Call us on:  0808 172 93 22 | Offices: London - Northampton

NEWS

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.

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.

ADVANCED WARNING…..NATIONAL MINIMUM WAGE INCREASES

It’s that time of year again when employers have to start budgeting for an increase in the National Minimum Wage (“NMW”).

Younger age group to benefit!

“Those aged 23 and 24 years are set to receive an 8.7% pay rise,
which will need to be accommodated in the wage bill”.

The Government has decided to lower the age bracket for those entitled to the National Living Wage from 25 to 23. In real terms this gives rise to a £0.71 per hour increase for 23 to 24 year olds. Based on a 40-hour working week this increase amounts to an annual gross increase of just under £1,500.00.

Hourly wage change!

The following changes to the NMW hourly rate will take effect from 01 April 2021:

Getting it wrong!

“It pays to get it right. HMRC will take action;
and will publicly name and shame employers in breach”.

The NMW is enforced by HMRC, which can include service of notices of underpayments and penalties, “naming and shaming”, recovery of underpayments through litigation and criminal prosecutions.

Workers can bring claims for unlawful deduction of wages in the employment tribunal.

Is your business compliant?

To ensure your business is compliant there needs to be a thorough understanding as to what constitutes working time for the purpose of establishing if your business is paying its workers the NMW.

Time spent actually working is clearly identifiable but what about time spent travelling or “on-call”? Do you understand the legal position and how to approach these issues?

FGS are experts in helping its clients safeguard their business from legal, financial and reputation risks so they have greater certainty over their commercial outcomes.

If you require further guidance about the impact the above changes will have on your business or NMW compliance, please feel free to call us on 0808 172 9322 for a no obligation discussion.

WELCOME TO A MORE CONFIDENT FUTURE!

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

Our Services

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

BUILDING A SHIELD AGAINST NON-COMPETE

Non-compete clauses may be banned

In our recent article regarding the Department for Business, Energy and Industrial Strategy’s consultation on reforming the use of non-compete clauses, consideration was given to what may lie ahead for employers including the possibility of an outright ban on employers preventing employees from working for competitors.

Consultation has now closed but it will be some time before we know whether legislation will be introduced to limit or ban the use of non-compete restrictions and whether there will be a call for the removal of other restrictions from contracts of employment.
Given the agenda is promoting a shift away from employers being able to protect their businesses towards creating more opportunities in the labour market, employers will need to consider how they can restock their armoury to protect against competitive activities when the changes arrive.

Proactive risk management

In assessing what might work for your business, the starting point should be to identify where the risks are and what impact they would have on the commercial and financial aspects of the business if they became a reality.
Suggested areas for review would be customer connections, the workforce, key personnel and those that are highly skilled and your confidential information. The question to consider is what damage would arise if any of these key components of your business ended up in the hands of your competitors?

In the absence of any legislation or otherwise prohibiting the use of non-compete clauses and other post-termination restrictions, there is no reason why employers cannot for the time being remain faithful to the practice of having restrictions in the contracts of employment. However, any covenants in place should be reviewed to identify if they are fit for purpose and would withstand the scrutiny of the courts. A one size fits all approach to restrictions in contracts of employment is never a good place to start. From a risk management perspective, there is little point in having restrictions in place if they are badly worded or have no relevance to the role the employee is currently undertaking.

Apart from non-compete clauses what other options are there?

There are other ways of protecting the business’ interests and preventing competition that do not involve direct post-termination restrictions. Some possible options are considered below:

• Consider strategies for staff engagement and retention.
Staff who feel engaged and have career development opportunities are more likely to stay with you. This can decrease the risk of the business being exposed to competitive activities. Employee questionnaires are a good way of obtaining staff feedback about what they value about working for you and areas for improvement, which will assist to inform your strategies.

• Understand what other contractual provisions may have value.
Employees who are on garden leave during their notice period are out of your business, which allows for time to manage and strength client relations. By the end of the garden leave period, confidential information may have lost its commercial sensitivity. Garden leave clauses can be used in conjunction with other restrictions. Setting off a period of garden leave against the duration of a direct post-termination restriction can result in the court finding the restrictions is a reasonable restraint of trade.

