As an employer, do any of these issues sound familiar?
- “You should furlough me, that’s my right!”
- “The government says I must be allowed to work from home!”
- “I don’t feel safe coming into work!”
- “I cannot come to work as I have to look after the kids as the schools are closed!”
- “You can’t force me to come to work!”
Confused about your employees’ rights? Concerned about giving the wrong answer and the possible legal risks? Frustrated that these issues are getting in the way of you running your business?
If so, there is a solution!
FG Solicitors offers a proactive and practical approach, providing employers with confidence when it comes to employment law particularly in these challenging times.
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!
… What employers can expect
After a one-year transition period, during which the UK continued to observe the legislative status quo, the country left the EU on 31 December 2021. Can we now expect a huge conflagration of statutes which emanated from Brussels? The answer in the short term, and almost in the longer term as well, is no. To understand why that should be, it is necessary to go back to basics.
It is important to remember that since 1 January 1973, when the UK joined the EU, not all of our laws have had their origin in the EU. For example, the Employment Rights Act of 1996 is a prime example of domestic legislation which came onto the statute books without reference to or input from the EU. Although changes could be made to such statutes, it would be through the usual domestic legislative process and would depend on the agenda of the Government of the day.
Another point to remember is that it would be a brave Government indeed which sought to remove what are considered in this country to be fundamental employment rights such as the right not to be unfairly dismissed or the right to refuse to work in unsafe conditions. Similarly, it is impossible to believe that any political party of whatever persuasion would seek to remove or reduce the protection against discrimination on the grounds of, say, sex, race or religion or any of the other protected characteristics.
… UK has agreed to maintain all applicable EU Law!
What, then, is the position in respect of those laws which came via EU Directives which were subsequently transposed into domestic law? Can they now simply be expurgated from the UK statute book? Again, at the risk of being negative, the answer is no. Instead, from 31 December 2020, the UK has agreed to maintain all applicable EU law (the so-called “retained law”) until such time as the UK government decides, via normal legislative processes, to repeal or amend them. Such changes will be made without reference to the EU and will not be subject to the jurisdiction of the European Court of Justice (“ECJ”).
… Any legal changes will need to be in line with the Withdrawal Agreement
There is one caveat however: any amendment or appeal of the retained law which has a material impact on trade or investment may be a breach of the terms of the Withdrawal Agreement. This condition reflects the EU’s demand to have a “level playing field”. In theory any such changes could be met with “balancing measures” by the EU which could be, for example, the imposition of tariffs on certain goods provided always it could be proven that any such changes did have an actual adverse effect on trade or investment. No doubt this could prove to be a fertile source of future disagreement unless both sides can reach a peaceful way of living.
… Key areas identified for change
So, having reviewed the basics, what exactly can we expect to see in the post-Brexit world of employment? There are a number of key areas that are the most likely candidates for change as, for the most part, they have been unpopular with employers, employees or trade unions or they were simply not a comfortable fit with the way workplace relations and legal requirements have developed in the UK. Not all of them came about as a result of EU directives but all are ripe for change and are discussed below.
… Discrimination rights to remain but compensation may be limited
As stated above, none of the basic entitlements in this area will change however there may well be a cap placed on financial awards in successful discrimination claims which are currently uncapped. Such a change would bring discrimination awards more into line with those where unfair dismissal has been found. In that case, the maximum compensation award for financial loss is capped at the lower of £88, 519 or 52 weeks’ pay. If discrimination awards were similarly capped there would still be the possibility of an extra award in respect of injury to feelings which are not awarded in cases of unfair dismissal. Therefore, despite any cap which might be applied to the financial award, the possibility of an injury to feelings award of between £900 and £45,000 still make discrimination cases potentially very costly for the employer.
… Trade union law to be scrutinised potentially leading to more positive outcomes for employees
The current position is that where a company does not recognise a trade union for bargaining purposes, it can be forced to do so in certain circumstances. The Central Arbitration Committee (the “CAC”) can order a company to recognise a trade union where it is satisfied that a majority of the workforce in the bargaining unit belong to that union. Where the position is not that clear, the CAC can arrange for a secret ballot of the workforce in that unit. If trade union recognition is supported by a majority of the workers voting and by at least of 40% of the total bargaining unit (whether they voted or not) recognition will be declared by the CAC. This is a low bar to reach and has been unpopular with companies who prefer to deal with their workforce directly.
In addition, trade union membership has fallen dramatically since its high of 13.2 million in 1979 to 6.35 million in 2019 (the last complete year for which figures are available). Put simply, the trade unions are not the force they were 30 years ago in most sectors particularly in the private sector and among younger employees. The ballot requirements could be increased to make forced trade union recognition more difficult.
