional steps this festive season to ensure they are complying with the new duty, for example by communicating to the Christmas party venue that it has a zero-tolerance policy towards sexual harassment and enquiring as to their own policies on this topic and the steps they take to keep patrons safe whilst on the premises. Employers may consider attending the venue in advance to ensure that appropriate steps are being taken.

As always, there are some obvious ways employers can reduce the risk of incidents at Christmas parties. For example, by limiting the amount of free alcohol provided to employees by providing one or two free drinks only and sending an office wide email prior to the event reminding employees of the expectations on them whilst attending work social events and of the need to conduct themselves appropriately. Employees should be aware that the usual grievance and disciplinary procedures remain applicable when attending work related events.

This all sounds a bit doom and gloom, however employers can choose their wording carefully in order to get across the messaging required and mix it in with some upbeat commentary regarding the event itself, what entertainment will be provided and how much it is looking forward to celebrating the festive period and rewarding employees at the end of a busy year! Employees can also be reminded of other benefits they will receive around the Christmas period, such as Christmas elevenses, wreath making workshops and time off around the Christmas period!

If you have any concerns in advance of the Christmas period, particularly in light of the new legislation, please get in contact with our Employment team who would be more than happy to assist.

Vicarious Liability – What Employers need to know 

Vicarious liability is a common law theory which means that employers may, in certain circumstances, be held responsible for the wrongdoing of their employees, despite the employer not necessarily having committed a wrongdoing themselves. This includes wrongful acts during the course of their ordinary employment. What is deemed to be within the employees’ ordinary course of employment varies according to different circumstances. 

Although vicarious liability does not eliminate liability of the individual wrongdoer, it often ensures an appropriate remedy for the victim as the employer often has more resources available.

Actionable wrongdoings which employees may commit during their employment are wide-ranging, holding many consequences for employers through vicarious liability. Examples may include things such as negligence, causing a loss to be sustained by the opposing party, or an injury in the work place, acts of violence or sexual abuse towards another employee, or a breach of data protection regulations and discrimination.

A “close connection” test must be satisfied. It must be established whether the wrongdoing was so closely connected with the acts which the individual was permitted to undertake. If this is deemed to be the case, it is then ascertained as to whether the acts can fairly and properly be deemed as having been done during the course of their employment or their relationship akin to employment.

Unfortunately for employers, a sufficiently close connection has been established in surprising and shocking circumstances. For example, In the case of Lister v Hesley Hall Ltd [2001]  the employer of a warden was vicariously liable for his sexual assault of boys who were resident at a boarding school on the ground that he was entrusted to care for children.

In Bellman v Northampton Recruitment Ltd [2018]  following an assault by a managing director on an employee of the company at an out of hours drinking session the Court of Appeal found that although the drinking session was not a seamless event with the works Christmas party, there was sufficient connection between the managing director's field of activity and his wrongful conduct to make it right that the defendant be held vicariously liable.

In Mattis v Pollock [2003] the claimant was stabbed by a nightclub doorman. The attack occurred away from the club and some time after an earlier argument which had taken place in the club. The Court of Appeal concluded that vicarious liability arose because the attack was related to events which occurred within the club and the doorman was authorised to use force as part of his duties. The act was established to have a close connection with his duties as a doorman to carry out his role in an aggressive manner.

The need to be aware of their potential susceptibility to being held vicariously liable for the actions of employees is of particular importance given the shift in trend to individuals often choosing to work from home and the consequential lack of direct supervision.

Employers can take steps to prevent becoming vicariously liable through offering additional training on things such as GDPR and IT and implementing and re-enforcing policies and procedures.

The employer can in certain situations recover the loss sustained arising from being held vicariously liable for the employee’s actions. For example, a claim under section 1 of the Civil Liability (Contribution) Act 1978 allows the employer to recover a contribution towards the damage.

New preventative duty to prevent sexual harassment at work – guidance update

On 12 November the Equality and Human Rights Committee released further guidance in relation to the preventative duty in relation to sexual harassment at work. The guidance provides a precedent checklist and questions which may be appropriate to ensure the checklist is adapted to the relevant sector accordingly. The guidance also includes suggested actions, action plans and monitoring logs to ensure a record is kept to show when and how checklist have been used. The guidance can be found using the following link: Preventing sexual harassment at work: checklist and action plan for employers | EHRC

Get Britain working again 

On 26 November 2024 the UK Government released its White Paper ‘Get Britain Working’. The Paper highlighted the plans for the labour government to grow the economy, improve economic activity and provide opportunities for people to enter work or education irrespective of factors such as race, disability, gender or religion.

