Employment Law Newsletter November 2024

Home » News & Blog » Employment Law Newsletter November 2024

News in brief

• A Government consultation on banning zero-hour contracts is open for views until 2 December 2024 – ‘Making work pay: the application of zero hours contracts measures to agency workers’
• The Employment Tribunal has ruled in Thandi and others v Next Retail Ltd and Next Distribution Ltd Leeds ET 1302019/18 that work done by predominantly female store workers was of equal value to that done by their comparators, who worked in Next’s warehouses where a majority of the workers are male. This is the first group action equal pay decision, with five others with similar fact situations imminent. Next has indicated that it intends to appeal.
• The ONS’ Annual Survey of Hours and Earnings has revealed the Gender Pay Gap is continuing to reduce. The pay gap remains higher for employees aged 40 and over than for those aged under 40, and larger for higher earners than for lower paid employees.

Tesco fire and rehire disallowed rules Supreme Court

In Tesco Stores v Union of Shop, Distributive and Allied Workers and others [2024] UKSC 28, five Justices of the Supreme Court, including President Lord Reed, reimposed an injunction preventing the supermarket giant from dismissing staff.

In 2007, Tesco embarked on a reorganisation of its distribution centres, closing some and opening others in new locations. It offered a significant enhancement to the pay of staff willing to relocate from closing centres to new centres. This enhanced pay was referred to as Retained Pay. The terms of the Retained Pay were confirmed in a collective agreement made between Tesco and its recognised union USDAW, which was then incorporated into individual employment contracts as an express term with the words that the Retained Pay provision would “remain a permanent feature” of an employee’s contractual entitlement, subject to certain qualifications.

In 2021, Tesco decided to end the Retained Pay provisions. It told affected staff it would either:

1. remove Retained Pay from their employment contracts in return for a lump sum, or
2. terminate their employment and reoffer positions on the same terms minus Retained Pay (fire and rehire).

Delivering his judgment, Lord Reed said the intention behind offering retained pay ‘”would be completely undermined if the contract permitted Tesco to dismiss the employees whenever it pleased… No reasonable person in the position of Tesco or the relevant employees could have intended the contract to have that effect”.

New Acas guidance on sexual harassment

From 26 October 2024, under the Worker Protection (Amendment of Equality Act 2010) Act 2023, employers have a duty to take steps to prevent sexual harassment. Employees need to be protected from sexual harassment from colleagues and third parties, including customers and clients. To reflect this, Acas has updated its guidance.

The new guidance provides that employers must proactively assess sexual harassment risks and put measures in place to prevent it. Employers cannot simply deal with sexual harassment matters after the fact.

Employers need to consider:

• The risks of sexual harassment occurring in their workplace.
• The steps they could take to reduce identified risks.
• Which of those steps are reasonable for them to take.

The guidance notes that employers should then take the steps they have identified, and that what is reasonable depends on the situation.

When undertaking a risk management analysis, employers should consider that some situations increase the risk of sexual harassment occurring, for example:

• Meeting clients or service users alone.
• An environment where people are drinking alcohol.
• Work-related social events.
• Power imbalances between staff.
• Travelling for work, including overnight stays.

Special considerations should be given to staff who may be particularly vulnerable to sexual harassment, including young females and employees with learning disabilities.

Steps employers can put in place to reduce the risk of sexual harassment include encouraging reporting, outlining expected behaviour and standards for social events, and installing things such as panic buttons that can be used if staff feel at risk from a customer’s or client’s behaviour.

‘This newsletter does not provide a full statement of the law and readers are advise to take legal advice before taking any action based on the information contained herein’.

Get in touch for advice and guidance on these and other employment law issues.