The Home Office has released an updated version of its Employer’s Guide to Right to Work Checks. Key changes include the removal of the requirement for employers to carry out repeat checks on individuals with pre-settled status under the EU Settlement Scheme (EUSS). Employers now need to perform a right-to-work check for those holding pre-settled or settled status only before their employment begins.

The revised guidance also provides additional information about the transition from biometric residence permits to eVisas and outlines when follow-up right-to-work checks are necessary.

However, the updated guide does not address a recent change in the definition of “supplementary employment” as announced in the Home Office’s Statement of Changes to Immigration Rules: HC 590 (14 March 2024) and detailed in the Workers and Temporary Workers: Guidance for Sponsors: Part 2 Sponsor a Worker (updated 9 April 2024). This change expanded the definition of supplementary employment to include all roles eligible under the route, rather than restricting it to shortage occupations or roles within the same Standard Occupational Classification (SOC) code as the main sponsored position.

Employers should remain aware of these developments and consult the broader Home Office guidance to ensure compliance with all updated immigration and employment regulations.

A study conducted by Heriot-Watt University has uncovered the ongoing challenges faced by menstruating individuals in professional settings. By reviewing evidence and conducting 55 detailed interviews, the research highlights how menstruation remains a cultural taboo that is often ignored or insufficiently addressed in workplaces.

The Hidden Struggles of Menstruating Employees

The study exposes a range of difficulties faced by women, trans, and non-binary individuals who menstruate. These include:

• Inadequate Facilities: Many workplaces lack proper access to toilets and washing facilities, an issue particularly pronounced in remote or non-office environments.
• Physical and Mental Health Impacts: Menstruation-related pain, mental health symptoms, and societal stigma contribute to additional stress.
• Stigma and Concealment: The pressure to hide menstrual blood is widespread, especially in roles requiring white uniforms, such as laboratory work, where fears of visible “leak-throughs” are a constant concern.

These barriers not only lead to feelings of isolation but also impact concentration, productivity, mental health, and even career choices.

Unique Challenges for Marginalised Groups

The research also sheds light on the compounded difficulties faced by neurodivergent individuals and those with long-term health conditions or disabilities. Specific challenges include:

• Medication Conflicts: Hormone replacement therapies can interfere with other medications, exacerbating health issues.
• Delayed Support: A lack of understanding and support from healthcare providers often results in delayed diagnoses and inadequate workplace adjustments.

The Call for Change

To address these widespread issues, the study calls on workplaces to take meaningful steps towards better supporting menstruating employees. Key recommendations include:

1. Educating Managers: Providing training for line managers to handle menstrual health concerns with empathy and understanding.
2. Inclusive Policies: Introducing menstrual health education programmes and policies designed to remove barriers.
3. Practical Solutions: Ensuring hygiene products are available in all restroom facilities.

Building More Inclusive Workplaces

This research is a powerful reminder that organisations must confront outdated taboos and create environments that respect and accommodate the diverse needs of their workforce. Addressing menstrual health is not merely an act of inclusion; it is essential for promoting healthier, more equitable, and more productive workplaces for everyone.

The Office for National Statistics (ONS) publishes annual data on differences in pay between women and men by age, region, full-time and part-time work, and occupation, as derived from its Annual Survey of Hours and Earnings. The ONS analysis of the gender pay gap is calculated as the difference between average hourly earnings (excluding overtime) of men and women as a proportion of men’s average hourly earnings (excluding overtime) across all jobs in the UK. It does not compare the pay of men and women performing the same job and is distinct from mandatory gender pay gap reporting.

Key insights from the ONS analysis include:

• The gender pay gap has been declining slowly. Over the last ten years, the pay gap for full-time employees has fallen by approximately a quarter. In April 2024, the pay gap for full-time employees was down to 7%, from 7.5% in 2023.
• The gender pay gap is larger among employees aged 40 and older compared to those under 40. While most age groups saw a decrease in the gap between 2023 and 2024, it increased for employees aged 50 to 59, rising from 11.1% to 12.1%.
• Higher earners experience a larger gender pay gap. The pay gap is 15.5% for full-time employees in the 90th percentile of earners, but it is 7.1% for median earners and 2.7% for employees in the 10th percentile of earners.
• The gender pay gap for full-time employees is higher in all English regions than in Scotland, Wales and Northern Ireland.