Likewise, the right to strike may be subject to further tightening up particularly in the transport sector where strikes in 2019 and 2020 led to widespread hardship and financial losses in the sector. Such strikes, even where legal, have a paralysing effect on a crucial sector of the economy. As the country emerges from the COVID 19 crisis, the need for a dependable transport sector to enable economic recovery will be even more important.
…Working Time Regulations could evolve to suit UK labour practices
These Regulations which came into the UK statute book in 1998 were born in the EU and have, in many respects, fitted uncomfortably in the context of UK labour practices. For example, the Regulations established the requirements for the average working week to be limited to 48 hours. The UK was the only member state which failed to adopt that requirement by allowing employees to opt out. As a result it has become commonplace to offer, indeed encourage, employees to sign opt-out agreements agreeing to work those hours necessary for the performance of their job. Some sectors would have suffered more than others had they adhered to the 48 hours limit. For example, doctors in training found that that rule not only limited their working hours but, as a result, their clinical development as well.
Other provisions of these Regulations have also proven to be difficult for employers, lawyers and even judges to understand and those are the ones relating to holiday, specifically:
• the accrual of holiday during long-term sick leave;
• the right to carry over untaken holiday from one holiday year to the next and
• the calculation of holiday pay which under the Regulations includes not only basic salary or wages but also such things as overtime, commission, tips and other benefits. The most likely change here is that in the future holiday pay will be based on basic salary only.
• a new determination of what is “working time” will most likely exclude travel to and from work for peripatetic employees who travel from place to place during their working day. Travel to their first place and work and from their last place of work would not count as working time.
…Transfers of Undertakings Regulations (“TUPE”) may be due for an overhaul
Yet again, the application of these EU-born regulations has given rise to much litigation some of which has made them even more difficult to understand and apply. A prime example of this has been the limitation of the purchasing company’s (“the transferee”) ability to harmonize the terms and conditions of the transferring employees with those of the company’s existing workforce. The only lawful way to do this has been for the transferee to show that the reason for changing terms and conditions of the workforce in order to harmonise them is an “economic, technical or organisational reason entailing a change in the workforce.” Employment solicitors and judges have spent many hours seeking to determine what such reasons might include. It seems likely that changes to these regulations will facilitate such harmonisation.
The rules on collective consultation in the TUPE context are also ripe for change. The current position is that if there is even one transferring employee, collective consultation must take place. One proposed change would be to align the TUPE consultation requirements with those which apply where 20 or more employees at one establishment are made redundant.
…Agency Workers’ rights could be no more
Another very unpopular piece of EU legislation is the Agency Workers Regulations of 2010. Essentially, these grant agency workers who have worked at least 12 complete weeks for the same business the entitlement to the same terms and conditions as that business’s permanent employees including the same opportunities for promotion and training. It is likely that this legislation will be repealed in its entirety and it is difficult to see how doing so would have a detrimental effect on trade and investment with the EU.
…UK Data Protection will have to withstand EU scrutiny
General data protection principles enshrining the rights of the data subject and the duties of the data holder will remain unchanged. However, new rules governing the transfer of data to non-EEU countries may be required. The EEU countries are the 27 member states of the EU plus Iceland, Liechtenstein and Norway. The UK, not being a member of the EEU, will have to ensure that adequate measures are in place to protect data flowing from the UK to these countries. The existing data protection regime is currently being scrutinised by the European Commission which will determine whether the current UK regime offers sufficient protection.
…Some EU law in the pipeline will still be adopted by the UK
So, those are some areas where the UK will almost certainly diverge from the EU in the realm of labour law. There are, however, other areas where the Government has indicated it would adopt all or parts of certain EU directives which are in the pipeline which are discussed below.
…Protection for UK whistle-blowers set to improve
A new Directive, due to come into force in the EU in December 2021 would require the employer to inform the whistle-blower of any steps it has taken or proposes to take as a result of the information provided by the whistle-blower. In addition, equivalent protection to that afforded to employees who blow the whistle would be extended to self-employed freelancers and shareholders.
…Transparent and Predictable Working Conditions Directive will require further action to prevent the abuse of zero hours contracts
This Directive is due to come onto the EU statute book in April 2022. The UK is already ahead in this area as not only employees but also workers are entitled to written terms and conditions of employment setting out such basic information as the names of the parties, salary and other benefits, working hours, overtime arrangements, holidays etc. However, the Directive would also require a more “stable” and “predictable” contract which would, for example, prevent the abuse of zero hours contracts, require the employer to give reasonable notice of any shift change and to pay compensation to the employee where short notice has been given of a shift cancellation. It would also ban long probationary periods. Although in reality, in this country every employee could be said to be on a two-year probationary period in the sense that an unfair dismissal claim cannot be brought by anyone with less than that length of service.
