Category Archives: Employees

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. 👇

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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.

EMPLOYERS NEED TO MIND THE GAP!

Mental health has moved higher up the workplace agenda when it comes to people management over the last few years with even more focus on the support that workers with mental health conditions may need.

The current pandemic has identified how vulnerable people with mental health problems are when it comes to their jobs and money; there are still many inequalities in the workplace then comparing this group with workers without mental health problems.

How have these inequalities been identified?

The Mental Health and Income Commission’s recent report has highlighted that there is still some way to go to address the differences in treatment between workers with mental health problems and those without mental health problems:

  • A mental health income gap of £8,400 per annum.

Lower employment rates and weaker wages are the main causes of the pay difference. Those who suffer from anxiety and depression are likely to experience a pay gap of more than £8,400 per annum.

  • One in five people with mental health problems in the UK have faced discrimination at work.

The most common types of discrimination have been cited as being passed over for promotion or being made redundant. Seven per cent of working age people with mental health problems have reported being made redundant compared with four per cent without mental health concerns.

  • Three in ten people with mental health problems experienced an income reduction during the pandemic.

Many of these individuals have gone without daily living essentials such as food and heating to address the loss of pay.

  • Only 15% of people with mental health conditions have ever asked for reasonable adjustments.

Of those who had made such a request, over 66% of requests for reasonable adjustments were reported as having not been met or only partly met.

Wide ranging recommendations have been made for employers

The report discusses the improvements that will help to reduce the pay gap and improve working conditions. Employers can make a difference by:

  • Providing mental health training

The training would ensure that line managers are able to offer support when needed.  The aim would be to ensure that the working relationship becomes fairer.

If managers are better equipped, then there is likely to be an overall improvement in the quality of management, leading to lower absences rates and increased productivity

  • Offering roles flexibly

Flexibly working should be on offer to help new and existing employees to work in a way that is suited to their needs. Larger employers would be required to publish the number of applications received and the number of refusals.

Currently, only employees with more than 26 weeks’ service can apply for flexible working. However, there is some indication that in the future employers will be required to make flexible working the default position. The onus will be on the employer to show the role cannot be done on a flexible basis. The Commission suggests that this approach should be similar to the requirement under the Equality Act 2010 which creates a duty to consider reasonable adjustments to remove workplace disadvantages faced by people with physical and mental impairments

  • Developing a list of reasonable adjustments for employees

The aim of reasonable adjustments for individuals with mental health problems would allow them to remain in work. While many individuals with mental health problems have a legal right to request reasonable adjustments to their duties or workspace, the statistics show that many are not prepared to ask for assistance. This is the case even though the Equality Act 2010 provides protection for those individuals who have mental impairment that falls within the definition of a disability.  Individuals who have a disability are protected from discrimination and employers are under a duty to make reasonable adjustments.

  • Providing a mentoring and support network

Such a network would enable individuals to remain in work and progress.  The aim is to protect an individual’s income

  • Introducing a legal pay gap reporting requirement.

Larger employers would be placed under a legal obligation to report on pay to identify any inequalities between individuals with mental health conditions and those that do not suffer from them. Currently, the only legal pay reporting requirements relate to gender and apply to employers with a headcount of 250 people or more.

Employers must comply with the Equality Act 2010

The Commission’s report addresses some complex financial and social issues but the outcome is clear, those with mental health problems are not being treated fairly in the workplace.

While many employers are trying to do the right thing socially and by complying with the Equality Act 2010 to ensure that there is no disability discrimination and adjustments are made when reasonable, this is still not enough.

Employers particularly those with 250 employees or more could well feel the impact of this report in the future. The starting point is likely to be regulations which will require more transparency about pay; the objective will be to reduce the pay gap and address other inequalities.

For the time being, it is important that when it comes to mental health, risk assessments do cover mental wellbeing and are kept up to date, employees’ health issues are taken seriously and the requirements of the Equality Act 2010 are adhered to. These fundamental steps will assist to manage any legal risks and will be a good starting point to provide the support that individuals with mental health problems need.

