Blog: Changes to Right to Work checks from 6 April – what you need to know

On 6 April, the Government is changing the way in which employers will check the right to work of both employees and potential new hires.  Here we discuss what those changes mean for employers.

The move to digital identity certification only for foreign nationals

 At the moment, foreign nationals who hold biometric cards can choose to demonstrate their right to work in the UK in 2 ways; by showing an employer their ‘physical’ card, or by sharing their status via the Home Office’s online service.  Essentially employers and individuals have been able to choose between producing and checking a physical document (in each other’s presence) or sharing their immigration status online (without having to meet in person).

At the end of last year it was announced that from 6 April 2022 biometric card-holders will only be able to demonstrate their right to work in the UK using the Home Office online service. So from next month employers won’t be able to accept a physical card for the purposes of a right to work check, even if the card shows a later expiry date.

Online checks for British & Irish Passport Holders 

Currently a British or Irish national can only evidence their right to work in the UK by presenting their ‘physical’ documents to the employer – no online service exists for employees to demonstrate their right to work in the UK.   (You’ll be aware that concessions were made during the pandemic allowing scanned versions and video calls, but this ends 5 April 2022.)   However, from 6 April 2022 new online right to work checks will be available for British and Irish Nationals.

To take advantage of this new facility, the employer would need to have subscription with a certified Identity Service Provider (IDSP). The IDSP will  act on behalf of the employer to carry out the right to work checks.  There will be a fee payable for this service.

So far there are no IDSP’s registered.  As registrations develop a list will be available here allowing employers to source a provider to conduct remote right to work checks on their behalf.  The employer remains responsible for the right to work check so employers must ensure the checks are being conducted in accordance with the Home Office’s guidance.

Where British and Irish employees are concerned, employers retain the option to check employees passports themselves but this will need to be conducted ‘in person’ by the employee presenting their original documents to their employer.

Updates to Codes of Practice

With the above changes come updates to the Codes of Practice for both Preventing Illegal Working and Avoiding Discrimination While Preventing Illegal Working.  The latter has been extended to include for example, the need to ensure during right to work checks that employees/prospective employees are not treated more or less favourably if they hold an e-Visa.

Getting to grips with new government checks is never easy so I’d always recommend employers understand and get acquainted with online right to work checking process in advance of next month’s changes.

If you have questions about the right to work process or you have questions about employing non-UK workers we’d be happy to help: get in touch on 0117 325 0526 /

Anne-Marie Boyle

1 April 2022

Blog: The real costs of conflicts in the workplace and cost-effective solutions

My third blog in the series about mediation was always going to be about conflict in the workplace – and where mediation fits in as a solution to such conflicts. And then, as if by magic, ACAS releases a fascinating report called ‘Estimating the costs of workplace conflict’  and it practically wrote my blog for me.

The ACAS report really is a good read.  Fortunately, I have read so that you don’t have to!  The figures involved are startling, but not, I would say, wholly surprising.

The cost of conflict

The main headline is that the estimated total cost to UK organisations of conflict at work is £28.5 billion annually (which equates to more than £1000 per employee).  Nearly 10 million employees report that they have experienced conflict at work with close to 5 million reporting that conflict caused them stress, anxiety and/or depression. 900,000 took time off, 500,000 resigned and 300,000 were dismissed.  Those are some pretty big numbers.

The costs themselves can be broken down into four main categories:

  1. Costs of resignation, sickness absence and presenteeism (ACAS defined this as ‘working whilst ill’)
  2. Costs of informal resolution (including either internal or external mediation)
  3. Costs of formal procedures – grievances, disciplinaries, appeals etc.
  4. Costs of litigation (including management time, legal fees and compensation/settlement agreements)

There are also the ‘hidden’ costs which, to be fair, are much harder to put a figure on. These tend to be impacts to well-being, workplace culture, and the costs to wider society.

It is very clear from the report that whilst there are costs to using informal resolution, the costs to an organisation of conflict take a major hike upwards when an employee resigns or is dismissed.

The ACAS report echoes my comments in my first blog on mediation; that workplace relationships are much harder to save when formal procedures have been instigated (by which I mean grievances, disciplinary, sickness and poor performance processes).

Conflict in the workplace

Conflict theory is a fascinating topic.  For what it is worth, in my experience, where you get humans, you get conflict. It is just a fact of life (and the workplace) and not something that should be necessarily viewed negatively or an indication that there is something wrong with your organisation. Much good can come out of conflict, particularly where it is resolved quickly in the form of stronger workplace relationships, creative approaches to building solutions etc. Conflict isn’t confined to the typical manager/employee relationship, it arises  between peers and at both senior management and director levels.

Mediation is rarely used but highly successful when it is

It surprised me that only 5% of employers indicated that they had undertaken workplace mediation in order to resolve their conflict. This tends to suggest that most organisations move from informal resolution (i.e. talking to your manager or maybe HR) straight to grievances/disciplinaries without considering mediation. This is a missed opportunity as in  74% of cases using a mediated approach, this had in fact resolved their workplace dispute. That is a pretty good success rate by anyone’s reckoning. Obviously, there is a cost to the workplace for mediation (whether internal or external), but if it saves a workplace relationship, that has wider implications for a better workplace AND it saves money in the long-term.  That’s a no-brainer to me. It’s arguable that mediation costs would be a ‘good investment’ for businesses as they may reduce the longer-term negative impacts of workplace conflict.

