Welcome to this month’s edition of Worked Up – your one-stop shop for the latest updates in employment and immigration law.

In this month’s update, we consider what is happening with Labour’s much publicised employment law revamp, whether an employee’s belief in English nationalism amounts to a protected belief under the Equality Act 2010 and summarise the implications of the recently launched Electronic Travel Authorisation scheme.

If you would like to discuss any of the below updates, please do get in touch. Alternatively, if you would like to receive these updates directly to your inbox, please subscribe here.

What happened to the “biggest upgrade to workers’ rights in a generation”?

When the expression of nationalism meets the tenets of a democratic society: the legal limit of anti‑Islamic beliefs

Navigating the Electronic Travel Authorisation (ETA) Scheme for Employers

If you want to stay ahead of the curve and keep updated on the key employment and immigration changes (including proposed legislation, consultations and case law) on the horizon over the next 24 months, check out our “What’s on the horizon” tracker.

An update on the employer’s new preventative duty in relation to sexual harassment: is your workplace ready?

The new duty requiring employers to take “reasonable steps” to prevent sexual harassment in the workplace will finally come into force on 26 October 2024: see our blog here to understand the significant consequences this will have on workplace culture and policies. Here is also the definitive guidance from the EHRC, published on 26 September 2024, which includes the following updates from their previous guidance from July 2024:

• The mandatory requirement to take “reasonable steps” to prevent sexual harassment in the workplace only applies to sexual harassment, although employers should take steps to prevent all types of harassment in the workplace;
• An employer is unlikely to comply with the preventative duty unless they carry out a risk assessment; and
• Workers can report concerns to the EHRC if they believe the preventative duty has been breached by their employer.

For our Film and TV clients who are members of PACT, don’t hesitate to join us for a webinar we’re hosting for PACT on this topic on Thursday 10 October – sign up here or by clicking the image below.

Despite the highest number of Bills announced in the King’s Speech in almost 20 years (with the new government promising quite a lot on the employment front – see here for a reminder), the legislative front has been rather quiet during the first 100 days since the momentous election result back in July. It appears the realities of being in charge (such as having to deal with donated designer sunglasses and the joys of ‘internal’ politics related to the PM’s closest advisers) have perhaps settled in…

We’ve still heard nothing on the new Employment Rights Bill specifically, although rumour has it we’ll be getting full details Thursday 10 October 2024. We’ll be tuning in with great interest and will let you know our thoughts once we’ve digested. In the meantime, there’s been a few reports in the media over the last couple of months which have caught our eye:

1. On the new ‘day one’ unfair dismissal right, which was the key headline in relation from the previously teased new Employment Rights Bill, it’s been reported that the right will not apply during an employee’s probation period provided probation lasts no more than six months. We really need to see the detail on this (particularly whether dismissal during probation is completely risk-free, or some sort of streamlined process will be needed) but the suggestion of a six month ‘cooling off’ period is positive and arguably reasonably necessary from an employer / business perspective;
2. Another key proposal to look out for is the mooted “right to disconnect”. Again, we have no details as yet, but the aim is to grant employees the legal right to disengage from work communications outside of contracted hours. This is designed to help reduce stress, prevent overwork and increase wellbeing and job satisfaction in an increasingly digitalised landscape. It’s also thought this may actually improve productivity, as well-rested employees are more likely to perform well during work hours. However, this new right poses potential challenges for businesses that require flexibility and responsiveness, particularly in sectors where urgent or after-hours communication may be unavoidable; and
3. Labour has directed the Low Pay Commission to take inflation into account when determining the new National Living Wage and National Minimum Wage rates to ensure wages better reflect the cost of living. With minimum wage rates having increased considerably in recent years, rates are now starting to become relevant in many sectors that typically have always paid significantly above the minimum wage, such as the Film and TV industry.

