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

This month’s updates cover the substantial increases to the Immigration Health Surcharge, explore the latest duties for employers in respect of protecting employees from sexual harassment, consider whether views opposing critical race theory are worthy of protection under the Equality Act 2010, and summarise the latest government guidance on assisting employees going through the menopause. On this topic, we recently also published an article on two landmark cases which highlight the risk of menopause discrimination.

In other news, the government has just published a draft statutory instrument to implement reforms to: (1) simplifying holiday pay calculations and permitting ‘rolled-up’ holiday pay for those working irregular hours and/or part of the year; (2) reducing the record keeping requirements under the Working Time Regulations 1998; and (3) simplifying the consultation requirements under the Transfer of Undertakings (Protection of Employment) Regulations 2006. This is a significant development, and we’ve recently published a standalone blog on this detailing some of the potential practical implications of this proposed legislation.

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.

Visa applicants expected to pay (more) as Immigration Health Surcharge set to increase in early 2024
A curtain call for sexual harassment? An analysis of the new duty for UK employers
Menopause awareness takes a step forward as parliament publishes employer guidance and Menopause Manifesto
Navigating shades of belief: Corby case demonstrates that protected beliefs on critical race theory are not always black and white

With the SAG-AFTRA strikes officially over and productions coming back in full-swing, now is as good a time as any to get the low-down from Seth Roe and Bee Sloan on the use of loan-outs within the Film and TV industry in one of our recent Wiggin+ videos:

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.

The proposed increase to the Immigration Health Surcharge (IHS) is now due to come in by 16 January 2024 at the earliest.

The Immigration (Health Charge) (Amendment) Order 2023 has been laid before parliament and will require both houses to approve. Paragraph 1(2) of the Order gives the proposed commencement date.

Once enacted, this Order will increase the IHS from £624 per year (for an adult applicant) to £1,035 per year. For children, the IHS is increasing from £470 per year to £776 per year. Whilst in isolation these figures may not appear significant, from a practical perspective these increases may serve as a barrier to entry for some visa applicants. For example, for a family of four applying for a 3-year visa, the cost alone would be over £10,000.These increases to the IHS are perhaps not surprising, particularly given the amount in revenue the IHS generates. Indeed, the House of Commons Library recently published an interesting briefing on the background to the IHS, revealing that between April 2015 and April 2023, the surcharge raised £5.1 billion in revenue.

Takeaway: Since the surcharge is levied at the point of a visa application and covers the years that permission is being granted for, canny applicants might want to try to apply before 16 January 2024 to make significant savings (if possible). Indeed, it’s not unlikely that UK visas may see a surge of applications before the commencement date.

The increased charge is also likely to result in requests for employers to cover this cost for visa applicant employees and, therefore, necessitate loan or clawback agreements, which should be carefully considered and properly drafted to avoid issues further down the track.

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The Worker Protection (Amendment of Equality Act 2010) Act 2023 has received Royal Assent on 26 October 2023 and will come into force in October 2024. The Act amends the Equality Act 2010 to introduce a new statutory duty on employers to take reasonable steps to prevent sexual harassment in the workplace. It also gives employment tribunals the power to uplift compensation by up to 25% where an employer is found to have breached the new duty.

The legislation originally started as a private members’ bill and was introduced by Wera Hobhouse MP, who has described it as “the beginning of a much-needed culture change”. It follows a poll carried out by TUC earlier this year which found that 58% of women and 62% of women aged between 25 and 34 have experienced sexual harassment, bullying or verbal abuse at work.

Throughout its passage through parliament, the protection afforded by the Act was diluted considerably. The House of Lords, for example, removed the provisions regarding employer liability for employee harassment by third parties. The drafting was also amended so that employers will be required to take “reasonable steps” rather than “all reasonable steps” to protect employees from sexual harassment. Despite the watering down of these provisions, the new legislation represents an important step towards protecting employees against harassment and holds particular relevance for the Film and TV and games industries, given the continued focus of #MeToo in those sectors.

Takeaway: The introduction of the Act requires employers to be proactive in preventing sexual harassment in the workplace. The Equality and Human Rights Commission intends to issue new guidance setting out the steps that employers must take before the legislation comes into force next year. Now is a good time for businesses to get ahead by ensuring (at the very least) robust anti-harassment policies are in place and effective training is being rolled out to all staff.