A properly drafted confidentiality clause that clearly sets out what confidential information and trade secrets are in the context of the business and employee’s work is a powerful tool against competition. Without such a clause, an employer can only rely upon the implied obligation to protect trade secrets following an employee’s departure, which for many businesses does not go nearly far enough to protect against the sort of mischief the misuse of for example, pricing lists or a tender submission can create if in the hands of a competitor.

• Do not give an employee a good reason to challenge the remaining clauses.
If the contract of employment is breached by the employer, then the contract comes to an end. This means that the employee’s continuing obligations after their departure will no longer be valid. Employers can minimise the risk of this scenario as follows:

o If dismissal is on the cards, ensure that the employment ends in accordance with the contractual terms.

o Avoid situations where the employee may argue that there has been a fundamental breach of their contract entitling them to resign and treat themselves as dismissed. For example, not addressing a grievance properly.

o Watch out for the “tactical” employee who knows they are unlikely to be any continuing obligations if the above scenario arises. A job offer from a competitor or a desire to set up in competition on their own account may just lead to an employee attempting to construct a scenario, which would allow them argue the contract has been breached and they are not bound by any post-termination restrictions.

• Introduce rights or obligations that deter employees from leaving.

There is a lot of scope here with the deterrent being that the employee is likely to lose out on cash or shares if they leave. For example, a long-term incentive plan may have a forfeiture clause triggered on the employee’s departure, a share plan may have its own restrictive covenants, a bonus payment may be dependent on being in employment on a specified date or subsidised training costs may become repayable on exit. While these types or arrangement have their own advantages in the war against competition, employers need to ensure that if challenged they would be able to demonstrate they are not an unreasonable restraint of trade or in the case of clawing back any training costs, the amount recovered would not be found to be a penalty.

Even if employers will not have as many options available to them in the battle against competition in the future, a broader more bespoke approach which reflects the nature of the business and its specific risks may achieve a similar outcome to that which can be achieved solely with post-termination restrictions.

FGS’ legal team are experts in helping its clients to safeguard their businesses, so that they have a greater certainty over their financial and operational outcomes.

If you require further advice about protecting your business from ex-employees’ new work activities or strategies to retain your talent, please feel free to call us on 0808 172 9322 for a no obligation discussion.

For further details about all our commercial legal services for businesses, please click here. 👇

Our Services

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

Call us on:  0808 172 93 22

NEWS

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.

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.

ADVANCED WARNING…..NATIONAL MINIMUM WAGE INCREASES

It’s that time of year again when employers have to start budgeting for an increase in the National Minimum Wage (“NMW”).

Younger age group to benefit!

“Those aged 23 and 24 years are set to receive an 8.7% pay rise,
which will need to be accommodated in the wage bill”.

The Government has decided to lower the age bracket for those entitled to the National Living Wage from 25 to 23. In real terms this gives rise to a £0.71 per hour increase for 23 to 24 year olds. Based on a 40-hour working week this increase amounts to an annual gross increase of just under £1,500.00.

Hourly wage change!

The following changes to the NMW hourly rate will take effect from 01 April 2021:

Getting it wrong!

“It pays to get it right. HMRC will take action;
and will publicly name and shame employers in breach”.

The NMW is enforced by HMRC, which can include service of notices of underpayments and penalties, “naming and shaming”, recovery of underpayments through litigation and criminal prosecutions.

Workers can bring claims for unlawful deduction of wages in the employment tribunal.

Is your business compliant?

To ensure your business is compliant there needs to be a thorough understanding as to what constitutes working time for the purpose of establishing if your business is paying its workers the NMW.

Time spent actually working is clearly identifiable but what about time spent travelling or “on-call”? Do you understand the legal position and how to approach these issues?

FGS are experts in helping its clients safeguard their business from legal, financial and reputation risks so they have greater certainty over their commercial outcomes.

If you require further guidance about the impact the above changes will have on your business or NMW compliance, please feel free to call us on 0808 172 9322 for a no obligation discussion.

WELCOME TO A MORE CONFIDENT FUTURE!

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

BUILDING A SHIELD AGAINST NON-COMPETE

Non-compete clauses may be banned

In our recent article regarding the Department for Business, Energy and Industrial Strategy’s consultation on reforming the use of non-compete clauses, consideration was given to what may lie ahead for employers including the possibility of an outright ban on employers preventing employees from working for competitors.

