Category Archives: News

Joe has left the building!

disconnect from work

The debate about the right for workers to disconnect from work is back on the agenda.

Portugal increases workers’ rights

Following in the footsteps of France, Italy and Spain, Portugal has introduced legislation to protect workers’ rights to have a work life balance and in particular disconnect from work.

Portuguese employers will only be able to contact staff outside working hours in exceptional circumstances. Workers will also benefit from a significant level of additional protection. Any extra costs associated with homeworking such as insurance and internet bills will be borne by the employer. Parents with young children will be able to work from home without prior agreement from their employer.

Is there a basis for us following in Portugal’s footsteps?

Autonomy the independent thinktank that looks at today’s changing workplace published a paper “The Right to Disconnect” earlier this year to consider this issue, which predominately arises from homeworking during the pandemic. Its study concluded that the pandemic has given rise to a significant amount of hidden overtime, negatively affecting workers’ mental health and a disproportionate number of working women. These findings led to a proposal that the bedrock of our employment law, the Employment Rights Act 1996, be amended.

Under any new law, Autonomy proposes that employers would be unable to require workers to work, monitor or respond to work-related communications outside working hours. Any sanction imposed on a worker for refusing to work, would allow them to bring a claim in the employment tribunal. Industry sectors that could demonstrate this arrangement would not be feasible in light of the nature of their operations would be exempt.

Do we need to do better?

The Portuguese model and Autonomy’s report would suggest that we need to do better when it comes to protecting workers’ rights as there is currently no specific legislation in place to address the issues Autonomy identified. However, the laws already in place to protect workers cannot be ignored.

Our legislation restricts the number of hours a worker can work to 48 hours per week in the absence of an opt out, and there is provision for rest breaks during the course of the working day and week. Likewise, employers are under a duty to ensure that the system of working is safe, which includes protecting workers’ mental and physical wellbeing; any risk assessments used to demonstrate the system is safe must include consideration of the hours culture and how this would impact on workers’ health. Working parents also have the right to request flexible working, use the dependent care leave provisions in emergencies and request parental leave if time away from the business is required. From day one,  employers must be transparent about working hours by confirming the hours and days to be worked, whether the working time will vary and if so, how. Workers may also be able to claim tax relief for expenses

The current raft of legislation although not specifically focused on the right to disconnect and homeworking, does go some way to protect the rights and wellbeing of workers.

Is further legislation the solution?

Any legislation will only be successful if it balances the rights of the workers with the need of an organisation to run an effective and financially viable operation. A ridged one size fits all approach is unlikely to achieve the right balance. Certain industry sectors and roles will never be able to operate in a right to disconnect culture. Legislation is also likely to prevent workers having the freedom to choose when and how they work. Research recently undertaken by Suffolk University has highlighted that taking away a worker’s choice may cause more stress and anxiety; something the right to disconnect laws in other countries has sought to alleviate.

Organisational culture may be a better place to start!

One school of thought is that legislation is not the answer in the UK given there are so many variable when it comes to running a business; instead, employers should be looking at their own working hours culture to identify if there is an issue and if so, how this can be addressed. Such a review may identify that the business is not as well run as it could be. Multinational companies such Lidl, Volkswagen and Siemens in Belgium and Germany appear to have already taken the lead in this regard by introducing their own rules to suit their operations but providing protection for their workers.

What does the future hold?

There appears to be no legislation on the horizon making the right to disconnect a legal right. While the momentum that has been gathering appears to be in Europe, the right appears to be achieving some consideration in the US and Canada. So to some degree, it is possible that your business if it is part of an international operation or does business overseas may well find that it will need to adjust its operations to reflect the fact in some circumstances personnel will have disconnected.

It is still important to remember that the right to disconnect is in part about  managing wellbeing and having a good work life balance. While there is currently no law mandating the right to disconnect, workers can still challenge a long-working hours culture under our current legislation. Employers are still at risk of a variety of different legal claims such as discrimination complaints, constructive unfair dismissal, breach of the working-time legislation or personal injury claims.

To minimise the risk of any legal challenge, employers as a minimum should identify if there is a long-working hours culture and if so, look at ways where possible to reduce the impact this may have on its workers. A good place to start is the health and safety risk assessment, which should address the issue of mental wellbeing and not just the risk of physical injury; measures should be introduced if any risks are identified.

 

FG Solicitors are experts in all areas of Employment Law and HR. Please feel free to call us on 0808 172 9322 for a no obligation discussion.

