Posts Tagged ‘employment law’

Emma Cocker comments on managing discrimination and harassment in the workplace

Posted on: January 9th, 2025 by Natasha Cox

Senior Associate Emma Cocker comments on the legal action facing McDonald’s over allegations of widespread harassment and discrimination, and discusses employers’ obligations to protect their staff and workplace.

Emma’s comments were published in Business Matters Magazine, 7 January 2025, and can be found here.

“All employers have duties to protect their staff against discrimination and harassment in the workplace – obligations which apply regardless of whether people are engaged on a full-time, part-time or zero hours basis.

“However, with most McDonald’s workers being engaged on a zero hours basis, individuals will be acutely aware of their employment insecurity. They are also likely fearful of being subjected to detrimental treatment for raising complaints. The abuse which arises from the imbalance of power inherent in these types of workplace relationships can lead to significant liability for businesses, of which employers must be conscious.

“It would appear that McDonald’s still has a long way to go in providing a safe working environment free from discrimination and harassment. How they handle these claims will likely be carefully scrutinised. The longer businesses allow this kind of behaviour to persist, the longer the list of grievances and legal claims they will face.”

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Emma Cocker comments on Employment Tribunals and the Employment Bill in City A.M.

Posted on: August 29th, 2024 by Hugh Dineen-Lees

With the upcoming Employment Bill on the horizon, Senior Associate in the Employment team Emma Cocker comments on whether current Employment Tribunals will be fit for purpose, in City A.M.

Emma’s comments were published in City A.M., 28 August 2024, and can be found here.

“The government’s intention to significantly expand employment rights will have a monumental effect on employment tribunals. We already know that tribunal claims are up by around 7% compared with 2022/23 with over 650,000 open cases. Giving employees protection against unfair dismissal from day one of their employment along with the extension of time limits for bringing claims from three to six months is likely to significantly effect the Tribunal’s ability to deal with cases in a timely manner. 

“Worryingly, parties are already experiencing significant delays, with some cases taking over 18 months to reach a final hearing. Complex discrimination claims face the longest waits, with Tribunals struggling to find capacity for hearings that are often listed for a minimum of seven days.  

“The former Conservative government had consulted on the reintroduction of Tribunal fees; however these were nominal and would be unlikely to make any difference in combating delays. The current government’s main solution appears to be the digitisation of claims, but it is unclear what further improvements are proposed beyond the existing online platform for submitting claims and liaising with the Tribunal. 

“Employment Tribunals could become overwhelmed with increased claims on top of already long delays, meaning both employers and employees may face longer waits to resolve workplace disputes.”

If you would like any advice on the upcoming Employment Bill or Employment Tribunals, please contact a member of our employment team.

Joanne Leach comments on the ‘right to disconnect’ in City A.M.

Posted on: August 21st, 2024 by Hugh Dineen-Lees

Joanne Leach, Senior Associate in the Employment team, comments on the government’s plan to give workers the ‘right to disconnect’ outside of their work day, in City A.M.

Joanne’s comments were published in City A.M., 21 August 2024, and can be found here.

“The implementation of the “right to disconnect” will require employers to carefully weigh up the competing interests of various employees. One individual’s “right to switch off” might curtail the right of another to work flexibly. This would impact others who require flexibility.

“To manage this risk, employers should suggest practical measures such as requiring any staff working outside core office hours to delay the sending of internal emails until the next working day. This is likely to be more effective in managing any conflicts as opposed to mandating all employees to switch off when it does not suit them.

“It remains to be seen whether employers can implement such practices and benefit from the increased productivity that the policy aims to deliver without opening themselves up to the chance of claims brought by staff who feel that their right to work flexibly has been curtailed by a government order to disconnect.”

If you would like some advice on how to support your staff in relation to flexible working and wellbeing, please contact a member of our Employment team.

Joanne Leach comments on anti-bullying policies in People Management

Posted on: August 6th, 2024 by Natasha Cox

Joanne Leach, Senior Associate in the Employment team, comments on a recent study which found that more than half of UK employees do not think that shouting at work counts as bullying and discusses how employers can address workplace bullying.

Joanne’s comments were published in People Management, 5 August 2024, and can be found here.

“Adopting an anti-bullying and anti-harassment policy is merely the first step an employer must take towards addressing workplace bullying. To ensure it is effective, employers must also train the whole workforce on what is required of them regarding their interaction with colleagues.