Tips for reducing the costs of conflict in the workplace

Whilst you are not always going to have a conflict-free workplace, these are my top tips for reducing the costs to your organisation:

  1. Invest in management training that trains your managers to be people managers.  Too often people are promoted because they are good at their jobs – not because they are good with people. When I was a Saturday girl at Boots back in the 1980’s, their policy was that only pharmacists could be store managers. I have to tell you, they were great pharmacists, but they were not good managers.  ACAS talks about managers needing ‘core people sills’ in order to have quality interactions with their staff.
  2. Ensure that issues are dealt with as quickly as possible – either with informal resolution or through using poor performance procedures where there are performance issues. All too often managers fail to address performance issues and then ending up ‘managing someone out’ or they start a process far too late and get accused of bullying, harassment or discrimination.
  3. Ensure your organisation is ‘conflict competent’. By this I mean that managers are properly trained in conflict resolution and how to handle difficult conversations. Also consider using mediation as it both works and it avoids that jump straight to grievances and disciplinaries. (see my previous blog for details of the benefits of mediation)
  4. Ensure employees have a voice and representation. Lack of communication or lack of avenues to raise issues is a major source of conflict in any organisation.

Finally, it is the case that conflict has been suppressed during the pandemic as people had other things to worry about.   As people return to work after a lengthy furlough period or things just return to a more normal situation, conflicts are likely to re-emerge. Issues such as restructuring, economic pressure and uncertainly, the fact that some organisations have furloughed staff on 100% pay whilst other employees have worked their socks off will leave many people feeling unsettled and sometimes aggrieved.  I anticipate a high volume of conflicts in the coming 6-12 months.

Do you feel a workplace conflict bubbling that may benefit from mediation? I’d be happy to have an exploratory conversation.  Please email me: or call our office on 0117 325 0526.

Next time I am going to write about the types of workplace issues that work best with mediation – and those that don’t.

Blog: Why mediate? A view on the many benefits of mediating workplace disputes

Following on from my earlier mediation blog, this time I looks at different types of mediation, their many benefits and possible outcomes.

Mediation sits between negotiation at one end and litigation at the other end of the ‘dispute resolution spectrum’. My previous blog explained that mediation came to my attention initially as a means of assisting people to reach voluntary resolutions to their disputes. I was attracted to a process that might involve a ‘win-win’ scenario, particularly where the parties might have unequal bargaining positions. Negotiation is great but only really works well where there is parity of power. By a ‘win-win’ outcome, I mean one where both parties feel the outcome is a positive one for them.

 The Benefits of workplace mediation

 Mediation offers a unique resolution to conflict, one meant to achieve the elusive ‘win-win’ outcome. It does however offer much more than this:

  • It’s quick. When a conflict emerges (often it has rumbled on for a while), HR can offer a grievance procedure which can take weeks to investigate and arrange. And then there is the appeal. And then there is the resignation. It goes on. Mediation can be arranged relatively quickly as an alternative to the grievance procedure. Importantly successful, sustainable outcomes can often be achieved following merely one day of mediation.
  • It’s low cost. Compared to the cost of management time in handling disputes and the costs of being involved litigation, mediation is very much the low-cost alternative.
  • It works. A well-trained mediator brings high success rates for mediation.
  • Its power comes from the process. Grievance procedures often produce entrenched positions. Mediation is very different, giving parties the time and space to express their needs and allowing them to appreciate the other person’s needs. It means parties can work together to solve problems jointly rather than individually and don’t have a solution ‘imposed’ on them.
  • It is solution-driven.  At its core, mediation is fully geared to parties finding workable solutions to their problems. The solutions will rarely be about money (as opposed to litigation), but practical steps that lead to a sustainable working relationship.
  • It offers a range of outcomes.  Not every mediation will end with the perfect result but there are so many benefits gained by just going through the mediation process.  These include;  being heard, listening to others, understanding someone else’s position and having an appreciation of differences.  These alone can create stronger relationships following a mediation – even if there are no ‘agreed actions’.

Mediation Models

As with any discipline, there are a few different models of mediation.  These are:

FACILITATIVE MEDIATION – this works to help parties in a conflict make their own decisions, on the basis that such decisions will have the best fit and therefore be highly likely to succeed. The mediator offers a structured process which works really well with conflicts in the workplace, where a win-win solution is needed in order to support and strengthen relationships.

 EVALUATIVE MEDIATION – Here the mediator provides the parties with an evaluation of the strengths and weaknesses of their case with respect to their legal positions. If asked, they may also advise as to a likely outcome at court. They may also offer direction towards settlement options. This approach is suited to business and contract disputes where there is no ongoing relationship and a compromise is sought as an alternative to expensive litigation.

TRANSFORMATIVE MEDIATION – A transformative mediator aims to empower the parties involved to make their own decisions and take their own actions.  The parties are very much in charge of both the content and the process, the mediator working to support both as their conflict unfolds and their relationship changes and strengthens.

I take a facilitative /transformative approach to mediation for workplace disputes as I believe these offer a much more holistic approach to relationship re-building and conflict resolution. For cases where the relationship has already broken down, I suggest a more evaluative style of mediation.  Here I can use the full benefits of my 25 years as an employment lawyer to help parties understand their positions.

My next blog looks at the true costs of workplace conflict (spoiler – they are shockingly high), the role mediation can take in reducing these costs and my tips for curtailing workplace conflict.

 If you’d like to discuss mediation as a solution to a conflict in your workplace, please do contact me.  Please email me: or call our office on 0117 325 0526.