For further details about the commercial legal service and assistance we provide to businesses, please click here. 👇

www.fgsolicitors.co.uk/services/

This update is for general guidance only and advice should be taken in relation to a particular set of circumstances.

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Data security, hybrid working and the ICO

In our recent article about hybrid working we identified some of the issues that employers needed to consider when their workforce is working sometimes on site and on other occasions elsewhere, usually home.

Many employers have used the pandemic to revaluate how their employees work, including where the work is done from because of the perceived benefits arising from employees working remotely, including higher levels of engagement because they feel that they have a better work life balance.

While there are many benefits, employers need to be reminded that there are some issues that will present more of a challenge than others.

“Data security risks are likely to be greater where there is hybrid working”

Good technology may be capable of saving the day in many cases. However, there is much room for human error, and it is therefore necessary that employees are aware of the need to work responsibly.

Employers may think that that they have managed well without much risk if there have been clear policies and procedures in place when employees were working solely from home. Hybrid working is different as employees will be moving around more, which means there is a greater risk of data and information being lost or getting into the wrong hands. Those practices that have kept the business safe may need to be adjusted to address additional risks.

“The ICO has been sympathetic to homeworking arrangements during the pandemic but has stressed organisations need to ensure that the systems in place are safe”

During the pandemic, the ICO accepted that employers had to adopt homeworking and new IT solutions very quickly. While the expectation was that organisations ensured that their systems and way of working were safe and any security threats addressed, there was some acknowledgement that we were not operating in an ideal world.

The ICO is now picking up where it left off at the start of the pandemic by reviewing past complaints. The expectation is that there will be less sympathy for organisations who are faced with data breaches. Any hybrid working arrangements that lead to a data breach will be scrutinised by the ICO and action will be taken.

” Organisations need to understand and implement good practices when it comes to data security”

If hybrid working is to become a permanent fixture, you need to keep in mind that the ICO is unlikely to show much sympathy for a data breach.

Given the level of scrutiny that can arise when there is a data breach and the reputational and financial risks it makes sense to test current technological systems and employee practices to identify any weakness.

The aim will be to ensure employees are working securely. A good place to start is to ensure that the ICO’s guidance generally and on working from home is followed. Further details are on its website. Contracts of employment and policies covering IT, social media and data protection may need updating to emphasise the importance of confidentiality and complying with the data protection laws. Your employees’ approach to data retention and disposal may also need to be reviewed.

Given the level of scrutiny by the ICO if there is a data breach a data impact assessment is advisable. A data impact assessment will help you manage any risks upfront and is essential if the business is handling sensitive personal data.

In the case of a data breach, the ICO may well ask about the decisions that have been made about data management and security with reference to a relevant data impact assessment. The absence of one will be unsatisfactory in the eyes of the ICO. A comprehensive data impact assessment that has been implemented shows that you are working with the data privacy laws.

“Understand risk and taking responsibility”

Your policies will only protect your business if your employees understand the risks and the need to act responsibly. Clear communications and preventative training are therefore important. It may have to be spelt out that a failure to comply with the policies could lead to disciplinary action, including dismissal.

“It can never happen to us!”

While we often see household names being shamed by the ICO for data breaches, any organisation is vulnerable to a data beach and will be treated in exactly the same way. The ICO’s focus will be on the breach, the damage that has been done and what measure had been in place to avoid the breach. The current maximum fine is £17.5 million or 4% of the total annual worldwide turnover. The ICO publishes a list of the organisations that have been fined.

In many cases, a data breach can be avoided if the correct technological and operational measures are put in place. It is however important that those measures are regularly assessed to ensure that they are fit to manage the ever-present risk of a data breach. By assessing the risk and implementing appropriate measures you are however likely to keep your business off the ICO’s list.

FGS’ legal team includes specialists in data protection and privacy law, which enables us to advise on GDPR compliance including commercial contracts, policies and procedures, data breaches, subject access requests and privacy issues.

If you require further advice about data protection, please feel free to call us on 0808 172 9322 for a no obligation discussion.

For further details about the commercial legal service and assistance we provide to businesses, please click here. 👇

www.fgsolicitors.co.uk/services/

This update is for general guidance only and advice should be taken in relation to a particular set of circumstances.

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What is it like to be a newly qualified solicitor? Here is an insight of what it is like for Ramona our FGS newly qualified solicitor…

Hi, it’s Ramona here from FG Solicitors.

I started with the firm in May 2018 as a member of the Business Support Team. After 8 months, I transferred into the Legal Team as a Legal Assistant, providing support to the firm’s solicitors. By August 2019, I had started my training contract and qualified as a solicitor in February 2021.

