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

October was a landmark month for the government’s ‘Making Work Pay’ initiative, introducing the new Employment Rights Bill (which has already passed its second reading in Parliament), as well as announcing substantial increases to the National Living Wage (NLW), and raising employer National Insurance Contributions (NICs) in last week’s budget. Whilst these changes will no doubt require careful consideration by employers, we’re keen to avoid the hyperbole being spouted by many commentators. Contrary to what you may have heard elsewhere, the UK is very much going to remain an affordable and flexible labour market.

In other employment and immigration news this month, we’ll cover the campaign for the recognition of afro hair as a ‘protected characteristic’, report on a High Court ruling on baldness and sexual harassment, consider the commencement of the government’s consultation process on the Employment Rights Bill and provide a comprehensive guide for employers on hiring international interns.

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.

Employment Rights Bill: consultation papers published

Hair discrimination at work: a call for afro hair to be a protected characteristic?

High Court rules remarks on an employee’s baldness constituted sexual harassment

Government Authorised Exchange visa: a guide to hiring international interns

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.

With the Employment Rights Bill passing its second reading in Parliament, the government has launched several consultations on some of the Bill’s key provisions, including:

• Zero-hour contracts: Consulting on the proposed introduction of a right to guaranteed hours for zero hours workers, among other proposals. The consultation also seeks feedback on applying these measures to agency workers, with further discussions expected. See here.
• Collective redundancy and fire and rehire: Consulting on proposals to increase penalties for non-compliance with collective redundancy requirements, including raising compensation limits, and adding interim relief options for affected employees. The government also seeks to restrict ‘fire and rehire’ practices, permitting them only in cases of business survival necessity. See here.
• Trade union law reform: Consulting on proposals to streamline industrial action requirements. See here.
• Statutory Sick Pay (SSP): Consulting on proposals to remove the three-day waiting period and lower earnings limit to qualify for SSP, making SSP accessible from day one for all workers. See here.

These consultations end on 2 December 2024 for most topics, with the SSP consultation closing on 4 December 2024. Further consultations are expected as the Bill advances and we would expect the consultation for the changes to unfair dismissal laws to be afforded more than a month!

Employers are encouraged to engage with these consultations, to raise any comments or concerns. For our full article on the Employment Rights Bill proposals more generally, please click here.

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In September, supporters of the World Afro Day campaign sent an open letter to MPs calling for a change in the Equality Act 2010 to make Afro hair a protected characteristic. Their message was simple: “fix the law, not our hair.” They argued that without specific legal protection, discrimination against Afro hair continues to be normalised in schools, workplaces, and beyond.

Sadly, a Cambridge University study found that 88% of Black Britons surveyed have experienced racial discrimination, with many feeling pressured to adapt their appearance (such as changing hairstyles or speech patterns) to “fit in”. Labour MP Paulette Hamilton and Mel B (of Spice Girls fame) have voiced their support for this campaign and, if successful, the UK would become the first Western country to ban discrimination against Afro hair specifically.

Why is Afro hair the focus of this campaign? Well, although race discrimination is illegal under the Equality Act 2010, the law doesn’t explicitly mention hair texture. It could be argued that this gap can allow subjective judgments, such as deciding if a hairstyle is “professional”, to justify discrimination as a proportionate way to achieve a legitimate aim. While some may contend that it is preferable to retain the broad scope of the protected characteristic of race and that referring to specific traits (such as hair texture) as a separate protected characteristic could narrow the application of the Equality Act and inadvertently exclude other non-particularised characteristics, advocates believe that this change is essential for progress in this area.

While the Equality and Human Rights Commission (EHRC) has published guidelines to help schools prevent discriminatory policies against hair texture, there’s still work to be done and no official guidance for workplaces has been released by ACAS or the EHRC. Non-governmental guidance has been released by other organisations, such as the Halo Collective, which launched the UK’s first Black Hair code (the Halo Code) back in 2020. The Halo Code aims to encourage schools and workplaces to let members of the Black community wear natural and Afro hairstyles without fear of discrimination. Major companies like Unilever, Marks & Spencer, and Dove have signed up to the Code, though official government guidance for employers in this area should be issued to help create workspaces where all employees, regardless of nationality, colour or hair texture, feel empowered to be their authentic selves and are not restrained by the trappings of entrenched discrimination which, unfortunately, are still experienced by many individuals with Afro hair across the UK.