Anne-Marie Boyle
Partner

mediation

Blog: Is mediation at odds with being an employment lawyer?

Rather like Luke, I have been on something of a journey over the past year. Whereas Luke’s route has been into executive coaching, mine has been into the fascinating world of workplace mediation.

I have long-harboured an interest in mediation.  Does that sound rather contradictory coming from a lawyer who specialises in litigation?  I have always been a firm believer in looking out for alternatives to ‘fighting it out’ in an Employment Tribunal for my clients. This usually includes either some sort of settlement or persuading the other party to withdraw.  It can feel like a ‘win/lose’ or worse, a ‘lose/lose’ situation.

As a lawyer, my involvement often comes about when someone has already brought an Employment Tribunal claim and the employment relationship has well and truly broken down. Let’s face it, when it gets to the stage where the employee is presenting 20 page grievances or has been absent on sick leave for 6 months citing workplace stress as the primary factor, the relationship is often already beyond repair.

Reducing costs and damage

Does it have to be this way?  I quite like the old cobbler’s saying ‘a shoe worth wearing, is worth repairing’. I would use the same sentiment with employment relationships. I firmly believe many relationships can be salvaged if caught at the right time.  Mediation has a real role to play in reducing cost and damage of workplace relationship breakdowns and reducing the risks of escalation. This is at the heart of why I’ve spent the last year training to be a work-place and employment dispute mediator.

There are many past cases I’ve advised on where I believe, had mediation been introduced at the right time, then grievances, disciplinaries and even Employment Tribunal claims could have been avoided altogether. I will look at examples of these in future blogs.

I love my role as an employment lawyer but I firmly believe mediation is a compliment to my main role.   Yes, successful mediation means employers will get fewer employment tribunals claims, but the main reason I am doing it is because some of those broken workplace relationships are definitely worth fixing.  With increased levels of conflict at work plus rising commercial pressures on employers, finding positive and cost-effective ways to resolve disputes has never been more vital.

What sort of workplace issues is mediation suitable for?

Some areas where mediation can be very effective include:

  • allegations of bullying
  • resistance to change, particularly for role changes
  • perceptions of/allegations of harassment or discrimination
  • personality clashes or family business disagreements

If you want to know more in the meantime, do read this great CIPD report. Although written some time ago, it remains relevant and well-researched.

Please do feel free to get in touch with me ( 0117 325 0526)  if you think you might have a workplace issue which could benefit from a mediated approach. I would be very happy to chat it through with you.

Over the next few months lookout for more blogs from me about mediation:

–       Why mediate? An exploration of the types of mediation, benefits, and outcomes mediation can offer and why it might work for you

–       How different types of conflicts arise in the workplace and how they can be diffused

–       Mediable and non-mediable matters – what are the best outcomes you can achieve and which cases tend to work best for mediation.

–       The mediation process – what it looks like and how it works.

Anne-Marie Boyle
Partner

 

mediation

Blog: Vaccine Refusal – can an employer insist?

With a large number of people in the UK now vaccinated, employers are understandably keen that their staff should be part of that group.  With reports of individuals reluctant or refusing to have a vaccine and certain employers stating that they will make having a vaccine a condition of employment, we thought this was a hot topic worth looking at.

Can an employer require a whole workforce to be vaccinated against COVID-19?

Currently, vaccine priority is ‘grouped’ and as yet we’re not in a situation where everyone has had the ‘opportunity’ for a vaccination.  The priority groups are primarily set on the basis of age.  Introducing a mandatory vaccination policy now would likely be both unworkable and potentially indirect discrimination on the basis of age. Most younger people would not be able to comply with the policy simply because they do not yet have access to the vaccine. Further details of the priority groups can be found here.

Even once all age groups are vaccinated, it is unlikely that a blanket requirement that the entire workforce should be vaccinated will be considered lawful.  Particularly given that the Government has confirmed that the COVID-19 vaccine will not be mandatory.  Also, ACAS guidance (available here) advises that employers should support staff in having the Coronavirus vaccine – but they cannot force staff to be vaccinated.

A blanket requirement risks both unfair dismissal and discrimination claims so in the majority of cases, employers will benefit more from encouraging workers to take the vaccine and stressing its importance, rather than requiring them to take it.

However, there are some circumstances where it may be considered lawful, and we consider these below.

In what circumstances might employers make the vaccine mandatory?

UK employers have obligations under health and safety law to reduce health risks to employees and others to a level which is as low as reasonably practicable. Therefore, the vaccine should be considered (as part of COVID-19 risk assessments), as a potential measure to control the risks associated with contracting the virus at work.

Employers may decide, following such a risk assessment, that having vaccinated staff only in particular roles is necessary and reasonable in reducing the risk. For example, an instruction to a care worker to have a vaccine may be much more reasonable and justifiable than it would be for office staff who can work from home. In the care sector, for example, a policy of mandatory vaccination in certain sectors is more likely to be justified for purposes of indirect discrimination on objective grounds to protect the vulnerable.

The reason for the requirement to have a vaccine needs to be considered carefully on a case-by-case basis. A flexible and nuanced approach will reduce the risk of employment claims.

What are the potential legal risks if employers make vaccination mandatory?

The main legal risks for employers if they require the workforce to be vaccinated are unfair dismissal and discrimination claims.