The day in the life of a newly qualified solicitor is ever changing, take a look at a day from last week…

6:30am My day starts off with a bit of yoga and a fresh coffee in the garden. After catching up with the news, I get ready and head into work.

8:30am By the time I reach the office, I am ready to attack the day. It starts off with checking my emails, calendar and the daily tasks list to forecast what my day will look like. However, a day in the life of a lawyer does not always stick to the plan as clients may call with an urgent piece of work that needs to be turned around on the same day. Prioritisation and flexibility are key.

9:00am It’s time for the legal team meeting. An opportunity for my colleagues and I to discuss ongoing work, bounce ideas and strategies across to one another and set out our priorities and goals for the day. Part of FGS’ values is to create a collegiate culture where team members can support and learn from one another in an open space. The morning meeting is the perfect example of the team coming together and practicing this value.

9.30am One of our UK based retainer client’s is expanding into Ireland and requires an Irish consultancy agreement for a number of independent contractors. I spend the next hour and a half preparing the first draft of the precedent to ensure it is compliant and tailored to meet our client’s needs. I liaise with Helen Taylor, a Principal and senior employment lawyer, who has had previous experience working with a number of Irish based companies discussing the general principles and laws surrounding employment status in Ireland.

11.00am Floyd Graham, the Managing Principal and I attend our recurring weekly meeting with our client. Acting as General Legal Counsel for our international client, this meeting is an integral part of its 14-year relationship with the client. The meeting is an opportunity for our client to seek advice on any legal matters and updates on current projects.

12:00pm I attend a mediation meeting on behalf of our client who is currently dealing with a contract dispute. During the mediation, we set out our client’s legal position and undertake negotiations with a view to settling. Having worked on the case from the beginning and being heavily involved in preparing the statements of case, I am responsible for taking notes and assisting Floyd during the advocacy with identifying relevant documents and legislation. The mediation is successful and the matter has settled. I will draft the consent order and issue it to the other side tomorrow.

13:00pm It’s lunch time. I take out my packed lunch and sit around the table with my colleagues either chatting away or watching an episode of The Office. We have always been encouraged to take a break and switch off at lunch so it’s a great time to just sit back and relax and get involved with the lunchtime discussions.

14:00pm Floyd and I attend a client site for a strategic planning session and to get a deeper understanding of the operations of the company. Our client is contemplating a management restructure and wishes to also utilise our services for an audit of its existing HR and contractual documentation. As part of our audit framework, we will attend client sites for the purposes of undertaking individual consultations, training sessions and planning with the senior management team.

16:00pm Our client requires a master service agreement for a tender they have recently won. I review the existing documentation between our client and the customer. With the assistance of Pippa, our trainee solicitor, we begin drafting the schedules to the agreement dealing with our client’s services, KPIs, service levels and service credits, charges & data protection.

17:00pm I attend a Teams call with one of our client’s other professional services providers in New York to deal with an employment matter relating to a separation and release of claims agreement I had drafted the day before.

18:00pm My day is complete, and I attend to any outstanding admin tasks which I had not completed during the day, this will include time recording, file referrals, archiving and updating the daily tasks list. As I have completed the targets I set out for myself for the day and there is no additional incoming work, I gather my stuff and head home. I usually spend my evenings with my family or partner and take the dogs for an evening walk.

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A hybrid working era… is your Business ready?

 

The buzz word has become  “hybrid working,” where individuals split their time between home and their employers’ premises. For many employers it is a compromise to full-time remote or homeworking. Despite the lifting of lockdown restrictions, it appears to be a working model that is here to stay.

“The trend for working from home will continue to be commonplace.”

The statistics are clear; there has been a shift in the way many of us will work in the future. The Institute of Directors’ 2021 survey of business leaders showed that 63% of them intended to move towards one to four days of remote working per week. The British Chamber of Commerce’s research identified a similar trend with more than two-thirds of businesses continuing to offer some remote working. The professional body CIPD topped this off by finding that some 66% of employers planned to introduce or expand the use of hybrid working.

“Hybrid working creates employment law and HR challenges if employers do not assess whether their current employment documentation is fit for purpose.”

If hybrid working is to become the norm for your business, you need to ask whether your business is actually ready for this change. The following top-level questions need to be considered when assessing your level of readiness:

  • What do your existing HR policies say and do they support hybrid working?
  • Have you considered how your employees will be managed and supervised?
  • Do contracts of employment need updating to reflect the change?
  • Is the business insured for staff working from home?
  • How will confidential information and personal data be protected?
  • How will employees’ health and safety be protected?
  • Are there any hidden costs?