…Work-Life Balance for Parents and Carers Directive will shore up working parent’s rights
This Directive was passed by the European Parliament on 1 August 2019 and must be adopted by all member states by 1 August 2022. In many ways, UK legislation already provides several of the rights enshrined in the Directive such as paid paternity leave, shared parental leave and rights for carers. UK employees are also entitled in certain defined circumstances to request flexible working, to take time off for family emergencies and to take unpaid parental leave to care for a child under the age of 18. Carers are also protected from discrimination or harassment as a result of their caring responsibilities.
Therefore, only a few changes are envisaged in the area of family-friendly policies although one such change might be the removal of the length of service requirement for an employee wishing to take paternity leave. Currently, the employee must have completed 26 weeks of continuous service before he is entitled to such leave.
… Will the UK be truly free from EU Employment Law?
Overall, it is likely that the Government will proceed with caution in introducing changes in employment law. Although the freedom for the UK to make its own laws was argued to be one of the main advantages of Brexit, nevertheless the UK will need to remain a viable trading partner with the EU. In addition, measures to defeat COVID19 will dominate the legislative agenda for the foreseeable future.FG Solicitors is an expert in helping its clients navigate the everchanging employment law and people management landscape to provide greater certainty over their financial and operational outcomes. Please watch this space for further updates from the employment specialists at FG Solicitors. If you require further advice about the above, 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. 👇
This update is for general guidance only and advice should be taken in relation to a particular set of circumstances.
“While workplace wellbeing has been the focus for some time, there is increasing concern about the impact the current pandemic is having on employees’ mental health and the long-term socio-economic consequences.”
Even before the pandemic commentators were annually referencing the millions of days lost due to work-related stress and the need for action. By the time the pandemic hit us many employers already recognised that they could no longer afford to ignore the problem and mental wellbeing needed to be treated as a high priority. The pandemic has only served to magnify the problem as it has created new triggers that need to be assessed and managed.
Understanding your obligations
Unfortunately, the law on stress is not set out in one place and is piecemeal, which means it is often difficult for employers to fully appreciate the scope of their obligations. Duties are set out in various pieces of legislation, including the Health and Safety at Work etc Act 1974, the Working Time Regulations 1998 and the Equality Act 2010. A further dimension is added as employers also have implied duties, including for example, the obligation to provide a safe system of work, which encompasses protecting employees’ physical and mental well-being. Taking these duties as a whole, employers must ensure that their staff are not exposed to excessive levels of stress when at work.
What issues should we be aware of?
A nod to these legal duties in terms of working practices may minimise the risk of a legal claim but may not provide the support staff need.
When tackling the issue prior to the pandemic, management would be faced with stress triggers such as excessive workloads, long hours, bullying and harassment. While these triggers remain, an employer’s need to respond to operational and financial challenges has meant different challenges for its employees too. The most common concerns currently being raised are increased workloads with fewer resources, having to adapt to new working patterns or types of work with little support or time to adjust, home working which gives rise to feelings of isolation or the fear of being made redundant.
The impact of ignoring these factors is two-fold. From a social perspective, individuals will suffer from ill health. From a financial and operational perspective staff retention, engagement, attendance and productivity are all likely to be impacted in a negative way.
Taking small steps can make all the difference
“A small shift in approach can make all the difference to the lives of those who are suffering from stress. From a business perspective there will be better staff retention and engagement, improved attendance levels and increased productivity.”
Given the scale of the problem, employers need to act. A shift in approach does not need to involve a large amount of time and resources. As a starting point, there are some simple but effective strategies that can be adopted:
- Assess the main risks and possible areas for concern on a regular basis.
- Introduce clear wellbeing polices which create a supportive working culture.
- Train managers and supervisors to spot the warning signs and intervene early.
- Encourage more conversations about stress. Talking will help you to understand the causes and therefore put in place the right support when it is most needed.
- Signpost employees to the support that is available, including expert resources if professional help is needed.
While these simple steps may not provide the total solution an employer who is prepared to recognise the issue and work with their employees is likely to experience lower absence rates and increased staff morale.
FG Solicitors is an expert in helping its clients address its employment law and people management issues that the current pandemic has raised so they have greater certainty over their financial and operational outcomes.
If you would like to discuss how to implement a workplace stress management plan for your organisation and understand the benefits of doing so, please feel free to call us on 0808 172 9322 for a no obligation discussion.
For further details about the legal services and assistance we provide to businesses, please click here.
This publication is for general guidance only. Advice should be taken in relation to a particular set of circumstances.