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Thomas v Surrey and Borders Partnership NHS Foundation Trust [2024] EAT 141

Facts: The claimant, Mr Thomas, was contracted through an employment agency to provide consultancy services to the respondent Trust for nearly three months. A few days before his contract ended, the Trust decided not to re-engage him due to the discovery of an unspent conviction he had not disclosed. Mr Thomas believed the true reason for terminating his position was his political ties, particularly his candidacy for the English Democrats from 2004 to 2016. He argued that this was discrimination based on his philosophical belief, which he characterised as “English nationalism”, and that his beliefs were protected under the Equality Act 2010 (‘EqA 2010’).

Judgment: In first instance, the Employment Tribunal (‘ET’) ruled that Mr Thomas’ belief in English nationalism alone may be capable of protection under the EqA 2010. However, given anti-Islamic views also formed part of this belief, it could not qualify for protection under the EqA 2010 as such beliefs were deemed incompatible with the values of a democratic society, the fifth limb considered from Grainger plc v Nicholson. His prejudice of Islam, to the exclusion of all other religions, was considered to infringe on human dignity​.

Mr Thomas appealed. The Employment Appeal Tribunal (‘EAT’) upheld the ET’s finding, dismissing his appeal. Mr Thomas’ beliefs were more than just offensive, shocking or disturbing (each of which may potentially be permissible in certain circumstances) – instead, they were a “generalised form of harassment targeting one particular religion” and a “disdainful and prejudiced focus on Islam“.

Takeaway: Beliefs advocating intolerance, discrimination, or exclusion of specific groups or religions, such as Islam, fall outside the protective scope of the EqA 2010 and the European Convention on Human Rights. While individuals are entitled to their beliefs, those that incite hatred or threaten the rights of others are not protected under UK law​. As such, employers should not be afraid to clamp down on inexcusable behaviour that goes beyond simply expressing a belief and instead is violently and repeatedly targeting one group.

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In November 2023, the UK government launched the ETA scheme to enhance pre-arrival screening for certain nationals traveling to the UK. This new system marks a significant shift in how the UK regulates visitor entry. As the scheme expands to cover more nationalities, employers must familiarise themselves with the ETA scheme and its implications for business operations.

What is the UK ETA Scheme?

The ETA scheme seeks to address gaps in the UK’s immigration system by requiring pre-authorisation before international arrival. It applies to individuals visiting the UK for up to six months or under the Temporary Work – Creative Worker visa route.

The scheme’s implementation is being phased in by nationality. Nationals of Qatar were the first required to apply for an ETA from November 2023. Middle Eastern countries followed in early 2024, and several Commonwealth and European countries are currently being added. By April 2025, all nationals (including ‘non visa’ nationals such as Europeans and Americans) without an existing UK immigration status will need an ETA to enter the UK.

Suitability Criteria and Application Process

The ETA application process is relatively straightforward. Applicants must complete an online form or use the ETA app to pay a £10 fee, submit passport details and a passport photo, and answer suitability questions related to criminal history and previous immigration violations.

Implications of Refusal

A refusal of an ETA does not result in a complete ban on UK entry. Travelers denied an ETA can still apply for a visa through standard routes, such as the Standard Visitor Visa or the Creative Worker Visa. Although refusals are expected to be rare, individuals facing refusal may need to go through a more complex visa process to gain entry.

Key Takeaways for Employers

Employers should get to grips on the requirements and implications of the ETA scheme when bringing international colleagues, guests, or talent into the UK. It’s essential to recognise that processing times for ETAs can take up to three days or even longer, so incorporating this timeframe into logistical planning is crucial to avoid delays. Moreover, as the ETA is valid for two years or until the expiration of the associated passport, employers should verify that the authorisation remains valid for any further trips to the UK. This proactive approach will help ensure seamless entry for international visitors and minimise potential disruptions to schedules.

Initial border delays are expected as the system is fully rolled out, so travellers and employers should prepare for potential wait times during entry.

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