“What constitutes ‘acceptable conduct’ has shifted significantly in recent years, and behaviour that used to be tolerated can now lead to significant liabilities for an individual and their employer.

“When an incident of bullying occurs, employers are more likely to minimise liability with clear grievance and whistleblowing policies in place which employees can access and managers can understand.

“Policies that address workplace culture, such as a clear diversity, equity and inclusion policy and training on unconscious bias and allyship, also empower employees to support their colleagues and call out wrongdoing if they witness unacceptable conduct.”

If you would like any assistance in developing whistleblowing, workplace culture or diversity, equality and inclusion policies, please contact a member of our Employment team.

Employment law insight: what were the BBC’s obligations during the Huw Edwards scandal?

Posted on: August 5th, 2024 by Natasha Cox

The BBC have come under questioning regarding its handling of the Huw Edwards case in the wake of him pleading guilty to child sex offences on 31 July 2024. There is a particular focus on the period of Edwards’ suspension from July 2023, when he continued to receive his full pay of £475,000 per annum, and also received a pay rise of £40,000 during this time. We now know that the BBC were made aware of his arrest during November 2023. The underlying question here is whether his employer should have dismissed him at this point.

Putting aside the awful nature of his crimes, there is no getting away from the fact that, from an employment law perspective, the BBC had obligations towards Edwards until his resignation in April 2024.

Obligations during suspension

Once an employer is made aware of allegations of criminal activity and criminal charges relating to its employee, they are obligated to investigate to try and obtain as much information as possible.

Right to suspend

In most cases of gross misconduct (and more serious cases of simple misconduct), employers should consider suspending an employee pending the results of their investigation. Whilst suspension is by no means the default position, the ACAS code of Practice suggests suspension is acceptable if the employer reasonably believes it would be protecting any of the following:

  • the investigation: for example, if you’re concerned about someone damaging evidence or influencing witnesses;
  • the business: for example if there’s a genuine risk to your customers, property or business interests;
  • other staff; or
  • the person under investigation.

During the suspension, the employer will need to carefully consider decisions surrounding pay. Unless there is a clear contractual right to do so, the employer is not entitled to suspend a salaried employee without pay or contractual benefits.

In this case, if the BBC withheld or reduced Edward’s pay during his suspension, there would have been a risk of legal action by Edwards, although it is questionable whether Edwards would have wished to attract further media attention by instigating legal proceedings. In fact, there would still have been a risk of legal action, such as a claim of constructive unfair dismissal even if the contract allowed reduced or no pay during suspension.  

Would it have been fair to dismiss Edwards from November 2023, had he not resigned in April 2024?

Following the allegations, careful consideration ought to have been given to the pending disciplinary process and what action to take.

Prior to any dismissal, employers should consider the following:  

  • nature of the conduct: in cases of misconduct, consider whether actions or allegations relating to actions outside of work are sufficiently serious to warrant disciplinary action at work. Sometimes even cases that appear to be obvious misconduct affecting employment can lead to successful claims of unfair dismissal, such as in Walters v Asda Stores.
  • the evidence: when considering dismissal, the employer should endeavour to have as much information as possible prior to making any decision.
  • employee’s health: prior to any dismissal, the employer ought to consider whether there are any allegations or information to suggest ill-health on the part of the employee. If so, the employer ought to investigate the employee’s health. If the employee refuses to co-operate, it may be fair for the employer to dismiss.
  • the procedure: an employer must still follow a fair and reasonable procedure if an employee is accused of misconduct, including gross misconduct. What is fair and reasonable will vary from case to case, but there are certain minimum requirements, which ought to be followed in all cases. For example, employees have the right to be accompanied by a colleague or Trade Union representative at a disciplinary hearing.

In the case of Edwards, the complexity arises from the fact his criminal activity and convictions were unrelated to his work. Further, at the time of his arrest, the BBC claimed it did not have all the details surrounding the offences. It was also known that Edwards was hospitalized due to experiencing severe mental health issues which had worsened since the allegations were made. 

While criminal allegations or convictions alone may not justify disciplinary action or dismissal, there may still be grounds to dismiss. An employer may be able to establish a potentially fair reason for dismissal, if they can show there is misconduct sufficiently serious to justify dismissal for some other substantial reason. 