In most cases, HR practices, policies and procedures are unlikely to be able to accommodate this new way of working and will need updating. If hybrid working is to be adopted, now is the time to take stock by reviewing and auditing your business’ practices and procedures to ensure that the behaviours to support an effective hybrid working model are clearly defined.  Where there is certainty and clarity, there is less legal risk.

“Hybrid working is going to be a welcome benefit for most employees but there are still legal risks that need to be managed.”

Happy employees usually means employers do not have to worry about grievances and tribunal claims. There are however some key risk areas that need to be managed.

If terms and conditions are to be changed, employees will need to agree. While most employees are likely to be happy, if agreement cannot be reached, the change cannot be imposed unilaterally. To do so could be a breach of contract and also lead to constructive unfair dismissal claims. Consultation is therefore essential.

All employees need to be treated consistently whether they work from the employer’s premise or from home. Discrimination complaints can arise where a difference in treatment results in those with protected characteristic being worse off.

Just because employees are off site does not mean the duty to protect their health and safety stops. Employers still have a duty of care to ensure employees’ welfare is protected. A failure to ensure there is appropriate protection could give rise to negligence claims.

With the focus being on employee rights and particularly on employee wellbeing, business owners need to step back and ask themselves what they are doing to protect their businesses.”

Adopting a hybrid working model is not just about changing the place of work or carrying out a health and safety risk assessment.  While  any HR  audit referred to above needs to address these issues and employment law risks, consideration must be given to the broader financial and commercial risks that arise from homeworking, which could affect the business’ reputation or cause financial loss.

Where employees are working from home, employers have less control; the risks of a  data breach, the loss of confidential information or the misuse of social media are increased. If the aim is to protect the business, consideration should also be given as to whether post-termination restrictions remain reasonable and relevant where there has been a change to the workplace. Likewise, to protect intellectual property rights further clarity is required to ensure that there is certainty over ownership when work has been created from home.

A risk assessment to identify how high the risks are and how to manage them is sensible. In the case of data security, a move to a hybrid working model would justify a data protection impact assessment.

Embracing hybrid working has many benefits for businesses and their workforces. However, if this model is to be effective and sustainable, employers need to be aware of all the risks and introduce measures to minimise those risks.

FG Solicitors offer a proactive and practical approach, providing Businesses with the confidence to tackle the legal issues and risks that arise from the introduction of hybrid working.

Why not give us a no obligation call on 0808 172 9322?

This update is for general guidance only and advice should be taken in relation to a particular set of circumstances.

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End of lockdown restrictions – How will your Business deal with these questions?

  • “Can we get all staff back to the workplace?”
  • “Who should we still let work from home?”
  • “Can I still have a policy on social distancing in the workplace now that it’s no longer compulsory?”
  • “Are there any specific health and safety requirements that need to be implemented?”
  • “Can employees still ask to wear face masks?”
  • “Is it true that there is a focus on good workspace ventilation?”
  • “Should the cleaning and sanitisation policy continue?”
  • “Should I update our COVID-19 health and safety risk assessment?”
  • Do I need to consult with employees about the end of the lockdown restrictions?
  • “Can I insist employees take regular COVID tests and ask for the results?”
  • “Do I have the right to ask about vaccinations?”
  • “Do I have to permit employees to work from home?”
  • “Can employees be asked to use the track and trace app?”
  • “What do I have to pay employees who have been contacted by track and trace and asked to self-isolate?”
  • “Do I need to take particular care for those employees who are pregnant,, clinically vulnerable or who have disabilities?”

The end of lockdown has arrived but not in a COVID free landscape.  The Government’s aim is that all employers take steps to reduce the risk of COVID-19 spreading by making their workplaces safer.

Are you prepared for what this means for your business and you can achieve this?

FG Solicitors offer a proactive and practical approach, providing Businesses with the confidence to tackle employment issues.

Why not give us a no obligation call on 0808 172 9322.

This update is for general guidance only and advice should be taken in relation to a particular set of circumstances.

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What is it like to be a trainee solicitor? Here is an insight of what it is like for Pippa our FGS trainee solicitor…

Hi, I am Pippa, a trainee solicitor at FG Solicitors.

I joined the firm in August 2020 as a Legal Intern, and now having completed six months of my training contract, I can honestly say that every day at FG Solicitors is different. Whilst there is no typical day as a trainee, here is a day from last week.