Discrimination

Individuals with protected characteristics could potentially be discriminated against. If an employee refuses to be vaccinated because of a protected characteristic, and this results in detrimental or disciplinary action from their employer, they may also be able to claim constructive or actual unfair dismissal.

It is important to remember that discrimination claims have no financial cap, so a successful claim could potentially come with high costs for the employer.

Disability: Some individuals may be advised not to have the vaccine due to an existing medical condition or allergy, or they may be unable to take it due to a disability. Such individuals may be considered disabled and they may be treated less favourably than their colleagues should an employer require vaccination.  They could bring a direct discrimination claim if they suffer detriment as a result. Employers also have a duty to make reasonable adjustments for disabled employees.

 Pregnancy and maternityExpectant mothers have also been advised not to have the vaccine.  To avoid indirect discrimination, employers therefore need to ensure that any vaccination instructions or policies cover pregnant women.  It would also be prudent to take into consideration the fact that many women choose not to tell their employer of their pregnancy until three months’ gestation, and also the fact that women who are trying to get pregnant may also refuse a vaccine.

AgeAny differences in treatment between vaccinated and unvaccinated staff could be indirect age discriminatory – unless the treatment can be objectively justified. This is because the vaccine roll-out is being prioritised largely based on age, with older (and therefore higher risk) individuals being offered the vaccine first.  Therefore, older workers will be required to have the vaccination at an earlier date.

Religion or beliefAn anti-vaccination stance could amount to a protected philosophical belief and therefore attract protection.  A successful claim using this protected characteristic would need to establish that the belief was genuinely held, cogent, serious and worthy of respect in a democratic society.

Unfair Dismissal

If an employee refuses to follow an instruction to be vaccinated, an employer could start disciplinary proceedings and ultimately dismiss the worker.  However, dismissal is only likely to be fair if the employee has unreasonably refused to comply with the employer’s request to have the vaccine.  Employers should be careful that requiring the employee to be vaccinated is a necessary and reasonable precaution to take in reducing the health risk.  As always, the employer should give careful thought to whether there are any reasonable alternatives to dismissal (e.g., reallocation to a role where non-vaccination would not be problematic or working from home arrangements).

Employers should also consider that an employee faced with a “no jab, no job” scenario could resign in response to this requirement and claim constructive unfair dismissal.  Such claim may well succeed if the requirement was unreasonable.

With the vaccine take-up rate improving all the time and few side effects being reported, we are hopeful that issues relating to vaccine refusal will be few and far between.  In the meantime, employers should recommend and encourage rather than force employees to be vaccinated.

If you are unsure of your rights as an employer or employee and require further details on the above areas, please contact the Menzies team so we can discuss these areas further ( / 0117 325 0526).

Anne-Marie Boyle
Partner

covid vaccination

Blog: Miscarriage – a workplace issue

This is not an easy topic to discuss, but an important one nonetheless. Many of you will have also seen recent press coverage following Chrissy Teigen and husband John Legend’s miscarriage.

It is a fact that 1 in 4 women experience miscarriage (in medical terms, the loss of a baby at any time before 24 weeks of pregnancy). Unsurprisingly, there are no statistics to show how many women keep their miscarriages a secret (save from their partners or very close family) but it is clear many women never reveal they have had a miscarriage (or miscarriages).

With the advent of social media, there are more celebrities willing to share their stories (Jules Oliver, wife of Jamie has recently revealed that she has suffered 5 miscarriages and Chrissy Teigen and husband John Legend shared their miscarriage story earlier this month).  Hopefully such profile discussions will have the effect of ensuring women feel safer sharing this very personal news.

Dealing with miscarriage in the workplace

Not surprisingly the last place a miscarriage is discussed is in the workplace. Understandably women don’t always want to share such personal information with work colleagues, but it is possibly more nuanced than that. For many women, it will be the case that if the miscarriage happens within the first 12 weeks of pregnancy, they won’t have told work or work colleagues they were pregnant. It’s understandable that in these circumstances a woman won’t wish to tell colleagues she was pregnant but isn’t anymore.

More importantly, some women won’t want to inform work that they’ve suffered a miscarriage.  They simply don’t want work (or more specifically their managers) to know that they are trying to have a baby in the first place.  Despite the various statutory protections given to women to ensure that they are not discriminated against because they ‘might’ have children, it is the case that conscious decisions are made every day in the workplace that disadvantage women of ‘child-bearing age’.

From an HR perspective, it is a difficult one to manage. You will without doubt have women in your workplace (and, importantly too, partners of women) who have suffered a miscarriage.  Even if you’re unaware, there will still be an effect in the workplace; many women who have miscarriages will not simply ‘bounce back’.  They may start taking unexplained absences from work, or perhaps their performance is not as good as it usually is.  As an employer you may well say ‘how can I help if I don’t know about it?’.

Supporting an employee affected by miscarriage and the employment rights to consider

Firstly consider your organisation’s culture. If employees don’t feel safe to tell you about a miscarriage, why is that? What role models are there in your organisation of women with children? Is getting pregnant considered a ‘career-ending’ event?

Second, remember that women have various protections in the workplace relating to pregnancy. The Equality Act 2010 protects women if they are treated unfavourably because of the pregnancy, or because of illness suffered as a result of it. Tribunals will give broad interpretation to what constitutes ‘a reason connected with pregnancy’ and will include absence caused by pregnancy-related illness. Where a woman needs to take sickness absence following a miscarriage, this should properly be recorded as ‘pregnancy-related absence’ and therefore should NOT be used when considering absence for such things as access to sick pay, redundancy selection, promotion, bonuses etc.