Employers may consider that an employee’s conduct (in this case criminal conduct outside of the workplace) is sufficiently serious to justify a dismissal on the basis that continuing to employ them would have a reputational impact. They would have to consider the nature of the offence and whether this will attract negative publicity. If so, they would need to consider reputational risk, as well as their health and safety obligations towards other staff, or service users. 

In the case of Edwards, given the nature of his offending, the reputational damage would have had a huge negative effect on the reputation of the BBC – a body that must be seen to uphold the highest standards. Had Edwards not resigned and the BBC continued to employ him, this would have exposed the BBC to disrepute, scandal and contempt. Edward’s link to the BBC could have caused sufficient damage to its reputation to affect the amount of licence revenue the BBC could generate for years to come.   

The BBC probably had all these considerations in mind when it decided not to dismiss Edwards. Edwards had not been found, or pled, guilty and the complex investigation was still ongoing. He was also hospitalised due to a mental health crisis. Failing to follow a fair and reasonable procedure, and disregarding his ill-health, could have exposed the BBC to liability for a claim of unfair dismissal. However, had Edwards not resigned in April 2024, the BBC would have had fair reason to dismiss him following his guilty plea.

When should an employer take action against the employee?

There are no hard and fast rules to apply when determining whether to go ahead with disciplinary proceedings when there is a criminal trial pending. The most important thing is for the employer to conduct its own investigations into the issues and to properly consider the options available in line with their requirements in the Employment Rights Act 1996. Employers have discretion whether to postpone disciplinary action where the employee’s misconduct is also the subject of a criminal investigation and prosecution. Even in emotive cases such as this, an employer ought to be careful not to act precipitously. 

BBC’s obligations to other staff

Whistleblowers who gave evidence to the BBC internal inquiry into Huw Edwards have criticised the way it was handled. One staff member says they were sent flirtatious private messages by the presenter in 2023. They complained that they had not been kept informed about the progress of the inquiry. Another staff member claimed that Edwards sent suggestive messages alongside a picture of his hotel suite.

Such allegations may constitute whistleblowing, which affords the employee various protections from dismissal and detriment, on the ground that they have made a protected disclosure. Providing effective protection for whistleblowers is important for several reasons, including:

  • encouraging a speak-up culture;
  • internal risk control;
  • limiting reputational damage;
  • protecting staff morale; and
  • avoiding unnecessary litigation.

If an employee is dismissed or is subjected to detriment on the ground that they have made a protected disclosure, this can expose the employer to potential tribunal claims for automatically unfair dismissal or whistleblowing detriment. Importantly, financial compensation in respect of these claims is uncapped, so employer liability can be significant.

When someone blows the whistle, the employer should explain its procedures for making a disclosure and whether the whistleblower can expect to receive any feedback. Often a whistleblower expects to influence the action the employer might take, or expects to make a judgement on whether an issue has been resolved, but this will rarely be appropriate.  

It is in the employer’s best interests to deal with a whistleblowing disclosure promptly. This allows the employer to fully investigate, make any further necessary enquiries and determine any appropriate action.  

There are several things an employer should do when a whistleblowing disclosure is made. It is important to make sure that as an employer, you:

  • handle any whistleblowing complaint fairly and consistently;
  • follow any process your organisation has for whistleblowing; and
  • keep the identity of the whistleblower confidential. 

The Government’s Whistleblowing Code of Practice encourages clear and prompt communications between the whistleblower and the employer. They should provide feedback to whistleblowers, within the confines of their internal policies and procedures. This is vital so that whistleblowers understand how their disclosure has been handled and dealt with. Failing to do so may result in the whistleblower approaching other individuals or organisations to blow the whistle externally. Therefore, it is strongly advisable for an employer to have a policy which explains the benefits of making a disclosure, the process and how the disclosure will be dealt with.

Takeaways from this case

It is reasonable to say that this case is far more complex than it may have initially appeared. If you need further guidance in relation to employee misconduct, suspension or dismissal, or you need a whistleblowing or disciplinary policy, please speak to our specialist employment team.

 

 

 

 

Emma Cocker comments on challenging bad references from previous employers in The Telegraph

Posted on: July 5th, 2024 by Natasha Cox

Emma Cocker, Senior Associate in the Employment team, comments on whether an employer can give a bad reference, and how employees can challenge a bad reference from a previous employer.

Emma’s comments were published in The Telegraph, 5 July 2024.

“An employer can give a negative reference, but it must be factual. Employers owe the subject of a reference a duty to take reasonable care to ensure the information it contains is true, accurate and fair. The reference must not give a misleading impression. If a referee gives a reference which is misleading, they may be liable for negligence, either to the new employer or the employee.