6:45 I wake up, workout and get ready for work. Having a short commute (just 15 minutes) means that I have plenty of time in the mornings for hitting the gym, reading a book or keeping up to date with the latest news.

8:15 I arrive at the office, have a catch-up with the team and sit down with a cup of tea. I always check my emails, the calendar and our tasks list first thing in the morning, so that I know what we have on that day.

8:30 I sit down with Floyd Graham, the Managing Principal and my training supervisor, to make some final amendments to a letter that I drafted for a client regarding a shareholder dispute. One of the best things about being a trainee at FG Solicitors is that I am given the responsibility of drafting documents and letters on topics that I have not come across before, with the comfort that these will always be checked by a supervising principal. Floyd and I discuss the amendments that need to be made, and I ask any questions that I have on the topic. I always keep a copy of any amendments in my training log and use these for the next time that I undertake a similar task.

9:00 The legal team meeting. We sit down together as a team every morning to discuss our priorities for the day. We also discuss any complex, challenging and interesting matters that have arisen, which, as a trainee, I have found to be very useful.

09:30 I attend a client meeting with Floyd and Ramona Bakshi, a newly qualified solicitor, regarding a commercial dispute. During the meeting I am responsible for taking notes and assisting Floyd with identifying relevant documents and legislation.

10:30 Following the client meeting, Floyd, Ramona and I discuss the legal and commercial issues from the client’s perspective. Having done this, we create a project plan and begin to prepare a letter rejecting a part-36 offer and making a counter offer, which is due by the end of the following day. As Floyd has an urgent meeting to attend, Ramona and I draft the remainder of the letter together before it is checked and sent to the client for final approval.

11:30 I have been working on the first draft of a defence to an employment tribunal claim. The defence has to be filed by the end of the week, so I spend the next hour reviewing the client documents and the claim form in preparation for a meeting with my supervising principal to review the draft and make any amendments.

12:30 Lunch! I usually bring lunch from home so that I can sit with my colleagues, watch something on the TV and have a chat. Today, we have ordered lunch in, so we all sit together to eat and talk. From my first day at FG Solicitors, lunch time discussions have been one of my favourite things about the firm, it is a great opportunity to get to know my colleagues better.

13:30 We have recently assisted a client to expand their business into a foreign jurisdiction, by incorporating a branch of the Company in Germany. As a trainee, I was responsible for researching German incorporation requirements and preparing the first draft of the incorporation documents. Following on from the incorporation, the client now requires a set of bespoke German precedent contracts for their German employees. After speaking with Helen Taylor, a Principal and senior employment lawyer, about German employment law, I begin to research the specific requirements and prepare the precedent contract.

16:45 A principal asks if I can assist them with researching US contractors’ licence requirements, as a client is having an issue with their US operations. I use our international resources to research the matter and identify the cause of our client’s issue. As I am not able to find all of the information that the client needs, I telephone the Washington Secretary of State and the Washington State Department of Labour and Industry to resolve the issue for the client.

17:50 I check off all the tasks that were completed and write a to do list for tomorrow with any outstanding tasks. After this I finish any administrative tasks such as client referrals, time recording and file notes before checking with my supervisor and colleagues whether they need any assistance.

If we do not have any urgent pieces of work, we are always encouraged to finish work and go home, so that we have an opportunity to unwind, be active or spend time with friends and family. However, when there is a deadline that needs to be met, the team always pulls together and to ensure that we deliver for our clients.

During my first few months as a trainee, we worked on a company acquisition, which meant that we had to stay late in the office on a few occasions. As a trainee, I had always anticipated the need to stay in the office late, but at FG solicitors, staying late is a little different, we order a takeaway, gather our laptops and the papers and get the job done as one team.

18:00 I leave the office and drive home. When I get home, I head out with my partner for a game of tennis at our local club.

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Is it ok to say no to the growing trend for flexible working?

During the pandemic having to balance the need to remain  operationally effective and financially viable with the requirement that people should  work from home meant the majority of employers had to adapt quickly to a different way of working. The outcome was that workers were either furloughed, worked remotely or had a more flexible working arrangement to manage health risks.

In anticipation of the change to the work from home guidance, employers have more recently been planning what the future workplace will look like for their organisations. While some organisations have been clear about their position, for many others there is still a lot of uncertainty and confusion about what to do when it comes to this issue. This is made all the more difficult given the amount of press coverage flexible working has commanded over recent months suggesting it should be the norm.