Many women report that they feel pressured to return to work sooner than they feel able to because of fears of how their absence will be treated by their employer.

Managers need to be aware that knowledge of someone’s miscarriage should not be used detrimentally against them when making decisions about their employment. A manager may think they are being kind to a female employee by not giving them a promotion ‘because they need time to recover from a miscarriage’, but this would amount to direct discrimination and any motives, whilst kindly meant, will not justify the treatment.

Separately (and in my mind a bit confusingly), women have a right not to dismissed where the principal reason for the dismissal is their pregnancy. The ‘reason’ will be given a wide interpretation here, and therefore if someone is dismissed because they have taken a lot of time off following miscarriages, this could amount to an automatic unfair dismissal (which is a ‘day 1 right’ and not one requiring 2 years’ service).

Can an employee take maternity leave if they suffer a miscarriage?

Whilst it is doubtful that a woman would want to take a full period of maternity leave in these circumstances, she might wish to avail herself of some of the protections that maternity leave can bring (time off work which is not counted as sickness absence, maternity pay with the right to come back to her job). Certainly, if the miscarriage happens nearer the 24 week period and the employee has given her statutory maternity notification to her employer of her ‘expected week of confinement’ and her intention to take maternity, there is no reason why she cannot take a shorter period of maternity leave if she choses to do so. I am not aware of this actually happening, but it appears to be a possibility. Maternity leave and pay is specifically available to women who suffer a stillbirth because it amounts to childbirth which is ‘the birth of a living child, or the birth of a child whether living or dead after 24 weeks of pregnancy’.

Being miscarriage-aware

As with other ‘life’ issues for employees (for example, menopause), how an employer responds to an employee’s personal situation can turn an average employer into a great one. If you want to be in the ‘great’ employer category, you can start by making your organisation more miscarriage-aware.

The Miscarriage Association have recently produced a fantastic information pack with loads of helpful detail and even a miscarriage policy: https://www.miscarriageassociation.org.uk/information/miscarriage-and-the-workplace/  It is well worth a look and also reminds employers that there are many people affected by miscarriage – including the often over-looked partner.  I was going to try to not mention COVID here – but, in these strange times, becoming a kinder workplace seems like a no-brainer.

If you would like to discuss any aspect of this blog, please contact us on 0117 325 0526 or email Anne-Marie: 

Anne-Marie Boyle
Partner

 

Blog: Life after furlough – employment law considerations for cost-effective alternatives to redundancy

The length of time the economy has had to shut down as a result of Covid-19 means that businesses are facing tough cost-cutting decisions.   As redundancies are neither cheap nor easy, the alternatives to achieve savings yet retain skilled staff are very much worth examining.  This article looks at some of the options, together with the employment law issues to consider.  This piece compliments our webinar on this topic on Tuesday 23 June (more here if you’re interested: Menzies Law Webinar)

Changing employees’ terms and conditions

Adjusting employees’ contractual entitlements, such as pay cuts or reducing benefits, can make good savings. It can be surprising how often staff will be willing to agree to pay cuts in order to give a business a fighting chance of remaining solvent.

Pay, benefits and hours of work will be contractual terms of employment for your staff and changing them can be legally challenging.  Sometimes making minor changes may be permitted under the contract (if the wording is there to allow it) but will probably not be sufficient for significant changes that will have a notable impact on income.

For significant changes you will either need to obtain your employees’ individual consent or, if not forthcoming, taking the ‘nuclear option’ of terminating existing contracts and offering new ones containing the changes needed (so called ‘fire and re-hire’).

Either route requires careful handling. If you decide to take the fire and re-hire option, you’ll need to be mindful of the legal pitfalls such as triggering your legal duty to consult and potential unfair dismissal claims.   It will require specialist advice from an employment lawyer, and I’d be happy to help.

If you recognise a trade union for any sections of your workforce you have the additional option of using collective bargaining to reach an agreed change to pay and hours.  But bear in mind that this will only cover those roles that are agreed to be within the collective agreement.  Usually management roles will be excluded and so you will have to reach individual agreement with your managers.

Pension contributions

A reduction to employer pension contributions can look attractive but may still require you to consult with employee representatives.  Special consultation requirements apply to pension schemes.  Also bear in mind the minimum employer pension contribution thresholds set by current pension law.

Lay-off and short-time working

The Coronavirus Job Retention Scheme (CJRS) has, for many, avoided the need for lay-offs or reducing working weeks.  However, when the scheme ends (30th June at the time of writing), it may be that employers will reconsider these more traditional options.

Check your employment contracts to see if you have the power to impose any lay-offs or short-time working.  Very few businesses currently have such terms although they were common until the 1980s.  Without this sort of contractual ‘permission’, you are back to the ‘changing terms and conditions’ section above.  Without your employees’ express and informed consent, you risk claims for unlawful deduction from wages, breach of contract and constructive dismissal if you were to impose a lay-off (temporary suspension without pay due to having no work for the employee to carry out) or short-time working (reducing hours and work and therefore pay).

However, looking to the future, it seem worthwhile thinking about adding in a power to lay-off and short-time working for new starters.  It would be good to be better prepared if we ever face a similar sort of crisis.

Reducing use of contract workers

Dispensing with the services of casual workers, agency workers and/or self-employed consultants may well reduce your costs, but do make sure none of them qualify as ‘employees’.  If they do, they will have statutory redundancy pay and you might fall foul of unfair dismissal law.  This risk can sometimes be hidden and it is well worth a few minutes with a friendly employment lawyer to ensure you are in the clear.