Mariella Frostrup, a Women’s health campaigner, has been appointed as the Government Menopause Employment Ambassador. In this new voluntary position, she will work with employers across the UK to enhance workplace support for women experiencing the menopause. Her key objective is to help women remain in the workforce and advance their careers despite the physical and emotional challenges associated with menopause. Research indicates that nearly 70% of employed women aged 40-60 report that menopausal symptoms have a negative effect on their work, with over 50% unable to go into work at some point due to these symptoms.

Frostrup’s appointment coincides with initiatives in the Employment Rights Bill, which requires large employers to develop Menopause Action Plans outlining their strategies for supporting employees through the menopause. These proposals highlight menopause as a significant workplace issue, aiming to ensure comprehensive and proactive support for affected employees.

The Department for Business and Trade has published ten factsheets discussing measures included in the Employment Rights Bill 2024-25 (ERB). In addition to a factsheet providing an overview of the ERB, there are factsheets in relation to the following:

• The Adult Social Care Negotiating Body.
• Bereavement, paternity and unpaid parental leave.
• The Fair Work Agency.
• Fire and rehire.
• The School Support Staff Negotiating Body.
• Statutory Sick Pay (SSP).
• Trade unions.
• Unfair dismissal.
• Zero hours contracts.

Each factsheet states the government’s expectation that most reforms will take effect no earlier than 2026.

Each of the factsheets have the same format, with sections setting out the current policy or legal framework, the policy intent, how the reforms will work, and key statistics. They are a useful tool for employers trying to wrap their heads around the new Bill.

If you have any questions about the new Bill and other proposed legislative changes and when they are likely to affect you, contact us at [email protected].

In the case of British Bung Manufacturing Company Ltd and another v Finn [2023] EAT 165, Mr Finn worked as an electrician. In July 2019, a colleague, Mr King, called Mr Finn a “bald c*nt” and threatened him with physical violence. His employer gave Mr King a warning regarding his conduct. On 26 March 2021, Mr King threatened Mr Finn again, and as a result Mr Finn told his employer’s s managing director and company secretary that he had had enough of Mr King’s behaviour and that, if they did not fire him, “that would be it”. He then left the workplace.

Mr Finn was subsequently summarily dismissed for gross misconduct in relation to another matter. He brought claims in the employment tribunal, including for harassment related to sex.

Section 26(1), Equality Act 2010 states that sex harassment occurs where A engages in unwanted conduct related to sex. The conduct must also have the purpose or effect of either violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

In applying his test, the employment tribunal held that Mr King’s conduct towards Mr Finn in July 2019 amounted to harassment related to sex. It was ‘unwanted’, since it was unwelcome and uninvited, and Mr King admitted that his intention was to threaten Mr Finn and insult him.

The comments were also clearly made with the purpose of violating Mr Finn’s dignity and ‘creating an intimidating, hostile, degrading, humiliating or offensive environment’ for him.

The most pertinent element of the judgement was that the tribunal considered that there was a connection between the word “bald” and the protected characteristic of sex. The fact that something could potentially apply to both sexes did not mean that it could not be inherently related to sex. Although baldness affected both men and women, it was more prevalent in men.

Interestingly, the tribunal held that the comment was not harassment related to age, which had also been claimed, since baldness affects men of all ages and was therefore not a characteristic of age.

The employer appealed to the EAT. It argued that in order to be related to sex, baldness would have to apply to one sex to the exclusion of the other. However, the EAT dismissed the appeal. It recognised the fact that the characteristic by reference to which Mr King had chosen to abuse Mr Finn was more prevalent in those sharing Mr Finn’s sex and more likely to be directed towards them. Therefore, it was inherently related to sex.

The Equality and Human Rights Commission (EHRC) has published new guidance on supporting disabled workers with hybrid working. The guidance is intended to help managers and leaders at small and medium-sized employers understand their legal responsibilities and the steps they can take to best support disabled workers.

The guide explains the law related to making reasonable adjustments for disabled workers. It focuses on how to identify when a worker or job applicant may need an adjustment, as well as how to identify barriers to hybrid working and determine the most appropriate adjustments. It also discusses implementation and review of any arrangements agreed, and gives general advice on how to foster a more inclusive working environment which is accessible for disabled workers.

