McDonald's recently announced a rollback on some of its ED&I policies. They are anxious to reiterate their ‘steadfast’ commitment to inclusion, but is anyone listening to those protestations? Perhaps not. Similar moves by other US multinationals (Meta, Walmart, Ford) against the backdrop of an ‘anti-woke’ political agenda and a recent Supreme Court judgment against affirmative action in college recruitment would suggest that the USA is moving in a different direction from the UK. We might be united by a common language, but united by similar approaches to ED&I we might not be! 

There are nuances and details behind the headlines, so let's examine where UK legislation and government policy are directing our employers rather than making generalisations about policy and practice in the USA.   

The current UK Government has made it clear that ‘in our modern society and economy, inequality of treatment and opportunity at work is unacceptable’.  We need to drill down to see what this means for UK employers. 

Here are some key pieces of legislation (both current and prospective) which give some clues as to where the current Government is taking their ED&I agenda and what it means for employers. 

Worker Protection (Amendment of the Equality Act 2010) Act 2023 – Duty to prevent sexual harassment of employees at work. 

This legislation, which came into force on 26 October 2024 outlines the new duty for employers to take reasonable steps to prevent sexual harassment in the workplace. Employers must identify the risk of sexual harassment within their organisations and then take steps to reduce those risks whatever they may be. For a more detailed examination of this, please listen to our podcast or refer to earlier blogs:

• Life after #MeToo – Employers must not wait until sexual harassment happens before taking action
• Preventing sexual harassment in the workplace - New updated guidance
• Last Christmas I gave you my heart… this year it will be a robust risk assessment!

This legislation aims for workplaces to have an actual zero tolerance to sexual harassment and not just one proclaimed in policies and mission statements. Employers will drive this by assessing risk, enforcing policies and procedures and creating a culture where employees can speak up knowing they will be heard.

Employment Rights Bill 2023

• Duty to prevent sexual harassment - the Bill will replace the employer’s duty to take reasonable steps with a duty to take all reasonable steps. Regulations are promised but it's unlikely these regulations will contain an exhaustive list of these reasonable steps.
   
• Employers Liable for third-party harassment of staff - under the Equality Act 2010, employers are not responsible for protecting employees from harassment from third parties - these provisions were removed in 2013. It was held at the time that placing this responsibility on the employer was too onerous. Attempts to re-introduce this under the Worker Protection Act 2023 were originally thrown out during parliamentary debates. The technical code published by the Equality and Human Rights Commission on the new duty to prevent sexual harassment in August 2024 made it clear that this duty extends to preventing third-party sexual harassment. Fast forward to the publication of the Employment Rights Bill in October and we find that the new Government intends to re-introduce third-party harassment for all forms of harassment. The requirement for an employee to prove that the harassment had occurred on two separate occasions before an employer could be deemed liable has now been removed. As a footnote, we now also know that a Private Members Bill has been announced which would introduce third-party harassment into the Health and Safety at Work Act 197; an employer’s health and safety duties under this Act would be extended to include specific obligations to address violence and harassment in the workplace with a focus on sexual harassment.  It’s unlikely that this bill will become law but is indicative of the ED&I climate and the drive towards creating safe environments for employees to work. 
   
• Action plans for addressing gender pay gaps and employees through menopause - under clause 26 of the Bill, the Government can issue regulations for employers with 250+ employees to develop and publish Equality Action Plans. These plans must demonstrate the steps they are taking to advance equality between male and female employees, address the gender pay gap and support employees through menopause as well as the need to publish information relating to those plans. The need for action plans is demonstrated by research showing that despite the gender pay gap reporting requirements for employers with over 250 staff, only half reported that they had published action plans to address the gaps. 
   
• Equality (Race and Disability) Bill - this legislation was announced in the King’s Speech last summer, but we have no draft Bill yet. We understand that once published and in force, it will mean that employees from ethnic minorities or with disabilities will have a statutory right to equal pay and mandatory ethnicity and disability pay gap reporting will be introduced for employees with 250 or more employees.     

How should employers respond?

Whilst we might see an increased intentionality of this Government to focus on ED&I issues, much of what is outlined above are not new concepts. The preventative duty was introduced by the previous Government and has been a subject of discussion since the #metoo movement in the 2010s. Third-party harassment was part of the original Equality Act 2010 provisions and there have, since the introduction of gender pay gap reporting been calls to extend that out to ethnicity and disability. 

There are also additional requirements for employers to implement these concepts and ideas at a time when staffing costs are rocketing and economic circumstances are often not favourable. 

How can we help?

• Publishing blogs, updates and podcasts – we will continue to publish our podcasts, blogs and commentary like this one, so subscribe to receive them regularly. 
• Specific advice – we can support you with any issue or matter relating to discrimination whether that be an ongoing tribunal claim or strategic policy advice on moving your organisation forward.
• Risk assessments – fulfilling the preventative duty will start with a risk assessment – we can provide advice on this and proformas to work from. 
• Training  – to implement the new preventative duty and third-party harassment and to set a zero-tolerance culture against all forms of discrimination, new training may be required for all staff and especially for managers who will deal with sexual harassment complaints.  We have a suite of training materials and can provide practical, sector-specific training with case studies to work through.
• Policy work – anti-harassment policies and procedures are key; frequently updated, available policies help to set a culture and will assist in any tribunal defence. We can advise on your existing policies or assist in drafting new copies to take account of the recent changes and obligations for organisations.
• Employment Right Bill Hub subscription service – there is still so much more detail we are waiting for from the Government. Our Hub provides all the information you need in one place; details of the Bill, details of when we expect changes to occur and details of what new legislation is still needed. As part of the Bill, we are providing a subscription service where you will receive details of any updates to the Bill, what that may mean for your organisation and what steps you may wish to take in response. This will be launched on 3 February and will be accessed from our website.

For more information

For more information on any of the topics raised in this blog, please contact me.