“In addition, if a referee knowingly includes false information with the intention that the recipient will rely on it, the referee will be liable to the recipient for a civil claim of deceit.

“It is difficult for employees to challenge a bad reference, unless they can demonstrate that the information was inaccurate, discriminatory or was given in retaliation for raising allegations of discrimination or whistleblowing. In practice, most employees will only become aware of a bad reference once a job offer has been withdrawn. At that stage, it is highly unlikely a prospective employer could be convinced to offer a role again, as the seeds of doubt will have already been sown.

“The only real option is for the employee to take legal advice to see whether they have a claim against the referee. If an employee does become aware of a bad reference before it has been shared with a prospective employer, they should try to discuss the reasons for the negative content with their new employer as soon as possible.

“Protecting your reputation is simple: be the best employee you can be. Courteous, on time for work and reliable – these are all behaviours employers hold in high regard. If there are circumstances which might affect your ability to comply with expected norms, such as being a parent or carer, or having a disability, discuss these with your employer as soon as possible so they are aware of any mitigating circumstances.

“There is a common misconception that employers are obliged to provide references. However, with the exception of regulated industries such as financial services, this is not the case. In reality, most employers will provide a “factual” reference, outlining the employee’s name, job titles and dates of employment, but they cannot be forced to provide further information.

“Employers are also entitled to include a disclaimer within the reference that limits any liability to the recipient of the reference. References may be given orally or in writing. However it is generally safer to provide basic factual references in writing with no further information given to avoid any liability to the employee or the recipient. If incorrect or misleading information is given, the recipient may allege negligence. Do not be tempted to say things on the phone that you wouldn’t commit to in writing!

“If you are not happy with a reference provided by your ex-employer, the first step is to find out whether the reference has actually been sent to the prospective employer. If not, you may be able to talk to your ex-employer and see whether they might be prepared to change the content. Remember however that they are under a duty to provide accurate information, so they may not be willing to change it. Also consider whether their approach or any of the information they have provided might be discriminatory, such as commenting negatively on high absence levels if you have taken a period of parental leave, or on your performance which has been adversely affected by a disability.

“If you have been given a bad reference because of or after raising concerns about discrimination, or after you have “blown the whistle”, you may have a claim against your ex-employer for victimisation or whistleblowing detriment. It is important to take legal advice at an early stage to assess whether you might have viable claims against the referee. This will be especially important if you have lost a job opportunity because of a negative reference.”  

If you have any questions relating to the above, please contact a member of our Employment team.

General Election 2024 – what are the various parties’ proposals relating to employment law?

Posted on: July 4th, 2024 by Natasha Cox

While many may feel that the outcome of today’s General Election is a foregone conclusion, we felt it was important to look at each of the political parties’ manifestos to consider what they are proposing in the field of employment law – and what the consequences of these might be. 

Some of the parties have announced extensive proposals (which could mean the Lawrence Stephens’ Employment team will be extremely busy over the coming months!) while others have caused us to wonder how they will be implemented in light of recent court rulings / existing legislation.

If you have any questions on how the general election may affect your obligations as an employer, please contact any member of our Employment Team (see end of article).

Labour

In summary, Labour propose to:

  • Introduce a day one right to sick pay, parental leave and unfair dismissal;
  • Extend Employment Tribunal time limits for bringing all claims from three months to six months;
  • Ban “exploitative” zero hours contracts (which means an outright ban on such contracts is unlikely);
  • End fire and rehire (although Labour’s New Deal document indicates they would stop short of an outright ban);
  • Set up a single enforcement body to enforce workers’ rights;
  • Alter the criteria for determining national minimum wage so all adults are entitled to the same minimum wage;
  • Create a “Fair Pay Agreement” to allow for sectoral collective bargaining in the adult social care sector;
  • Give employees the right to have a contract which reflects the hours they regularly work based on a 12-week reference period;
  • Require employers with more than 250 employees to have a menopause action plan;
  • Place new duties on large employers to produce ethnicity and disability pay gap reports;
  • Make collective redundancy consultation requirements dependent on the number of redundancies across the whole business rather than the number at each ‘establishment’;
  • Require section 1 statements to inform staff of their right to join a trade union;
  • Introduce a right to ‘switch off’;
  • Consult on an eventual move towards a single status of worker, incorporating all but the genuinely self-employed;
  • Make flexible working a default right unless employers have a ‘good reason’ to refuse it;
  • Reverse the changes made under the Trade Union Act 2016 (which placed more stringent requirements on those engaging in industrial action);
  • Abolish the Strikes (Minimum Service Levels) Act 2023;
  • Remove the requirement for fully postal ballots for industrial action;
  • Make it easier for unions to gain recognition;
  • Give trade unions the right to access workplaces for recruitment and organising purposes; and
  • Introduce a right to unpaid bereavement leave (which is currently only available following the death of a child).