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The Government’s Menopause Employment Champion. The Department for Work and Pensions recent policy paper, “No Time to Step Back: the government’s Menopause Employment Champion”, encourages employers to develop menopause policies to create more supportive environments to help those experiencing menopause to stay and progress in work.

The paper sets out a Four Point Plan developed by Helen Tomlinson, the government’s Menopause Employment Champion. The plan covers: (1) sharing of employer best practice through a free portal open to all employers; (2) a national sector-specific allyship programme; (3) a national programme of menopause-friendly employers helping smaller organisations gain access to guidance and support and (4) a communications plan to improve the working lives of those experiencing menopause actioned through the amplification of strategic partnerships.

The policy details the progressive approach of several multi-national companies but also the poor practice that is still evident in certain sectors.

Manifesto for Menopause. In a move towards addressing the challenges faced by those experiencing the menopause, the All-Party Parliamentary Group (the “APPG”) has recently unveiled a Manifesto for Menopause (the “Manifesto”). This initiative calls on all political parties to commit to 7 reforms ahead of the next General Election. With 1 in 10 women leaving their jobs due to menopause symptoms, the APPG are keen to provide those experiencing women with the confidence to continue in their careers and boost the economy.

One of the key proposals is the mandate for employers with over 250 employees to implement menopause action plans. These plans are designed to provide tangible support to employees navigating the complexities of the menopause. Furthermore, in recognising the resource constraints of small companies, the APPG has emphasised the need for specific guidance tailored to small and medium-sized enterprises with the view of empowering these enterprises to implement effective strategies that support employees going through the menopause. The Manifesto also proposes the introduction of tax incentives to encourage employers to integrate menopause considerations into occupational health practices. By offering financial incentives, the initiative seeks to motivate companies to prioritise the health and well-being of employees navigating this point in their life.

In essence, the Manifesto is a call to action for political parties to pave the way for transformative changes in the workplace, ensuring that the menopause is no longer a silent struggle but a supported and understood aspect of professional life.

Takeaway: Both updates demonstrate the government’s eagerness to put menopause higher on the agenda by encouraging (and mandating) employers to take positive action to not only support those going through the menopause but also to promote best practice so that all workplaces promote a culture that is inclusive and supportive. The menopause shouldn’t be a topic that employers disregard or just focus on for National Menopause Awareness Day, and proactive steps should be taken to assess and improve current practices.

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Corby v Advisory, Conciliation and Arbitration Service ET/1805305/2022

Facts: During a preliminary hearing, the employment tribunal in this case was required to determine whether Mr. Corby, a conciliator at Acas, held philosophical beliefs that qualify for protection under the Equality Act 2010 (the “Act”). Mr Corby describes himself as white. Throughout his life, he has fostered close bonds with black individuals: he is married to a black woman and describes his children as black. Mr Corby defines his philosophical belief on race as a challenge to critical race theory in general; he believes that critical race theory’s approach to racism is flawed and has the potential to cause separatism, segregation and ethnocentrism. Describing himself as a “traditional anti-racist” who was opposed to “wokism“, Mr Corby stated that he believed that it was more appropriate for people to be judged by the content of their character rather than the colour of their skin, given that this is a commonality amongst people of all races.

Judgment: In applying the Grainger test, the tribunal found that Mr Corby’s race-related beliefs qualified for protection under s10 of the Act, namely that his beliefs are a protected philosophical belief. Despite initially terming them ‘views’, the tribunal found that Mr Corby’s beliefs were (i) genuinely held, (ii) not merely an opinion but a deeply held belief based on principle, (iii) clearly important given that questions of race and racial equality impact most, if not all, of the population, (iv) serious and important, impacting how he lived his life and (v) related to the best way of eliminating racism in society and were therefore worthy of respect.

Takeaway: Employers need to be aware that individuals’ beliefs, even those which challenge prevailing ideologies, can be protected under the Equality Act. This decision underpins the importance of fostering inclusive workplaces that accommodate a diverse range of beliefs and perspectives. While an employer may not agree with an employee’s beliefs, employers are required to respect and accommodate these beliefs though this should be assessed on a case-by-case basis as not all beliefs will qualify for protection!

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