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

If your business is concerned about managing ill health absences and reasonable adjustments find out what you CAN do by contacting FG Solicitors on 0808 172 9322 for a no obligation discussion.

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.

 

 

AS AN EMPLOYER WOULD YOU BE PREPARED TO INTRODUCE FLEXIBLE WORKING AS THE NORM?

 In the past, employers have tended to respond in three ways to a flexible working request:

“No, we never have part-time roles! We work 09:00 to 5:00, Monday to Friday!”

• “That’s all agreed. How about starting the new arrangement next week?”

• “We are sorry but after careful consideration we are unable to accommodate your request due to the following business reasons…”

Since the pandemic employers have had to rethink their approach to flexible working particularly when it comes to homeworking. Overnight, homeworking became a necessity to respond to legal requirements, protect against health risks and to enable working parents to care for their children.

What’s the trend likely to be?

Currently, publicity around the issue of flexible working is gathering momentum most likely triggered by the fact that the end of the current national lockdown may now be insight. Flexible working is broader than just homeworking and could involve a shorter working week or even term-time working.

Larger employers are acknowledging that flexible working will be on the table for their workforces, with the tech sector leading the way. While the drivers for these organisations may be cost savings because the workspace can be downsized or the roles are more suited to a more flexible approach to the working day, for many organisations flexible working may not be suitable or sustainable in the long-term. This is likely to become more apparent during the pandemic recovery period.

What are an employee’s current rights?

After 26 weeks’ service an employee is entitled to make a request for flexible working.

Employers need to ensure that a proper process is followed when considering a request, which will involve a right of appeal. All this has to be done within a three-month period.

A request can be refused but only on one of more of eight defined business reasons.

Are employers likely to be faced with more requests?
There is already some indication that there will be more formal requests for permanent flexible working arrangements as flexi-furlough and homeworking arrangements start to be withdrawn.

Some employees may still be concerned about returning to work because of health risks. In other cases, the pandemic and a positive experience of flexible working may lead to employees wanting to ensure they have a better work life balance. Other employees may consider it is now an automatic right.

Expectations will be different and employers are going to have to be ready to manage this.

How should employers be preparing for a request

Employees should be treated in a fair and consistent way to manage any legal risks. Answering the following questions will help you assess how ready you are:

What is our policy on flexible working?
This about the organisational culture and attitude and whether your response would be the first response identified above.

 What procedure will we use?
This is about ensuring that requests are dealt with in line with legal requirements. There is a statutory scheme and Acas has a Code of Practice and guide on handling requests.

• On what basis can a request be rejected?
One or more of the eight business reasons must exist together with the supporting evidence. If flexible working was the norm during the pandemic, it may be harder to reject a formal application in the future.

• How would you deal with competing applications?
Several applications arriving at the same time is a probability as restrictions ease. Requests must be dealt with in a reasonable and consistent manner. Employers should not be making decisions based on the most deserving request.

• Do you know what the legal risks are?
Tribunal claims are a possibility. Employers can be asked to reconsider their decision or pay compensation (a maximum of eight weeks’ pay). However, the more significant risks are constructive dismissal and discrimination complaints.

What does the future hold?

For the time being, employers can stand firm that there is not automatic right to flexible working and make decisions within the parameters of the eight business reasons. However, there is every possibility in the future that the government will make flexible working a right from the first day of employment i.e., the default position; employers will need to have a good reason not to offer a role on a flexible basis.
For certain roles it will be obvious that flexible working is not going to be an option. However, when it can work it can employers are likely to benefit from increased productivity and engagement.

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

If you are not sure if flexible working should be the new norm for your business 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.

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.

ARE EMPLOYERS ABOUT TO LOSE A VALUABLE WEAPON AGAINST COMPETITION?

For many years employers have used non-compete clauses in contracts of employment to get some breathing space for a specified period between an employee’s departure and them engaging in competitive activities. The justification for the period where the ex-employee’s activities are restricted is that it gives the employer the chance to shore up relations with customers. Over this period any confidential information the ex-employee was privy is likely to lose its commercial sensitivity.