The EHRC gives practical tips such as the usage of workplace assessments to help identify technology that can help disabled employees who work flexibly, and how providing specialised desks can minimise discomfort for staff with musculoskeletal conditions. It also includes case studies highlighting examples of how an employer can implement reasonable adjustments to overcome barriers to hybrid working for disabled staff.

The EHRC has named six organisations for failing to report their 2023-24 gender pay gap data by the deadline. The EHRC has highlighted that failing to provide this data prevents organisations from evaluating their pay disparities and addressing potential discrimination.

In England, public sector employers are required to publish their gender pay gap data by 30 March. Whereas, private and voluntary sector employers across Britain and some public sector bodies in England are required to publish their gender pay gap data by 4 April. Missing these deadlines can lead to a warning notice from the EHRC and formal enforcement action.

Between April and May 2024, the EHRC issued warning and reminder notices to over 600 organisations that had missed the reporting deadline. As a result of the reminders, nearly all of the 600 organisations have provided reports. However, six did not, including:

• Alpenbest Limited, based in Essex;
• Drug Development Solutions Limited, based in Cambridgeshire;
• Apex Prime Care, based in Essex;
• Norchem Healthcare Limited, based in Manchester;
• Ultra Electronics Limited, based in London; and
• Care Quality Services, based in Essex.

If your organisation has 250 or more employees, your gender pay gap data must be reported  each year and this year’s deadline is fast approaching. If you require advice on this matter, please contact our Employment Team.

The EHRC has submitted a report to the United Nations Committee on the Elimination of Racial Discrimination, offering an updated analysis racial discrimination in Great Britain, including workplace rights.

The report revealed that Pakistani, Bangladeshi, and Black groups in Great Britain experience the highest unemployment rates, with Pakistani and Bangladeshi groups also facing the largest pay disparities compared to White British workers. Employment gaps were particularly significant among Pakistani and Bangladeshi women. In contrast, Chinese, Indian, and White Irish workers earned more on average than White British workers.

Additionally, the report found that ethnic minority workers were disproportionately employed in insecure roles such as agency work, casual jobs, seasonal work, and zero-hours contracts.

The EHRC has put forward recommendations to the UK and Welsh Governments to tackle these disparities, including:

• Improving the evidence base on employment gaps.
• Requiring public sector employers in England and private sector employers across England, Scotland, and Wales with over 250 employees to monitor and report on recruitment, retention, and progression by ethnicity, alongside mandatory action plans to address gaps and inequalities.
• For the Welsh Government to ensure that it advances its commitment to tackling the ethnicity pay gap, as outlined in its ‘Programme for Government’.

These recommendations can now be considered alongside the labour government’s plans for reforms to race discrimination laws, including the right to equal pay for ethnic minorities and mandatory ethnicity pay gap reporting for large employers (250 or more employees).

On 18 July 2024, the government published the statutory Code of Practice on Dismissal and Re-engagement (Code). The Code aims to provide practical guidance to employers, employees and trade unions, to help minimise and resolve conflict around dismissal and re-engagement (commonly referred to as “fire and re-hire”).

The Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment of Schedule A2) Order, contains the power for tribunals to apply an uplift or reduction in compensation in collective consultation claims where a party failed to follow the Code. This amendment takes effect on 20 January 2025.

From that date, employers must account for additional financial risks in redundancy scenarios. If a breach of the statutory Code of Practice on Dismissal and Re-engagement is deemed likely, an uplift of up to 25% could apply—significantly increasing the potential liability beyond the previously assumed cap of 90 days’ gross pay per employee.

The EHRC has revised its guidance on advertisements to assist advertisers in ensuring their content complies with the law and does not discriminate.

A discriminatory advertisement restricts access to jobs, goods, services, or facilities based on a protected characteristic under the Equality Act 2010. Such advertisements are unlawful unless permitted under specific, limited exceptions outlined in the Act.

In some cases an employer can say that an applicant must have, or must not have, a certain protected characteristic. This is known as an ‘occupational requirement’.

The occupational requirement can only be for a specific job, not for all jobs with an employer.

For it to be an occupational requirement, both of the following must apply:

• the protected characteristic is essential for and relates to the main tasks of the job; and
• there is ‘objective justification’.

There can be objective justification if the employer can prove: there’s a ‘legitimate aim’, for example, a genuine business need or a health and safety need, and the discrimination is ‘proportionate, appropriate and necessary’.