“While the impact of the current pandemic has left many businesses feeling uncertain about their future, from an operational and financial perspective it is certain that there is more opportunity for legal risk.”
From an operational and financial perspective, risk and uncertainty are not the same thing. Uncertainty arises when we are unsure about future outcomes usually due to a lack of knowledge or insight. Businesses that operate in a climate of uncertainty are likely to find over time that operational and financial objectives will be severely impacted and the outcomes may be unpredictable. On the other hand, risk focuses on the good or bad outcomes of our actions or inactivity which means that the outcomes can be managed and controlled to achieve better results.
Replace uncertainty with risk management
There are many different types of threats which could damage your business from financial uncertainty created by the economic outlook, an IT security attack which could take the business down for days to an expensive and time consuming legal challenge by a client who is unhappy with a product or service or an employment tribunal claim by an employee who alleges they have been harassed by a colleague.
Awareness of the threats means a business is in a stronger position to respond to the negative impact the business may experience.
“There are five basic elements to a successful risk management process that will help develop a plan to mitigate against your biggest threats.”
In very simple terms, risk management is the process of:
Instead of having no idea whether your business objectives can be achieved or what might get in the way of their delivery, a systematic approach to risk management based on these five simple steps forces you to face up to the risks and enables you to make the right decision to make your business more resilient.
Prioritise legal risk
Any business that has not come out the right side of a legal dispute will want to avoid being in such a situation in the future. Therefore, any risk management plan should incorporate a section which considers legal risk.
“The nature of the business and the industry sector will determine those areas that create the most threat.”
Common legal risks are likely to arise from factors such as contractual relationships with third parties, changes in the law, technology and data security, intellectual property, competitors and employees.
Have you for example examined the potential legal risks that are involved in employing people in your business or are you prepared to leave things to chance? A workplace that is reliant upon out of date contracts of employment, has no clear policies and procedures and is not operating in line with current employment laws and regulations is likely to be faced with outcomes that are unpredictable when it comes to legal disputes in the employment tribunal.
However, the five-step approach to risk management will assist in identifying and managing legal risks with the aim of preventing these risks becoming costly legal liabilities and creating more certainty about operational and financial outcomes. This will mean having legally compliant contracts of employment and up to date policies and procedures underpinned by appropriate legal compliance training for managers and supervisors.
A more confident future
Overall, businesses that prefer to operate in a culture where it is unsure about what happens next will have an uncertain future. Those who want a more confident future will have a strong risk management culture that recognises the need to identify and manage legal risks.
FG Solicitors are experts in helping its clients safeguard their businesses from legal risks, so they have greater certainty over their financial and operational outcomes.
If you require further guidance on how to manage legal risks within your business, please feel free to call us on 0808 172 9322 for a no obligation discussion.
For further details about the legal services and assistance we provide to businesses, please click here.
This publication is for general guidance only. Advice should be taken in relation to a particular set of circumstances.
Does TUPE apply?
At the outset, the business should determine whether TUPE applies. Wherever possible this should be agreed with the other party before the business transfers or the contract moves to a different service provider. The risk arises when the parties cannot agree.
Failing to comply with consultation obligations
This is an issue where there are 10 or more employees in a non-unionised business/organisation, where there are no existing employee representatives who have been elected for the purpose of the transfer. In such instances the business/ organisation must arrange for the election of employee representatives – the regulations governing these elections, as well as the functions and responsibilities of those representatives are detailed, and financial penalties will be incurred if the regulations are breached. Both the transferor and the transferee may be liable for these penalties.
Identifying those who are to transfer and those who are to remain
This is an exercise that should be dealt with at an early stage of the planning process and should be able to withstand close scrutiny. Historically, this is an area that has given rise to a substantial raft of case law especially in specific problem areas, for example, where there are employees absent from the business due to long-term sick leave or furlough leave prior to the transfer taking place.
Dealing with the restructuring of the workforce post transfer
This is a risk area for both the transferor and the transferee. Restructuring which results in changes in headcount needs to be carefully handled in the light of the added protections offered by the TUPE regulations.
Ensuring pension rights are established
This is a particular issue for the transferee, especially when on-boarding staff who have previously enjoyed generous pension schemes with the transferor – a key example of this being on the award of a contract by a public sector organisation.
Changing terms and conditions post transfer
Identifying when change is permitted and the mechanism for change in terms and conditions of employment.
Relocating staff post transfer
This is now allowed but there are processes to be followed which can prove costly if breached.
FG Solicitors are experts in all areas of Employment Law and HR. Feel free to call us on 0808 1729 322 for a no obligation discussions.
This information is for general guidance only and does not constitute definite advice.