The Department for Business, Energy and Industrial Strategy is now considering reforming the use of non-compete clauses in contracts of employment and is seeking consultation on the options. At the end of this month, the consultation process closes – 26 February 2021.

What’s on the government’s agenda?

Views are being sought on whether there should be a “think twice” approach or an outright “ban”. What will this mean for employers?

The “think twice” approach

The first option would be to discourage non-compete restrictions by employers having to pay compensation during the term of the restriction. The need to pay compensation may mean that employers think before they automatically reach for a non-compete clause.

“The consultation has identified three possible levels of compensation based on 60%, 80% or 100% of weekly average earnings for the restricted period.”

Unless the individual is operating at a senior level, has access to highly sensitive information or plays a key role in maintaining customer relations it appears unimaginable that any business would want to consider paying compensation at these levels for a defined period after the employee has left. Views are however being sought on time.
The consultation is also considering transparency measures and statutory limits on the length of non-compete clauses to sit alongside the compensation requirement. Transparency measures are likely to make it mandatory for employers to disclose the terms of the non-compete agreement before the employment starts. The consultation document has identified three potential maximum restricted periods i.e., 3, 6 or 12 months. Clearly, the longer the restricted period the greater the level of compensation.

Non-compete restrictions may be banned!

In simple terms, the second option would be for non-compete clauses to be prohibited once the employment has ended.

“The consultation is inviting thoughts on whether organisations would be able to sufficiently protect their business interests by other means, giving examples of confidentiality clauses and intellectual property law.”

Is there a reference point for these changes?

The government appears to be looking at how other countries approach this issue. Those businesses that operate on an international basis will already be aware that there is a marked difference across the globe with regard to the control of post-termination activities. In the USA for example, each state has its own set of rules. An employer in California which has a reputation for being an employee friendly state, will know too well that a non-compete restrictions is unlikely to be enforced by the court. If you operate in Texas, the court is more likely to look on your business more favourable.

The concept of ex-employees being paid compensation is not new. In Germany restrictive covenants are permissible subject to the detailed requirements of the German Commercial Code, which requires employers to pay compensation amounting to at least 50% of the employee’s total recent earning for the period of the restraint. France takes a similar approach where compensation is usually around 30% of the employee’s former salary for the duration of the restriction.

Why is this change being proposed?

While it may appear counterintuitive in the current climate to remove the protection which goes to the core of most business operations, the government considers reforming non-compete clauses may be one way of supporting the economic recovery and the labour market, which is much needed due to the COVID-19 pandemic.
While the justification appears on the face of it to have merit given the challenges the country is facing, some employers and lawyers may feel it is flawed.

“Enforcing a non-compete restriction in the employment context has always been notoriously difficult given the starting point is that it is unenforceable.”

The onus is on the employer to establish the restraint of trade is reasonable with reference to a variety of factors. If it gets to the point where the court needs to intervene, many employers are put off because of the risks associated with this type of litigation including high costs, there being no guarantee of success and the chance of having to pay the ex-employee damages. Many businesses gave up on non-compete restrictions some time ago due to a lack of confidence that a claim would be successful. Armed with this knowledge and the fact that only those employers with deep pockets will pursue them through the courts, savvy employees would often take the risk.

In reality, are non-compete restrictions hampering business innovation and the creation of new jobs to the level which requires consultation and ultimately statutory control? If so, to what degree?

What protection are businesses likely to be left with?

Looking ahead, compensation may be a more attractive option as it at least provides an employer with the choice when it is identified that an individual could do significant harm to the business if they joined a competitor.

“Non-compete restrictions never exist in isolation particularly as these are the ones that the court is least likely to enforce.”

Usually, other restrictions will be in place as a fallback position such as the confidentiality clause, or the non-solicitation or non-dealing clauses. The courts prefers these restrictions because an individual is not prevented from earning a living. These types of restrictions can survive alone and if properly drafted could give a business the protection it needs.

However, the consultation documents indicates that consideration is also being given to whether other post-termination restrictions should be reformed in the future.