Consultation has now closed but it will be some time before we know whether legislation will be introduced to limit or ban the use of non-compete restrictions and whether there will be a call for the removal of other restrictions from contracts of employment.
Given the agenda is promoting a shift away from employers being able to protect their businesses towards creating more opportunities in the labour market, employers will need to consider how they can restock their armoury to protect against competitive activities when the changes arrive.

Proactive risk management

In assessing what might work for your business, the starting point should be to identify where the risks are and what impact they would have on the commercial and financial aspects of the business if they became a reality.
Suggested areas for review would be customer connections, the workforce, key personnel and those that are highly skilled and your confidential information. The question to consider is what damage would arise if any of these key components of your business ended up in the hands of your competitors?

In the absence of any legislation or otherwise prohibiting the use of non-compete clauses and other post-termination restrictions, there is no reason why employers cannot for the time being remain faithful to the practice of having restrictions in the contracts of employment. However, any covenants in place should be reviewed to identify if they are fit for purpose and would withstand the scrutiny of the courts. A one size fits all approach to restrictions in contracts of employment is never a good place to start. From a risk management perspective, there is little point in having restrictions in place if they are badly worded or have no relevance to the role the employee is currently undertaking.

Apart from non-compete clauses what other options are there?

There are other ways of protecting the business’ interests and preventing competition that do not involve direct post-termination restrictions. Some possible options are considered below:

• Consider strategies for staff engagement and retention.
Staff who feel engaged and have career development opportunities are more likely to stay with you. This can decrease the risk of the business being exposed to competitive activities. Employee questionnaires are a good way of obtaining staff feedback about what they value about working for you and areas for improvement, which will assist to inform your strategies.

• Understand what other contractual provisions may have value.
Employees who are on garden leave during their notice period are out of your business, which allows for time to manage and strength client relations. By the end of the garden leave period, confidential information may have lost its commercial sensitivity. Garden leave clauses can be used in conjunction with other restrictions. Setting off a period of garden leave against the duration of a direct post-termination restriction can result in the court finding the restrictions is a reasonable restraint of trade.

A properly drafted confidentiality clause that clearly sets out what confidential information and trade secrets are in the context of the business and employee’s work is a powerful tool against competition. Without such a clause, an employer can only rely upon the implied obligation to protect trade secrets following an employee’s departure, which for many businesses does not go nearly far enough to protect against the sort of mischief the misuse of for example, pricing lists or a tender submission can create if in the hands of a competitor.

• Do not give an employee a good reason to challenge the remaining clauses.
If the contract of employment is breached by the employer, then the contract comes to an end. This means that the employee’s continuing obligations after their departure will no longer be valid. Employers can minimise the risk of this scenario as follows:

o If dismissal is on the cards, ensure that the employment ends in accordance with the contractual terms.

o Avoid situations where the employee may argue that there has been a fundamental breach of their contract entitling them to resign and treat themselves as dismissed. For example, not addressing a grievance properly.

o Watch out for the “tactical” employee who knows they are unlikely to be any continuing obligations if the above scenario arises. A job offer from a competitor or a desire to set up in competition on their own account may just lead to an employee attempting to construct a scenario, which would allow them argue the contract has been breached and they are not bound by any post-termination restrictions.

• Introduce rights or obligations that deter employees from leaving.

There is a lot of scope here with the deterrent being that the employee is likely to lose out on cash or shares if they leave. For example, a long-term incentive plan may have a forfeiture clause triggered on the employee’s departure, a share plan may have its own restrictive covenants, a bonus payment may be dependent on being in employment on a specified date or subsidised training costs may become repayable on exit. While these types or arrangement have their own advantages in the war against competition, employers need to ensure that if challenged they would be able to demonstrate they are not an unreasonable restraint of trade or in the case of clawing back any training costs, the amount recovered would not be found to be a penalty.

Even if employers will not have as many options available to them in the battle against competition in the future, a broader more bespoke approach which reflects the nature of the business and its specific risks may achieve a similar outcome to that which can be achieved solely with post-termination restrictions.

FGS’ legal team are experts in helping its clients to safeguard their businesses, so that they have a greater certainty over their financial and operational outcomes.

If you require further advice about protecting your business from ex-employees’ new work activities or strategies to retain your talent, please feel free to call us on 0808 172 9322 for a no obligation discussion.

For further details about all our commercial legal services for businesses, please click here. 👇

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