The TUC advocates flexible working for all!

If the Trades Union Congress (“TUC”) has its way flexible working should be the norm. Earlier this week it tweeted in response to the change to the work from home guidance that no one should “miss out” on flexible working.

While the remainder of the TUC’s tweet had some merit by acknowledging that the same approach to flexible working will not work for all employers and promoting the need to consult with staff about continuing flexible working patterns, creating an expectation that everyone should have the right to work flexibly is  unrealistic. It is also a very simplistic view.

Employers do have a choice…

For employers who are still trying to work out what is best for their organisation such comments like the one made by the TUC are unhelpful because they create  a mistaken belief that there are automatic rights when it comes to the way that employees would like to work.

The TUC appears to have forgotten that the current legal framework provides that in most cases there is no automatic right to flexible working. Although there is a process to follow, employers can refuse flexible working on one or more of the legally permitted eight business grounds which take into account the needs of the organisation, its customers and other colleagues.

It is ok to say no… 

Despite the emphasis being on the need to embrace flexible working, there is nothing wrong with an organisation once it has weighed up the pros and cons in deciding that flexible working  for all its workforce is not the right operating model, and instead leaving individual cases to be dealt with when they arise. Interestingly, even in the future, if the government makes flexible working a right from the first day of employment, which has been proposed, employers will still be able to exercise commercial judgment and refuse to offer a role on a flexible basis where there is good reason to do so.

Employers must however know how to manage flexible working requests…

Organisations who choose not to go down the flexible working route for all will still need to be prepared to manage expectations and any formal flexible working requests under the current legal framework. For further information about managing such requests, please click here: As an employer would you be prepared to introduce flexible working as the norm?

Still not sure what to do?

If you are unsure if flexible working should be the new norm for your organisation  or are concerned about managing a formal request, find out what you CAN do by contacting FG Solicitors on 0808 172 9322 for a no obligation discussion.

FG Solicitors employment law specialists offer a proactive and practical approach, providing employers with confidence when it comes to managing their day-to-day employment law and HR issues.

WELCOME TO A MORE CONFIDENT FUTURE!

For further details about the commercial legal services and assistance we provide to businesses, please click here. 👇

https://www.fgsolicitors.co.uk/services/

This update is for general guidance only and advice should be taken in relation to a particular set of circumstances.

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If put to the test, how will you demonstrate you are an equal opportunities employer?

Many employers consider they are an “equal opportunities” employer because they have an equal opportunities policy. While this demonstrates a commitment to treating people fairly and equally, it is just the start and is no longer enough to eliminate discrimination and encourage diversity in the workplace.

A better assessment of whether your business is an equal opportunities employer is your response to the questions below.

  • Do you have diversity in the workplace?
  • Can you say your workplace culture is inclusive?
  • Do you have clear policies to tackle discrimination?
  • Are employees and workers aware of their responsibilities?
  • Are your policies and procedures robust?
  • Do you know how to manage grievances involving discrimination?
  • Do you monitor diversity and inclusivity in the workplace?

If you answer “no” or you are “not sure”, then you are probably unlikely to be able to demonstrate you are an equal opportunities employer, if asked to do so or challenged.

Why does it matter?

There are a variety of reasons for getting it right, from creating a great place to work, having the competitive edge to managing legal risk.

Purely from a people management perspective a workplace culture that is underpinned by a strong equal opportunities culture has the competitive edge. It will help people achieve their full potential, which will make a significant contribution towards the achievement of operational and financial goals. It is also a great tool for retaining and attracting the best talent.

In a business-to-business scenario, many organisations want to know more about who they are doing business with. This means more than being simply advised that an equal opportunities policy exists. Requests for information in tender processes have become more forensic with their enquiries. A workforce profile focusing on gender and ethnicity data particularly focusing on the senior level will be the starting point. Gender and ethnicity pay gap details may be required. Currently, private and voluntary sector employers with 250 or more employees will need to publish their gender pay gap figures. There is however currently no legal obligation to publish ethnicity pay gap figures. You may also be required to describe ongoing diversity and inclusion initiatives, including details of how success is measured.

Of equal importance and even more important when it comes to protecting the business’ reputation and financial wellbeing, is the need to manage the legal risk of possible discrimination claims.

What are the legal issues?