This Paper is part of wider government action to spread opportunity and fix the foundations of our economy. The launch of Skills England to create a national plan to boost skills, create better and higher paying jobs through the modern Industrial Strategy and the Plan to Make Work Pay all compliment the White Paper.

As of November 2024, 2.8 million people in Britain are on long-term sickness, 1 in 8 young people are not in any form of education, training or employment and 9 million adults lack the basic skills to enter work or training.

Labour market opportunities also differ throughout Britain. The access to skilled jobs, earning potential and employment rates differ significantly between areas. Economic inactivity is highest in the North of England, Wales and Northern Ireland. Over 25% of people age 16-64 in the North of England are economically inactive, in stark contrast to 17.7% in the South East.

As of the release of the White Paper almost 900,000 people between 16-24 are currently not in work or education. This not only sets a worrying trend but highlights the issue that too many young people leave school without the basic reading, writing, maths or digital skills to enter further education or employment. 

2.6 million more people in the working-age population than a decade ago are classed as disabled. The employment rate of disabled people is 53%, almost 29% lower than that of non-disabled people. Ill-health also effects the prospects of employment for friends and family members who may provide unpaid care, thus reducing the opportunity to find, keep and maintain employment.

The Government has acknowledged that the transformation of such scale set out in the White Paper will take time to deliver. In helping make this process significantly shorter, consultation and engagement with various stakeholders and public bodies is required. The Government plans to establish a panel to consult disabled people to receive suggestions directly and engage with the newly-formed Labour Market Advisory board for idea and insight. The items at the top of the agenda of the Board include that of job quality and progression, health and inactivity and regional inequalities.

In order to ‘Get Britain Working’ the government has set out in the White Paper its ambition to do so on a basis of external benefit to the wider community and economy, not just the individual in work. The plans are to create and maintain high-quality jobs in sectors for the future including that of renewable energy, reduce barriers to help in relation to childcare, caring responsibilities, transportation links and affordable housing. There is also a commitment to tackle child poverty across the UK alongside the ambition to get more people into well-paid and secure employment or training.  

As part of the proposals in the White Paper the Government sets out its intention to transform Jobcentre Plus into a genuine public employment service. This will allow for personalised support to help people into work, build skills to assist this, enhance relationships with employers and bring in external support through local services and organisations.

A successful example of a working partnership between Jobcentre Plus and a recruiter is that of B&M. Since 2019 a partnership between the two has ensured that B&M uses the Jobcentre Plus as its preferred recruitment partner, giving candidates the opportunity to skip the CV and application form process and secure an interview. This is done through holding Group Information Sessions with candidates giving them the chance to learn about the company before a guaranteed interview. As a result of this partnership over 85% of new store hires in 2024 across B&M has come from Jobcentre referrals.

Amendments to the Employment Rights Bill (proposed employment law changes)

The Employment Rights Bill (Amendment Paper) was released on 27 November 2024 listing all amendments to the Employment Rights Bill (“the Bill”). The Amendment Paper is a 53 page document setting out each amendment with an explanatory statement. Some of the key suggested amendments are outlined below:

1. Increasing the time limit for bringing proceedings under the Employment Right Act from three months to six months;
2. The definition of initial period of employment within the unfair dismissal regime will be deemed between 3 months and 9 months;
3. Clarification of the meaning of “short notice” in relation to when a shift is moved and curtailed and changes to any remuneration in cases of short notice of shift movement and curtailment.
4. There has been expansion to the definition of “matters related to gender equality” to include menstrual problems and menstrual disorders relating to the requirements of Employers to provide equality action plans pursuant to the Employment Rights Bill.
5. Clarification as to the requirements of trade unions to have a certificate of independence in order to exercise their right to access workplaces under clause 46 of the Bill and that this right “does not include any part of a workplace used as a dwelling.”

 Additionally, MPs have suggested certain amendments, including deeming any non-disclosure agreement which “prevents the worker from making a disclosure about harassment (including sexual harassment)” as void. The Committee has a variety of meetings planned to consider the Bill and the proceedings shall conclude on Thursday 21 January 2025 at 5.00pm.