The full manifesto can be found here: https://lnkd.in/eFZQ_mva

Conservatives

In summary, the Conservatives propose to:

  • Overhaul the fit note system to move responsibility from GPs to other healthcare professionals;
  • Continue with the implementation of minimum service level agreements in relation to industrial action;
  • Cut employee National Insurance contributions to 6% from 2027; and
  • Abolish National Insurance for self-employed people by the end of the next parliament.

It’s worth noting that the first two proposals are not new – a consultation on the fit note system had already started before the General Election was called and we already knew the Government planned to introduce minimum service levels during strikes in hospitals and schools. It looks largely like business as usual if the Conservatives are successful.

The full manifesto can be found here: https://lnkd.in/ekQNictf


Liberal Democrats

In summary, the Lib Dems propose to:

  • Establish a new ‘dependent contractor’ employment status between ‘employment’ and ‘self-employment’, with entitlements to basic rights such as minimum earnings levels, sick pay and holiday entitlement;
  • Increase minimum wage by 20% for people on zero-hour contracts at times of normal demand to compensate them for the uncertainty of earnings;
  • Promote employee ownership by giving staff in listed companies with 250+ employees a ‘right to request’ shares;
  • Change the burden of proof in Employment Tribunal claims so that the employer has to disprove employment status, rather than the employee proving it;
  • Improve Statutory Sick Pay by removing the 3-day waiting period and lower earnings limit;
  • Extend the use of name-blind recruitment processes;
  • Make parental leave and pay day 1 rights;
  • Double Statutory Maternity Pay and Shared Parental Pay to £350pw;
  • Introduce a ‘use it or lose it’ month for fathers and partners, paid at 90% of earnings;
  • Introduce new Equality Act protected characteristics of ‘caring’ and ‘care experience’;
  • Require large employers to publish data on gender, ethnicity, disability, and LGBT+ employment levels, pay gaps and progression, and publish five-year aspirational diversity targets;
  • Introduce specialist disability employment support and simplify the Access to Work scheme; and
  • Introduce ‘Adjustment Passports’ to record the adjustments, modifications and equipment a disabled person has received, and ensure that Access to Work support and equipment stays with the person if they change jobs.

While there are undoubtedly some proposals that will be attractive to the electorate, the proposed introduction of ‘dependent contractor’ employment status seems to be something of style over substance – aren’t these people already classified as ‘workers’? In addition, the proposed introduction of new protected characteristics of ‘caring’ and ‘care experience’ seems fraught with difficulties – it would certainly keep us employment lawyers busy with the courts grappling to put into practice what these terms actually mean…

The full manifesto can be found here: https://lnkd.in/ehU4gcMw

Reform

In summary, Reform UK intend to:

  • Abolish IR35 rules to support sole traders;
  • ‘’Scrap thousands of laws that hold back British business and damage productivity, including employment laws that make it riskier to hire people’’;
  • Replace the Equality Act 2010;
  • Scrap all Diversity Equality and Inclusion roles that, “cost huge sums, create division, inequality and exclusion, and reduce productivity.’’; and
  • “Scrap EU Regulations with immediate effect. British Laws on [employment] are still based on EU regulations.”

I think it’s fair to say that Reform UK’s manifesto is somewhat light on the detail of how they plan to achieve the above…

The full manifesto can be found here: https://lnkd.in/eMYNR6Qr


Plaid Cymru

In summary, Plaid Cymru intend to:

  • Support the devolution of employment law to Wales;
  • Make paid bereavement and miscarriage leave a day 1 right;
  • Extend the entitlement to statutory bereavement leave and pay entitlement to all people with a ‘close relationship’ to a person who has died;
  • Increase Statutory Sick Pay (SSP) in line with Statutory Maternity Pay (SMP) and remove the lower earnings limit;
  • Reform Shared Parental Leave;
  • Consider making Carer’s Leave paid;
  • Re-introduce the ‘bankers’ bonus cap’
  • Implement an apprenticeship living wage and pay social care workers at least £1 above the real living wage;
  • Investigate increasing higher earners’ National Insurance contributions and promote employee ownership models;
  • Reverse “the Tories’ regressive anti-strike legislation”;
  • Support legislation to tackle insecure work and outlaw fire and re-hire tactics;
  • Abolish compulsory zero-hours contracts;
  • Establish the right to ‘disconnect’;
  • Promote LGBTQ+ inclusion throughout society, including all workplaces, and propose a simplified, de-medicalised gender self-identification system;
  • Adopt the United Nations Convention on the Rights of Disabled People into UK law and introduce a Business, Human Rights and Environment Bill which would mandate that private companies conduct due diligence in their supply chains to prevent human rights abuses; and
  • Put the power to decide Bank Holidays in Wales in the hands of the Senedd and make St David’s Day a Bank Holiday in Wales on 1 March each year.

There’s definitely some overlap here with the other manifestos described above (i.e. Labour’s pledge regarding the right to disconnect, as well as increasing SMP and SSP, reforming zero hours contracts and making some employment rights available from day 1).

However there are also some issues that are likely to be divisive, such as the proposal to introduce a simplified, de-medicalised gender self-identification system. How will this work in practice in light of such decision as Adams v Edinburgh Rape Crisis Centre, Meade v (1) Westminster City Council; and (2) Social Work England and Forstater v CGD Europe?

The full manifesto can be found here: https://lnkd.in/enRssnpZ

SNP

In summary, the SNP intend to:

  • Support the devolution of employment law to Scotland to enable changes such as banning ‘exploitative’ zero hours contracts and ‘fire and rehire’, as well as increasing the level of the National Minimum Wage and removing the age brackets;
  • Create a single status of ‘worker’ for all but the ‘genuinely self-employed’;
  • Increase access to statutory sick pay by removing the lower earnings limit and the waiting period;
  • Increase the rate of Statutory Maternity Pay to 100% of average weekly earnings for the first 12 weeks, dropping to 90% of average weekly earnings or £150 (whichever is lower) for 40 weeks;
  • Increase the available period of Shared Parental Leave from 52 to 64 weeks with the additional 12 weeks to be the minimum taken by the father on a ‘use it or lose it’ basis to encourage better uptake of the statutory right; and
  • Support the repeal of the Strikes (Minimum Service Levels) Act 2023 and the Trade Union Act 2016

Any of this sounding familiar?

The full manifesto can be found here: https://lnkd.in/eh5YiBKj

Greens

In summary, the Green Party intend to:

  • Repeal anti-union legislation and introduce a ‘positive’ Charter of Workers’ Rights, containing a right to strike and a legal obligation on employers to recognise trade unions;
  • Remove ‘arbitrary’ ballot thresholds and requirements for postal ballots;
  • Overturn bans on secondary picketing and industrial action for political objectives;
  • Introduce a maximum 10:1 pay ratio for all private and public-sector organisations;
  • Increase the national minimum wage to £15 an hour, regardless of age;
  • Campaign for ‘safe sick pay’;
  • Provide equal rights for all workers from their first day of employment, including platform workers, zero hours workers and those working in the ‘gig economy’;
  • Properly fund the enforcement of workers’ rights and abolish tribunal fees;
  • Move to a four-day working week;
  • Transition towards a green economy, led by workers and trade unions;
  • Establish an Offshore Energy and Skills Passport so that workers can transition between offshore energy industries;
  • Require all large and medium-sized companies to carry out equal pay audits, redress any inequalities and extend pay-gap protections to all protected characteristics;
  • Introduce a right to flexible working and ensure disabled workers have the in-job support they need, as well as ‘proper pay and conditions’;
  • ‘Defend’ the Human Rights Act 1998 and continued access to the European Court of Human Rights;
  • Protect the right to religious expression and support gender self-identification for trans and non-binary people; and
  • Push for a precautionary regulatory approach to the development of AI, ensuring that workers’ rights and interests are respected when AI leads to significant changes in working conditions.

The full manifesto can be found here: https://lnkd.in/emtteMbV

If you have any questions on how the general election may affect your obligations as an employer – or any other employment law concerns, please contact any member of our Employment Team (see below).