The Equality Act 2010 prohibits discrimination on the grounds of a number of protected characteristics namely, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

Employers needs to understand the broad scope of the Act:

  • Job applicants and workers are protected.
  • The employment life cycle from recruitment to terms and conditions, pay, through to training, promotion and dismissal is covered.
  • Certain standards of behaviour in the workplace are required. Workers and job applicants must not be discriminated against, harassed or victimised by another person because they have any of the protected characteristics identified above.
  • Someone who is perceived to have a protected characteristic or where they are associated with someone who has a protected characteristic, are protected from discrimination.

Compensation for successful discrimination claims is uncapped. An award of compensation can include financial loss, injury to feelings and personal injury.  For the period 2019/2020, the highest award for discrimination was in a case of disability discrimination where the claimant was awarded £265,000. This appears high but given the complexities of discrimination claims, which often involve multiple complaints, compensation can be even higher. This year in the case of Barrow v Kellog, Brown & Root (UK) Limited, the tribunal awarded Mr Barrow £2.5 million in compensation arising from unfair dismissal and disability discrimination complaints. This is one of the highest damages award for discrimination but is only the second highest for disability discrimination! This shows that there is genuinely no limit on the compensation that can be awarded.

Employers also need to recognise that anything done by their employees or workers in the course of their employment will be deemed to be done by the employer. This is the case, even if the employer was unaware or did not authorise it. To avoid liability, employers would have to be able to demonstrate that all reasonable steps have been taken to prevent unlawful discrimination in the workplace. The message from the Employment Appeal Tribunal earlier this year in the case of Allay (UK) Ltd v Gehlen is that an equal opportunities policy and the fact there has been training is insufficient for an employer to escape liability for discrimination carried out by its employees. Employers must ensure that the workplace training is of substance and conducted regularly, at least annually. How recent or current is your workplace training on discrimination?

So, what is next for your business if you answered “no” or “not sure”?

You may decide that you do not need to do anything if you are relaxed about the people management or business-to-business perspectives. You may also take the same view when it comes to the risk of a discrimination claim.  However, the latest figures with regard to employment tribunal claims, while showing a reduction in the number of single claims, indicates an aggregate increase in claims over the last few quarters. Our experience is that many claims now have a discrimination angle.

If the tribunal figures are not a signal for change, it might be worth thinking about the recent case of Forstater v CDG Europe and others. In this case, the employer had to grapple with the issue of “philosophical belief” under the Equality Act 2010. Ms Forstater had gender critical beliefs, including a belief that sex is immutable i.e., there are only two genders, male and female and there can be nothing in between or that it is never possible to change sex. Ms Forstater debated her views on social media, which colleagues raised concerns about as they could be offensive to transgender people. As a consequence of her views, Ms Forstater’s engagement as a visiting fellow was not renewed. Ms Forster claimed that her gender critical belief constituted a protected characteristic, namely a “philosophical belief” and that the non-renewal of her contract amounted to discrimination. The Employment Appeal Tribunal agreed with this position, even though her comments could be offensive to others.

While this is an important decision because of its impact on the debate over trans rights and the rights of those with gender critical views, the purpose of highlighting it is to raise the question as to how your business would address such complex and sensitive issues and would it be prepared for the legal costs and the publicity this case has commanded?

Being confident about managing diversity and discrimination in the workplace means being able to answer “yes” to the questions above. If you want to change the “no” or “not sure” to a “yes”, then making equal opportunities and discrimination a priority for the business will be a good place to start.

FG Solicitors’ legal team are experts in helping its clients address its employment law and people management issues, so that they have greater certainty over their financial and operational outcomes.

If you  want to your answers to change from “no” to “yes” by updating your policies and procedures, having support with a difficult grievance about discrimination or refreshing your training,  please feel free to call us on 0808 172 9322 for a no obligation discussion.

WELCOME TO A MORE CONFIDENT FUTURE!

This update is for general guidance only and advice should be taken in relation to a particular set of circumstances.

Tags:

Family Friendly Rights

APRIL WILL BE A TIME FOR FAMILIES …

April will hopefully be a time for families on a social level given the relaxation of the lockdown and the hope the vaccine has brought.

A family friendly workplace has been and remains on the political agenda. 2020 saw the introduction of parental bereavement leave and family related pay increases have come into play this month. Beyond April, there is likely to be a raft of changes arising from proposals aimed at benefiting the working family.

Increase in pay rates from 04 April 2021

The previous statutory rate of pay of £151.20 per week for the various types of family friendly leave has increased to £151.97 per week from 04 April 2021. The type of leave taken will determine for how long the payment will be made.

Maternity, paternity, shared parental, adoption and parental bereavement leave will all benefit from the pay increase. Other types of leave, such as dependent care leave and parental leave are unaffected and remain unpaid.

