HR briefing - May 2022

30 May 2022

Welcome to this month's briefing for HR teams and in-house employment counsel – bringing you this month’s employment and immigration law highlights in an easy-to-read package.


One employment case managed to make the front pages of the national press this month, with commentators up in arms about a Tribunal’s ruling that insulting a man by calling him “a bald c***” amounting to harassment. This was said by some to trivialise the daily grind of insulting sexist behaviour so women are forced to tolerate in the workplace. In fact the judgment proceeds on well-established principles: harassment is defined by the Equality Act 2010 as conduct violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them. General rudeness is not enough; the conduct has to be related to one of the specified protected characteristics (race, sex, age, disability etc). A single remark can be enough, as in the often-cited case from 1995 where a single remark about the size of a woman’s breasts was (quite rightly) held to amount to harassment. Drawing a parallel with that case, the Tribunal here concluded that a remark about baldness was vastly more likely to be directed at a man, was offensive in this context, and so met the legal threshold. When giving equality, diversity and inclusion raining to clients, we are always at pains to stress the very fine line that exists between light-hearted chat between colleagues and harassment. Conduct that oversteps the line – often wrongly excused as banter by some – can create a poisonous atmosphere in the workplace and costly legal liabilities.

Menstrual leave

Spain has proposed new legislation that would see women who suffer from severe period pain being entitled to three or five days’ additional leave per month. This innovative measure has been welcomed by some UK charities, who have called on the UK Government to introduce something similar in the UK, rather than obliging women who are in too much pain to attend work to use the sick pay regime. As Irene Montero, Spain's equality minister, says, perhaps it is time “to put an end to the stigma, shame and silence surrounding menstruation”.

Health and safety

Loyal readers will recall that we published a number of guidance notes at the beginning of the pandemic drawing employers’ attention to the dangers of dismissing or sanctioning employees who refused to attend the workplace because of a fear of Covid-19. Protection is engaged where an employee leaves work or refuses to attend “in circumstances of danger which the employee reasonably believed to be serious and imminent”. The Employment Appeal Tribunal (EAT) has considered that protection for the first time in a Covid-19 context. The employee worked in a relatively large and spacious factory, with relatively few staff on site at any one time. At the beginning of the first lockdown, an external risk assessment was commissioned and the recommendations as to ventilation and social distancing duly implemented. The employee, however, said that he felt generally unsafe outside his house, did not want to put his child (who had particular vulnerabilities) at risk, and so would no longer turn up for work. He was dismissed some months later, and brought a claim for unfair dismissal. Unfortunately for the employee in this case, he had decided to drive a friend to hospital and had also taken part-time work in a bar. That fatally undermined his suggestion that he genuinely regarded Covid-19 as having created a serious and imminent risk for him, and so his claim was rejected. The EAT carefully analysed the statutory language however, noting that protection is only available where an employee cannot reasonably be expected to avert the danger in question. Here, social distancing, handwashing and using a mask would have been steps the employee could have taken, which also meant his claim could not succeed. While every case is fact-sensitive, this decision underlines the general proposition that an employer who has rigorously followed the Government’s guidance at each stage will usually be insulated from liability.

Queen’s Speech

The Queens Speech did not include the long-awaited Employment Bill, so substantial change to the employment landscape is not imminent. Instead, the Government has proposed very minor amendments that would see the national minimum wage imposed on ships using UK ports, a ban on exclusivity clauses for the very low-paid, and some easing of data privacy controls. The last of these is by far the most potentially significant for business but, as ever, the precise details of these measures will be important. We shall continue to monitor developments closely.

Trans guidance

The Equality Act permits services to be provided separately to different sexes in some circumstances: for instance a gym might reasonably wish to have separate changing facilities for men and women. How those provisions apply to trans people can be problematic, and tends to generated heated opinions on both sides of the debate. The Equality and Human Rights Commission has published some helpful guidance to try to help organisations navigate these tricky issues, making the sensible general point that most decisions involve balancing the needs of all service users. Careful documentation of the policy underpinning each decision would therefore be a prudent way of demonstrating that proper thought has been given at each stage to tat balancing act.

UK immigration rules

On 15 March 2022, the UK Government announced significant changes to the UK immigration rules. These changes take effect on various dates between 6 April 2022 and 22 August 2022. The changes include introducing new immigration routes, as well as rebranding and updating existing routes to attract top talent to the UK.

Many of the new routes are part of the Government’s efforts to recruit and retain top international talent and address concerns about labour shortages in the UK.

We set out an overview of the new rules in this article.