Also check any fixed-term contracts to ensure there is a ‘break’ clause allowing you to make an early termination.  If not, you could be liable to make payments to the worker until the end of the fixed term.

Non-contractual benefits

Non-contractual (‘discretionary’) benefits are easier to reduce/remove in hard times. Employees would probably rather lose these benefits or have them reduced , rather than face a reduction in salary or hours or losing their jobs, so this definitely an option to consider early on.

Other options

Redeployment, secondment and sabbaticals may also be on your list.   Redeployments or secondments need your employee’s consent (unless there is an express right to do so in the contract of employment.)  A sabbatical or career-break is simply time away from work and some employees can afford some time off.  Continuity of employment is preserved during a sabbatical and usually annual leave entitlement will continue accrue, which is a cost to bear in mind.

Flexible working

Part-time working or job-sharing can help reduce costs.  Seek consent here and set out the new ‘regime’ in writing.   Remote, home or flexible working all reduce overheads but be aware of our advice above on changing terms and conditions.  Also consider important issues such data security and health & safety.

Communication, communication, communication!

With any changes, engaging with your workforce will be key to getting buy-in. In our experience, open communication goes a long way to getting consent to changes, and obtaining their consent reduces your legal risk to almost nil.

And lastly, if you need encouragement that a non-redundancy solution is possible, this is a great story of one manufacturing technology company’s successful approach.

 

Anne-Marie Boyle

Menzies Law

Anne-Marie Boyle is a Partner at Menzies Law, a boutique employment law firm.  We’ve been advising businesses through difficult times for over two decades and have plentiful experience guiding businesses through making these types of changes.  Please get in touch if we can help:  0117 325 0526 ⃒ www.menzieslaw.co.uk

 

anne-marie

Blog: One of the biggest employment law changes in 2020 – are you ready?

Perhaps the biggest employment law change of 2020 (in terms of you needing to change how you do things) arrives on 6 April.  It has the potential to cause headaches for HR practitioners, as it involves changes to the right to receive a written statement of particulars of employment.  Changes include not just when an employee has to receive these but most importantly, what this set of terms should include.

Now you may already feel your eyes glazing over and a yawn coming… but stay with me here!

The requirement for a ‘written statement of terms and conditions’ (under section 1 of the Employment Rights Act) is essentially the statutory bare minimum for what must be in an employment contract.  You’re probably very used to what needs to go into one of these statements, but things are changing.

What’s changing?

My references below to ‘statement’ will obviously include any employment contract you use.

In summary, the changes are:

  1. The statement must be given on the first day of employment instead of within two months of start date as it is currently (with some exceptions like details of pensions, collective agreements and training rights, which can be given later).
  2. The exemption from this duty for employees in short-term employment for a period of less than one month no longer applies.  All workers have the right to receive their statement no later than the first day of their employment.
  3. The right to receive the statement, previously enjoyed only by employees (including apprentices), is now extended to ‘workers’ who are engaged at any time after 6 April 2020.  Existing ‘workers’ (who are not also employees) do not have a right to receive a written statement, unless they are ‘re-engaged’ by you after that date.
  4. There are a number of new pieces of information and terms that must now be given in the statement, namely:
    • Which days of the week must be worked
    • Whether or not such hours or days may be variable and, if so, how they vary or how that variation is to be determined
    • Any terms and conditions relating to any paid leave other than holiday and sick leave.
    • Any other benefits not covered elsewhere in the statement (which includes both contractual and non-contractual benefits)
    • Details of any probationary period (this would in all likelihood include so-called ‘trial shifts’), including conditions applicable to it and its duration
    • Details of any training entitlement, and any part of that training entitlement which is compulsory
    • Details of any other compulsory training which the employer will not pay for

So what?

There are, technically, only a couple of areas where you can refer an employee to another document containing the relevant terms (e.g. policy) rather than putting the information into the statement itself (and we set these out below). Strictly speaking, the detail must be set out in the statement itself.

I imagine many of you will take the view that you can live with a ‘technical breach’ where you refer employees to a separate document (e.g. a comprehensive Staff Handbook) as long as the statement covers all the main points.  Below are some of our main pointers to make the process easier for employers.

What about the Workers?

It is only ‘workers’ (non-employees, such as casual workers) who join your organisation after 1 April 2020 who will be entitled to receive a statement for the first time – not those you’ve already hired. Nevertheless, this may involve an overhaul of the documentation you give to workers.

While we are at it, do they need to be this middle tier of ‘worker’? The law in increasingly moving back to have two main types of employment: employees and self-employed. Whilst there are some good reasons for having ‘workers’, it often leads to confusion and mistakes and maybe now is the time to consider your legal relationships with those who work for you.

Perhaps you already comply?

The vast majority of employers obviously give their employees an employment contract (which contains all the necessary ingredients of the basic minimum ‘statement’).  Your employment contracts may very well already comply with the new legislation – in which case, happy days!

If not, you may wish to issue an updating document to employees that ticks all the new boxes. Remember, employees can request an updated statement/contract (you probably know who those ones will be!) so you might want to be prepared and have one ready to go.

On a practical level, if you are considering implementing a new type of paid leave (‘grandparents leave’, anyone?), it will make sense to introduce this either on or before 1 April 2020 – if not, you will have to issue another updated statement/contract later in the year.