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Mr A Finn v The British Bung Manufacturing Company Ltd and Mr J King

Facts: Mr Finn worked as an electrician for The British Bung Manufacturing Company (‘BBMC’) from 1997 until 2021. In 2019, his manager, Mr King, insulted him and threatened him with physical violence. Mr Finn reported the incident but decided not to escalate it after the BBMC advised him Mr King had personal issues. A subsequent comment was made by Mr King in March 2021 and Mr Finn complained again. Mr Finn was dismissed without notice two months later for gross misconduct after an internal disciplinary hearing, where it was alleged that Mr Finn falsely claimed to have provided a witness statement to West Yorkshire Police regarding the incidents with Mr King.

Judgment: At first instance, Mr Finn brought claims in the employment tribunal (‘ET’) for harassment related to sex under the Equality Act 2010 (‘EqA 2010’), unfair dismissal, wrongful dismissal, detriment and victimisation. The ET ruled that Mr King’s comment about Mr Finn’s baldness was harassment as it was deemed unwanted, and Mr King admitted the intention was to threaten Mr Finn. This behaviour undermined Mr Finn’s dignity and created a hostile environment, and because it was related to his physical appearance, the harassment was linked to his sex (in other words, he would not have been referred to as bald had he not been a man).

The BBMC appealed. The Employment Appeal Tribunal upheld the ET’s finding, dismissing the appeal. Comments can be considered harassment related to sex regardless of intent and there is no authority according to which comments made must be inherent to one gender and not applicable to anyone of the opposite gender – e.g. in this case, comments relating to baldness are much more likely to be directed towards men rather than women, even if baldness also affects women. Additionally, they do not need to be sexual in nature to be linked to sex.

The BBMC further appealed to the High Court and this appeal has also now been dismissed for similar reasons.

Takeaway: This case serves as a reminder for employers to recognise that workplace “banter” (which can escalate into threats) can lead to discrimination and harassment complaints, even when the language used may not initially appear to reference a protected characteristic. Employers may face liability under the EqA 2010 if they fail to take steps to prevent harassment in the workplace and safeguard their staff. It is essential to establish robust policies and provide comprehensive training to clarify what is acceptable and unacceptable behaviour, especially in sectors where offensive language between colleagues is common. Cases such as this may also attract media attention and can inadvertently prove a challenge in recruitment and staff retention.

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Hiring international interns can bring fresh perspectives, diverse skill sets, and invaluable global insights to a business. The Government Authorised Exchange visa (GAE) offers a structured pathway for businesses in the UK to recruit talented interns from abroad. This article outlines the key steps and considerations for utilising this visa route.

Understanding the Government Authorised Exchange Visa

The GAE visa is part of the UK’s broader Temporary Worker route, designed to facilitate cultural exchange and enhance professional development. It allows foreign nationals to engage in various professional and educational activities for a limited period, promoting international cooperation without the long-term immigration implications associated with other visa routes.

Qualifying activities

Participants under this visa can engage in a wide range of activities, including:

• Work experience: Internships or placements organised by UK employers, enabling practical experience in specific fields.
• Training programmes: Structured training schemes that provide professional or technical skill enhancement.
• Research and fellowship programmes: Opportunities for academics and researchers to conduct research or participate in fellowships within the UK.

Qualifying sponsors

Employers seeking to sponsor an international intern’s visa will need to engage a third-party ‘qualifying sponsor’ to facilitate the process. The intern must obtain a valid Certificate of Sponsorship (CoS) from this sponsor, who will be responsible for ensuring the intern’s compliance with the visa conditions.

These qualifying sponsors are UK government-approved organisations, and employers will collaborate with them throughout the internship. We partner with several reputable third-party sponsors to facilitate GAE visas efficiently for our clients.

Eligibility criteria for employers

To successfully hire interns via the GAE visa, employers must meet several criteria. Most notably:

• Adherence to programme requirements: The GAE visa is intended for work experience, training, research, or skill exchange. The internship must align with these purposes, and employers should ensure that the role does not exceed the scope of an intern position or lead to permanent employment.
• Intern remuneration and benefits: The intern should be paid a salary equivalent to the UK minimum wage or above.
• Monitoring and reporting obligations: Employers will need to report any significant changes related to the intern’s employment, such as role modifications, non-attendance, or early termination. The third-party sponsor typically handles much of the reporting, but employers must remain in close communication to ensure obligations are met.

The GAE visa process provides a practical and efficient solution for employers seeking to recruit interns internationally. With minimal administrative burden, it offers a streamlined pathway for bringing talented international candidates into UK workplaces, supporting both employer goals and intern development in a globally connected business environment.

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