Ensuring there is a clear policy on parental bereavement leave and pay

Given the distraction that the current pandemic has caused for all businesses, the new right to parental bereavement leave may well have been overlooked in 2020.

In the sad event that an employee experiences the death of a child under 18 or a stillbirth on or after 6 April 2020, they are entitled to take parental bereavement leave. This is a Day 1 right for employees, which can last one week, two continuous weeks, or two separate weeks, starting on any day of the week. The leave may be used at any time in the first 56 weeks after death or stillbirth of the child.

Giving the unquestionable impact such an event will have on a parent, it is important that employers ensure there is a clear policy on these rights. The message to your employees is that they are valued and you will be there to support them through such a difficult time. From a management perspective, the policy will ensure managers are aware of the business’ legal obligations, which will help to minimise legal claims.

What might the future workplace look like for working families?

There are a number of key changes that have been talked about:

  • An extension to redundancy protection to prevent pregnancy/maternity discrimination. The proposal is to prohibit redundancy during both pregnancy and maternity leave and for six months following the return to work. The protection would start from when the employee announces her pregnancy. The maximum period could be nearly 18 months. Currently, an individual on maternity leave has the right to be given suitable alternative employment if their role is redundant.
  • The introduction of new rights for workers with caring responsibilities to take one week’s unpaid leave. This would supplement any other forms of leave such as parental leave of 18 weeks to be taken up to the child’s 18th birthday and dependent care leave, which is usually used for a short period to attend to a family emergency.
  • Allowing parents to take extended leave for neonatal care to care for premature or sick babies.
  • Making flexible working the default position unless there is a good reason not to. This may mean jobs will need to be advertised as being capable of being worked flexibly. This is to address the fact that very few jobs are currently advertised as being open to being undertaken flexibly. Currently, employees have to make a formal application for flexible working and employers have the opportunity to reject the application for business reasons.

What next for employers? 

  • If not already done so, employers need to ensure that their policy on parental bereavement leave is clear, giving consideration to whether or not greater support than the statutory minimum will be offered. Managers need to be aware of the new rights to ensure that there can be no misunderstanding. Employees are protected from dismissal or suffering a detriment for exercising their right to this type of leave. An employment tribunal is going to come down hard on an employer who gets these rights wrong.
  • Employers need to ensure the slight increase in pay rates are now applied.
  • To manage any legal risk, policies and practices about family friendly rights should be reviewed to ensure that they are legally compliant, and management understands what the various rights and obligations entail. Complaints under the family friendly legislation often involve complaints of detrimental treatment and discrimination, all of which can be costly to resolve and in many cases could have been avoid.

FG Solicitors’ legal team are experts in helping its clients address its employment law and people management issues, so that they have greater certainty over their financial and operational outcomes.

If you would like to discuss any issues arising from family friendly leave or you need to overhaul your family-friendly policies, please feel free to call us on 0808 172 9322 for a no obligation discussion.

WELCOME TO A MORE CONFIDENT FUTURE!

This update is for general guidance only and advice should be taken in relation to a particular set of circumstances.

POST COVID-19

Employers, this does not have to be you…

Do any of these sound familiar?

• “When is it safe for employees to return to the office?”

• “What steps should I take before they return?”

• “Do I have to say yes if my employees ask to work from home?”

• “Can I insist that employees take a covid test before they return to the office?”

• “What can I do if they refuse?”

• “Do I have the right to ask about vaccinations?”

• “Will social distancing still apply to employees when they return after April?”

• “What do I do about employees who are afraid to return to the office environment?”

• “Do I have to permit employees to work from home?”

• “If employees have vulnerable relatives who they live with, should they be treated as special cases?”

• “Can I put employees on furlough?”

• “Do I have to pay full pay to employees on furlough?”

• “Can I consider redundancies whilst employees are on furlough?”

• “Do I need to consult with them?”

• “Can I use furlough pay for any redundancy payments and/or notice payments?”

• “What safeguards should I put in place for employees with mental health issues that blame furlough or that have arisen from the pandemic?”

Make sure you are prepared for the end of lockdown.

FG Solicitors offer a proactive and practical approach, providing employers with the confidence to tackle employment issues.

To find out what you CAN do please contact FG Solicitors on 0808 172 9322 for a no obligation discussion.

WELCOME TO A MORE CONFIDENT FUTURE!

 

This update is for general guidance only and advice should be taken in relation to a particular set of circumstances.