And don’t forget that if you have any directors on directors’ service agreements, these should be checked too for whether their contents comply with the new rules.  Since these agreements tend to be detailed and lengthy, the chances are they probably do, but it’s worth checking anyway.

Working hours, days and variations

The new requirements in relation to hours of work are also likely to require an audit of current practices, so that the employer is able to provide the relevant details.   Actual working practices may have changed since the employee was first taken on.  Any existing documentation may not properly reflect the contractual position in relation on issues such as how variations to working hours are determined or the employee’s current working hours or pattern.

Benefits

You will also need to audit the benefits that are provided to your workforce, so that details of these can now be included in updated statements/contracts. Both contractual and non-contractual benefits are covered by this requirement. You should therefore be careful to specify in the statement/contract which benefits are contractual and which are non-contractual or discretionary.

An added practical complication is that you are not permitted to simply refer your staff to another document for details of their other benefits.  These must be included in the statement/contract itself. Employers who provide a wide variety of benefits and/or whose benefits vary significantly according to the employee’s status or role may find this new requirement particularly onerous.

I suggest you take a pragmatic approach, where you accept the risk of ‘technical’ non-compliance with this requirement.  This route would mean including only a summary of details in the statement/contract itself and, even though this is not permitted by the legislation, referring the employee to further details contained in another document, such as a benefits policy.

Training entitlement

You will need to review your workforce’s training requirements and practices to ensure they have the full picture across all parts of the business.

Whilst employees can be referred to another reasonably accessible document for details of any training entitlement provided by the employer, details of:

  1. any part of the training entitlement that is compulsory, and
  2. any other compulsory training (i.e. training which is not provided by the employer) which the employer will not pay for.

These must be set out in the statement or contract.

Referring employees to another document

It has always been permissible, for certain employment terms, for the employer to refer the employee to another ‘readily accessible document’.  This has not changed.  In fact, the list has been expanded. By way of reminder, these are:

  1. any terms and conditions relating to incapacity for work due to sickness or injury, including sick pay
  2. any terms and conditions relating to any other paid leave
  3. any terms and conditions relating to pensions and pension schemes
  4. any training entitlement provided by the employer (but not details of any compulsory element of that training, or details of compulsory training that the employer will not pay for as explained above)
  5. the terms of the disciplinary rules and procedures (but details of the person to whom the worker can apply if dissatisfied with any disciplinary decision relating to them, or any decision to dismiss them, and the person to with whom the worker can raise a grievance must be set out in the written statement itself)
  6. the terms of the disciplinary appeals process and grievance procedure

A good opportunity for a thorough update?

Rather like a good spring-clean, the new legislation does give you a chance to give your contracts a proper dust-off.   Consider if they are still really fit for purpose.  Perhaps more importantly, do they properly reflect your organisation as it exists now? Are they written in the ‘style’ of your organisation?

I recently reviewed employment contracts for a dynamic, growing tech business employing lots of 20 somethings.  I discovered that their terms of employment were not only non-compliant but did not reflect the true culture of the organisation either.  They were overly wordy, full of ‘legalese’ and not very employee-friendly.  They were certainly not in-line with their employer brand.  A thorough re-write meant that new hires now get a contract which mirrors the business they’ve signed up to (rather than one unrecognisable from the one who they interviewed with!).

These documents do ‘set the scene’ for your relationship with your employees from day 1 – so ignore them at your peril!  Make sure they properly serve both you and your employees.

We are adept at creating, updating and re-writing employee contracts of all types – from those for casual employees up to directors’ service agreements.  Please get in touch if we can help you ( / 0117 325 0526).

Anne-Marie Boyle
Partner

anne-marie

Blog: Secret Santa – the perils of the annual workplace present giving

Now, I am not trying to be a Scrooge about this – but we need to talk about Secret Santa.  It has now become almost mythically traditional for workplaces to indulge in this ‘secret’ present giving where everyone is forced to give a secret present to another member of staff.

We’ve all been there: trying to find that perfect present (for a fiver) for a fellow colleague – deep in the knowledge that unless you drunkenly tell them it was you, you will NEVER get any credit for it. That is the type of Secret Santa that is just about acceptable.

What is not acceptable is when it becomes an excuse to bully, harass or generally embarrass your colleagues (because of course, you all have to open the presents in front of each other don’t you?). You hear stories of some seriously inappropriate gifts; bald employees being given wigs, women being given sexy underwear and gay employees being given lubricants – all in the name of ‘Christmas fun’. It is absolutely the case that an inappropriate gift given in this way could give rise to a claim of discrimination or harassment against the employer – or at least be used as further evidence of an already toxic work environment.

If your workplace does get involved in Secret Santa, perhaps it would be a good idea to have a scan at present giving time. Are any presents offensive? What do they say about your organisation? I am not saying you need to consign it to the Christmas dustbin, but if as in some organisations, this present giving has got wildly out of hand, it might be a good idea to give it the red card.  Save yourself the grief of post-Christmas Employment Tribunal claims.

And finally a word of caution from my own experience. My husband was happily Secret Santa-ing a couple of years ago and handed over a nice (but not very expensive) scented candle as a gift for a female colleague. For some reason he didn’t see her open it at work.  It was only on Christmas day when his brother opened a scented candle that he realised he’d given his colleague his brother’s rather expensive Bluetooth speaker instead!  So after Christmas he had to pop out to buy yet another Bluetooth speaker…

Happy Christmas everyone!