Changes to the obligation to inform and consult on TUPE transfers

Posted on: July 1st, 2024 by Natasha Cox

Changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) come into effect on 1 July 2024.

These changes are likely to be welcomed by small to medium-sized businesses as they provide greater flexibility to employers in complying with their duty to inform and consult affected employees in relation to a TUPE transfer.

A business preparing for the sale of part or all of an undertaking or service provision can now consult directly with affected employees if:
– there are no recognised trade union or employee representatives AND
– the employer has not already invited the affected employees to elect representatives AND
– either the employer has fewer than 50 employees OR
– fewer than 10 employees will transfer.

There is nothing to prevent an employer in either scenario from arranging an election to vote for employee representatives if this is preferred.

Please get in touch if you require any advice as to how to get the process right for your business. A failure to do so can be costly: transferors and transferees are jointly liable for any breach of the duty to inform and consult. This could result in protective awards reaching as high as 13 weeks’ gross pay for each affected employee.

The potential pitfalls of unlimited annual leave

Posted on: March 20th, 2024 by Natasha Cox

Many employers including LinkedIn, Netflix, Eventbrite and Dropbox are now offering their employees unlimited annual leave.

Unlimited leave reflects a significant uplift on the statutory minimum position. Under the Working Time Regulations 1998, full-time employees are legally entitled to 5.6 weeks’ paid holiday each year, which translates to 28 days, including bank holidays. Part-time staff are also entitled to 5.6 weeks, the number of days being dictated by how pro-rated their working time is.

While undoubtedly a great selling point to potential new recruits, is unlimited annual leave more hassle than its worth for an employer?

Potentially, yes. Employers need to be extremely careful when implementing an unlimited annual leave policy because failing to set appropriate expectations and creating a clear and well-structured policy could lead to significant problems. For example, how does one calculate the annual leave owing (or owed) when an employee’s employment comes to an end if this is not specified in their contract or the leave policy? Likewise with the continued accumulation of leave during a period of family leave.

No employer is likely to be content with an employee taking 52 weeks’ annual leave in a leave year, not least because they won’t be able to do the job that they’re employed to do. If you are offering unlimited annual leave, employers must ensure adoption of and adherence to minimum performance criteria, as well as having robust performance measures in place to objectively assess how well the employee is performing.

Further, employees will still need their manager’s permission to take time off, which could result in the policy being enforced differently from one manager to another. This may lead to accusations of favouritism, or differing treatment of employees in relation to any of the nine protected characteristics under the Equality Act 2010.

Lack of cover during an employee’s holiday may also discourage them from taking time off, undermining the incentive for annual leave altogether.

It is ultimately important to strike a balance between the needs of the business for employees to carry out the jobs they are employed to do, and the ability to attract and retain the right talent. While offering unlimited annual leave is certainly likely to assist with recruitment and retention, its implementation needs careful handling to avoid unintended consequences.

Talk to us if you would like to discuss the pros and cons of enhanced employee benefits.

Government consultation response: non-compete clauses to be limited to three months

Posted on: October 25th, 2023 by Natasha Cox

The government has announced plans to limit the length of non-compete clauses in employment contracts in its response to a 2020 consultation on their reform.

Non-compete clauses are one of several types of post-termination restrictions that are often found in employment contracts. These restrictions typically restrict an employee’s ability to work for a competitor for a set period following the termination of their employment, but can also restrict their ability to canvass or solicit clients and customers, as well as poaching colleagues.

To be enforceable, restrictions must not be any wider than reasonably necessary to protect legitimate business interests. Examples of legitimate business interests include client, supplier or customers relationships, and confidential information.

Non-compete clauses are the most restrictive option, with employees frequently seeking to argue they prevent them from securing alternative employment during the restricted period. 

In 2020, the Government published a consultation paper exploring options for reform, including mandating that non-compete clauses be unenforceable unless the employer provides compensation for the period of restraint, or making all non-compete clauses unenforceable.

The government has now rejected the possibility of making employers pay employees during a restricted period, citing concerns around substantial costs and supressing growth. Instead, it has proposed to limit the period of non-compete restrictions to just three months.

While these are just proposals, and properly drafted non-compete clauses lasting longer than three months continue to remain effective at present, employers need to carefully consider the impact on their business if the option to have a longer non-compete period is removed. It is worth considering what other protections can be put in place to achieve as near as possible the same level of protection currently afforded by a non-compete restriction.

Contact us for advice on post-termination restrictions and updating your contracts of employment.