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EHRC updates guidance on discriminatory adverts

The Equality and Human Rights Commission (EHRC) published updated guidance in July 2024, reminding employers that placing or publishing a discriminatory advert is unlawful under the Equality Act 2010.

This main aim of the updated guidance was to provide clarity on sex, and it remains relevant.

Examples include adverts using job titles or descriptions for job vacancies, such as waitress or postman, and those published in a particular language, or requiring proficiency in one or more languages.

However, the clarification that "sex" means "legal sex" – namely the sex recorded on a birth certificate or gender recognition certificate (GRC) – has sparked ongoing debate. Concerns have been raised that this definition allows a man who has legally changed his sex to be recruited for a "female role." Objectors argue that this compromises the privacy and safety of women in organisations such as rape crisis centres. Consequently, the Labour government has been called to review the current situation.

Code of Practice on Dismissal and Re-engagement

The Statutory Code of Practice on Dismissal and Re-engagement, known as ‘fire and rehire,’ has been in force since 18 July 2024.

While the Employment Rights Bill aims to strengthen the rules by making it “automatically unfair” unless the employer can demonstrate no alternative, the current provisions remain in place.

Dismissal and re-engagement is the practice of forcibly changing terms and conditions by dismissing the employee and re-engaging them on the new terms.

The code sets out the principles it expects employers to follow and encourages a greater level of consultation.

The government has now re-issued the code to include a sentence that hadn't been included in the draft version.

It states that; when issuing the new terms to an employee, the only terms that should be changed are those which the employee has been consulted about. No other changes should be made.

Employment tribunals can apply an uplift of up to 25% to an employee’s compensation if an employer unreasonably fails to comply with the Code where it applies.

While we await the outcome of the consultation on this Code, which closed on 2 December 2024, a significant change has already been introduced. A statutory instrument amending the Trade Union and Labour Relations (Consolidation) Act 1992 now requires employers to follow the Code during collective redundancy consultations.

From 20 January 2025, employers must adhere to the Code, in addition to existing consultation requirements, for redundancies involving 20 or more dismissals. The same 25% uplift will apply in cases of non-compliance.

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Recruitment and the use of AI

Everywhere you look, there’s AI! Adopting these tools in HR and recruitment processes offers to provide automatic and simpler processes, leading to greater efficiency, scalability, and less room for human error.

Nevertheless, usage of such technology also poses serious risks to security, existing biases, and discriminatory advertisements.

The Department for Science, Innovation & Technology has issued a new guidance document on ‘Responsible AI in Recruitment’ on 25 March 2024.

It provides guidance for employers to help mitigate the ethical risks associated with using AI as part of recruitment and hiring processes and comply with relevant legal requirements, including the government’s AI regulatory principles.

The guidance focuses on ‘assurance mechanisms’ for organisations to use when procuring AI systems from suppliers and when deploying AI in the organisation.

These mechanisms include completion of impact assessments, risk assessments and bias audits, creation of an AI governance framework within the organisation, and different types of testing of the AI systems.

The guidance also breaks down these assurance mechanisms by reference to the different stages of procuring and deploying AI, providing suggested questions for the organisation to ask itself at each stage.

Recent publications indicate that organisations taking a radical approach by completely banning AI have not eradicated its use. Instead, many employees find ways around this by using their own systems and transferring AI-generated work to their work computers, potentially introducing significant security risks.

New workplace standards for menopause and menstruation support are launched

Menopause remains a critical topic.

And while we await further details on the additional obligations for large employers (those with over 250 employees) outlined in the Employment Rights Bill, the guidance from the British Standards Institute (BSI), ‘BS 30416, Menstruation, Menstrual Health and Menopause in the Workplace,’ remains a valuable resource for employers.

This guidance highlights the challenges, symptoms, and experiences associated with menopause and menstrual health, offering practical insights into how these can impact women in the workplace.

BS 30416 is a free, practical toolkit for businesses of all sizes and sectors. Developed by experts in the field of menstruation, menopause, HR and occupational health and academics, it aims to help organisations identify the misconceptions around menstruation and menopause. It also identifies the impact of stigma surrounding these topics on workplace cultures and support.

The standard helps businesses to take action to make their workplace more inclusive. It contains examples of actions and adjustments that can improve employees’ wellbeing. Examples include:

Physical aspects of work
Policy guidance and practices
Supportive workplace cultures
Work design
Inclusivity
Evaluation and metrics