The updated guidance clarifies the application of “occupational requirements” under the Equality Act 2010, highlighting that these exceptions are sometimes misused, particularly regarding the protected characteristic of sex. It specifies that occupational requirements related to “sex” refer to the legal sex recorded on an individual’s birth certificate or Gender Recognition Certificate.

The growing culture wars regarding working patterns could widen further this year, not just around hybrid and home working, but also, with the challenge to the traditional 5-day week. Described by the 4 Day Week Foundation as outdated and no longer fit for purpose, more and more UK employers are questioning whether it brings out the best in their employees or whether there is a more modern way of working.

In response to the increasing momentum for change, the 4 Day Week Foundation is planning at least three new four-day week pilots throughout 2025, testing the waters with the Labour government. Results of the latest trials are expected in this Summer.

The Foundation claims that almost 200 businesses have switched to a 4-day week permanently after trials revealed higher productivity and improved recruitment. It attributes this to a better work-life balance for employees, ‘creating time to live happier and more fulfilled lives’ and reduced costs in childcare and commuting.

Whilst proposals for a 4-day week are not the basis of any formal government policy, there is a different narrative in Westminster compared to the previous conservative government, which had told one local authority which trialled it in 2023 to “stop your experiment immediately”. We will wait and see whether or not the growing trend will continue to be offered by some employers as part of a competitive benefits package or whether it will be supported by legislative changes.

In Bugden v Royal Mail Group Ltd [2024] EAT 80, the Employment Appeal Tribunal (EAT) ruled that a tribunal had made a mistake by not considering the possibility of redeployment when assessing the fairness of a disabled employee’s dismissal. However, the tribunal did not make a mistake in failing to consider redeployment as a reasonable adjustment, as this issue had not been argued or included in the list of issues.

The EAT found that the tribunal failed to evaluate whether the employer had considered redeployment as an alternative to dismissal. The employee, who had multiple physical and mental disabilities, was dismissed under an attendance management policy after 32 periods of ill-health absence totalling 297 days over four years. Although the tribunal initially rejected his claims of unfair dismissal and disability discrimination, the EAT upheld his appeal regarding unfair dismissal. The EAT decided that the employer should have considered redeployment before dismissing the employee. The tribunal erred by failing to address this issue when determining whether the dismissal was reasonable, even though it was not raised by the parties. Consequently, the unfair dismissal claim was sent back for reconsideration.

However, the EAT dismissed the appeal regarding the failure to make reasonable adjustments. The tribunal was not wrong for not considering redeployment as a reasonable adjustment, as this argument was not presented at trial or included in the list of issues. Although the employee’s mental health was a contributing factor to his absences, redeployment was not identified as a necessary adjustment by the occupational health reports, the employee himself, or the employer.

In Adams v Edinburgh Rape Crisis Centre (ETS/4102235/23), an employment tribunal found that an employee had been discriminated against and constructively dismissed due to her gender-critical beliefs.

The tribunal determined that Ms. Adams, who believes biological sex is real and distinct from gender identity, had been supportive of trans inclusion but held that survivors of sexual violence should have a choice about the sex of their support worker. Ms. Adams worked at Edinburgh Rape Crisis Centre (ERCC), which had an occupational requirement of hiring only women and a policy supporting women, trans, and non-binary people. After the appointment of a new CEO, a trans woman without a gender recognition certificate, Ms. Adams grew concerned about ERCC’s stance on gender identity, which conflicted with her beliefs. When a service user questioned the gender of a colleague who had adopted a male name, Ms. Adams suggested responding that the colleague was born female but now identifies as non-binary.

Before an investigation was conducted, the CEO emailed staff, claiming Ms. Adams had humiliated the non-binary colleague, that they would not work together again, and implied Ms. Adams was transphobic. These actions were held to be gross misconduct, and her grievance was dismissed.

The tribunal concluded that Ms. Adams had been harassed, and that these actions also amounted to direct discrimination. Furthermore, the ERCC had indirectly discriminated against her by treating the expression of her gender-critical views as a disciplinary issue. The CEO’s own beliefs played a role in the decision to take disciplinary action. The tribunal found that ERCC had breached the implied term of mutual trust and confidence, resulting in Ms. Adams’ constructive dismissal.