Anne-Marie Boyle
Partner
Email Anne-Marie or call 0117 325 0924

anne-marie

Blog: Pregnancy & maternity in the workplace – part 4

In the last of our series looking at Pregnancy and Maternity in business, Anne-Marie Boyle looks at the tricky issues thrown up where a dismissal situation (including redundancy) arises during or after a period of maternity leave.

We know that in life (despite our best efforts), nothing stays the same and this is very much the case in the workplace also. It is possibly a woman’s biggest work fear that whilst she is on maternity leave, her employer will decide they no longer need her – or worse, prefer her ‘stand-in’.  In my experience, and those of my colleagues, neither of these scenarios are a rare occurrence.

Special protections for women who are pregnant or taking maternity leave

There are specific protections for women around this time.  These protections include a claim for automatic unfair dismissal (so, no need for 2 years’ qualifying service) if:

  • A women’s dismissal is connected with her pregnancy or maternity leave; or
  • A woman is made redundant and s10 of the Maternity and Parental Leave Regulations 1999 (MAPLE) apply and have not been followed (more on this one later!); or
  • A woman is made redundant from a pool and her selection is connected with her taking maternity leave or pregnancy.

Additionally there are the significant protections in the Equality Act 2010.    These prevent discrimination by reason of pregnancy and maternity and sex discrimination when someone is dismissed.

Again, these claims do not require any qualifying service and can attract unlimited compensation and injury to feelings award.  (Our earlier blogs would be worth referring back to for more detail Menzies Law Blogs)

What about where an employee’s absence on maternity leave reveals to her employer that her role is not needed?

This happens a lot in practice.  Work is distributed whilst the employee is away amongst others in the team, or, is simply not done.

This was the case in SG Petch Ltd v English-Stewart.   Ms English-Stewart was employed as a marketing manager with a team of 5.  As she attempted to return from maternity leave, her manager informed her that ‘they had coped’ without her and therefore she was redundant.

She brought a claim for unfair dismissal arguing that her dismissal was ‘connected’ with her pregnancy.  At the EAT, they found that the reason for the Claimants dismissal was not that she had taken maternity leave, but because she was redundant because her work had been distributed elsewhere.

However, the EAT sent the case back for reconsideration on the ‘selection’ point above.  Should she have been in a pool for selection? And if so, why was she selected?  Clearly, if the only reason she was selected for redundancy was because she had just been on maternity leave, then she would be successful (which in this case it certainly looked like the case!).

The clear message is that whilst it is not in itself unlawful for an employer to consider a redundancy situation that arises by virtue of a maternity leave, this type of scenario must be handled correctly.

Employers should be asking themselves ‘are other employees doing similar work?’  If so, should there be a wider selection process.   Fair selection criteria and its application will also be crucial here. If the employee who is coming back from maternity leave is the one who is selected, you need to ensure you have transparent objective reasons for picking her.

The ‘section 10’ conundrum

This is another tricky and often misunderstood area of law. Section 10 of MAPLE provides an obligation on an employer to make an employee an offer of suitable alternative employment once she is redundant or at risk of redundancy whilst she is on maternity leave.

When does this duty kick in? As soon as the decision is made to delete the woman’s role.

It does not arise following a competitive interview process to decide which employees to slot into a new role because their positions have been made redundant.  It does, in effect, put women on maternity leave at ‘the front of the queue’ for alternative positions. It also only applies if the woman is still on maternity leave.  Once she has returned to work (or also whilst pregnant) there is no specific protection under s10 MAPLE.   As such, we are aware of some employers delaying any decision until after an employee has returned to work.

What must be offered? This is interesting – the employer has to make ‘an’ offer of a suitable alternative vacancy: it does not necessarily have to offer every role or even the role that the woman most wants (if there is good reason for not doing so).

What about if you have more than one woman made redundant, still on maternity leave yet there is only one suitable alternative vacancy?  My best guess here is that you can make a conditional ‘offer’ (which is all the law requires) to both women and if they both accept it, then they can be asked to attend a competitive interview or other selection process.

Is there a legal obligation for an employer to provide cover for a woman’s role whilst she is on maternity leave?

Again, an interesting one. Many woman would argue that if their role is not covered whilst they are away, then it is obvious that their role will ‘shrink’ and make a redundancy inevitable when they try to return to work.   There is a logic to this and it is definitely something I have witnessed in practice.

Whilst there is no statutory obligation on an employer to ‘cover’ a role whilst their employee is on maternity leave (and many will take the opportunity to make some costs savings at this time), I think it is definitely arguable that, for certain types of roles, a failure to recruit cover could amount to pregnancy/maternity discrimination under the Equality Act.

Of course, it is open to an employer to argue that it would do the same with any type of lengthy employee absence – but it is certainly one to think about.

We have advised employers on many dismissal scenarios arising around the same time as either a pregnancy or a maternity leave. Our advice is invariably to be very sure why the dismissal (usually redundancy, but not always) is necessary and justified. If there are transparent and objective reasons, there is no reason for this to be unlawful or discriminatory. However, the procedure adopted will be crucial both to ensuring the decision-making is objective and not open to challenge.

This is the last in our Pregnancy and Maternity Blog series.  Tamsin and I really hope you have found them useful.  As always we’d welcome your thoughts and feedback and of course if you have a pregnancy or maternity issue you’d like advice on, please get in touch with us.  / / 0117 325 0526

anne-marie