Labour’s employment policy plans: equality law

The number of changes our new Government is proposing to employment law is significant. In this blog we will be focusing on the Government’s commitments on equality in the workplace.  In previous blogs we’ve provided an outline of their manifesto commitments as a whole and what we currently know about timings.

1. Discrimination

(a) Sexual harassment

The previous Government changed the Equality Act 2010 to put employers under a new, positive duty to “take reasonable steps” to prevent sexual harassment. This is due to come in on 26 October 2024. This week, the EHRC opened a consultation on changes to its technical guidance and advice to employers.

Labour have been clear that they want to “strengthen” the new duty. They have indicated that employers should be taking “all reasonable steps” to stop sexual harassment before it starts.

We don’t yet know whether the Government will allow the new duty to come in on 26 October 2024 and make changes later, or if they will defer the change in the law so they can strengthen it first. We think the first option is more likely. Either way, employers will need to review and adjust their practices to ensure they comply with the new duties.

(b) Third party harassment

Labour has committed to extending employer liability for all forms of harassment to harassment from third parties (for example, customers and patients).  This was something that was originally in the Equality Act 2010 but was later repealed, and has been occasionally revisited.

Employers should start thinking about what further steps they could take against harassment from third parties, including:

• risk assessments for customer-facing staff;
• clear signs about zero-tolerance policies; and
• warnings to customers about the penalties of any inappropriate behaviour.

(c) Maternity discrimination

As we all know, if an employer dismisses an employee because she is pregnant, the dismissal will be automatically unfair and discriminatory.

Labour plans to extend this protection to make it unlawful to dismiss a recently-pregnant employee for 6 months after their return to work, with exceptions for “specific” circumstances.

Most employers will already be taking a cautious approach in this area, ensuring the reason for any dismissal is completely unrelated to either pregnancy or maternity.

(d) Menopause action plans

We have been speaking to employers a lot about support for employees going through the menopause. Although not a protected characteristic in itself, lack of appropriate support commonly leads to disability, age and sex discrimination claims.

In their manifesto, Labour set out a plan to place employers with more than 250 employees under a duty to set out the support they will provide in “menopause action plans”. Whilst having a plan is always a good first step, support and guidance from the Government is likely to be key to ensuring plans are implemented.

2. Equal pay

(a) Gender pay gaps

Labour proposes to make it compulsory for employers to publish “action plans” on how they will close their gender pay gaps. Some employers already do so voluntarily, but the rest may need to start factoring this into future planning.

(b) Disability and ethnicity pay gaps

Labour also commit to requiring large employers to report disability and ethnicity pay gaps.

Ethnicity data, especially, is complex. For now, individuals are not required to disclose and employers are not required to collect ethnicity information. Collecting, analysing and reporting ethnicity pay information is going to involve a number of challenges.

Employers are likely to look to the Government for support with calculating and reporting on these pay gaps.

(c) Outsourcing

Another proposal is to bring in measures to ensure that equal pay duties cannot be avoided by contracting out services from the public to the private sector. This would be a very significant change to the ambit of equal pay legislation, and we’d need to see more details before being able to comment on its likely impact.

3. New duties for public bodies

Labour has committed to bringing section 1 of the Equality Act 2010 into force (no order commencing this section has ever been made). This places core public sector bodies (though not organisations like universities) under a duty to make decisions of a strategic nature with “due regard” to exercising them in a way that reduces “inequalities of outcome which result from socio-economic disadvantage”.

Labour has also said they will ensure that the Public Sector Equality Duty extends to all organisations exercising public functions.

In the case of all these proposals, it is a matter of “watch this space”.