Should employers now be exploring more innovative ways to protect their businesses?

For the time being and until the government legislates for something different, there is no reason why well drafted restrictive covenants that have been properly incorporated into the contract of employment cannot be used to protect the businesses’ commercial interests. While it may be some time before there is any clarity on the limits employers will face, it will do no harm for employers to consider what other ways their interests can be protected.

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

If you require further guidance on how to manage the departure of a key employee, 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. 👇

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

This publication is for general guidance only. Advice should be taken in relation to a particular set of circumstances.

Confused about your employees’ data subject access rights?

As an employer, do any of these issues sound familiar? 

  • “I am writing to make a data subject access request pursuant to the General Data Protection Regulations…”
  • ” This is a general request that relates to my personnel file and any other documents typed, handwritten or electronic records containing my name…”
  • ” I have received your response to my request, it is inadequate and has a lot of information missing…”
  • I intend to pursue a complaint with the ICO if I do not get what I want…”

Confused about your employees’ data subject access rights? Not sure about how to respond? Concerned about getting the response wrong and being reported to the Information Commissioner’s Office? Frustrated that a request will get 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 and data protection law.

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!

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WHEN TO SAY “NO” TO A SUBJECT ACCESS REQUEST?

 

Does this sound familiar?

An employee has raised a grievance, or a former employee is threatening to launch an Employment Tribunal claim. You receive a Subject Access Request (“SAR”) from the (ex-)employee requesting a mountain of documents many of which appear to be of no relevance to the grievance or claim.

Must you comply with SAR?

Before throwing the SAR in the bin, you need to think again…
The Information Commissioner’s Office (“ICO”) has published guidance which you may find helpful in deciding whether to comply with SAR. Before doing so, you may wish to review the overall legal requirements which remain unchanged. https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/

The recent ICO guidelines simply clarify certain aspects of the law.
When considering your response to the SAR, consider the following:

  • Is it “clearly or obviously unreasonable”?
  • What is the context in which it has been made?
  • Is the intent behind the request genuine?
  • How much management time will be required to provide the requested information?
  • What will it cost?
  • Is the (ex)employee simply trying to inconvenience the company or apply pressure on It in order, for example, to induce the company to settle a claim?

“Our legal team has seen an increase in vexation SARs over the last year and they are on the increase. Disgruntled employees are making requests as a matter of course with the sole intention of inconveniencing the employer for the purposes of financial gain.”

  • Has the information already been disclosed as a result of a previous SAR or otherwise?

Be careful if you are minded to reject the request
Just because SAR is for a considerable amount of information, and will include a lot of work, the guidelines make it clear that the SAR must be “manifestly unfounded” or “manifestly unreasonable”. Do not reject it solely on the ground that it is excessive. Instead, consider the context of the SAR, the organisation’s resources and take advice if necessary. Having done so, if the decision is made to reject all or part of the SAR because it is manifestly unfounded or excessive, keep a record of the decision-making process and your reasons for refusal. Those reasons should be set out in a letter to the individual along with a reminder of their rights to make a complaint to the ICO and to bring legal proceedings against the organisation to enforce those rights.

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. 👇

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.

 

POST-BREXIT – THE FUTURE OF EMPLOYMENT LAW!

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

  

Getting back to work

Work Safety

Announcing the extension of the furlough scheme will have provided many businesses and employees with some comfort and further financial breathing space during these challenging times. The scheme will remain in place until 31 October 2020, which is perhaps longer than initially anticipated. The scheme’s current format will however change from August with employers being required to share the cost of furloughed staff with the government.

By the end of May more detail about the post-July changes will be published. Although the aim of the changes will be to provide employers with greater flexibility to get furloughed employees back to work on a part-time basis, without the full detail of the changes, the real benefit cannot be assessed. So there will be some nervousness until the employer’s contribution has been published.

Most employers supported by the furlough scheme will sensibly defer any definite decisions about the future shape of the workforce and their return to work plans until further information is available. In the meantime, there are certain key questions that need to be answered.

Can the business return to the way it was in the short and long-term from both a financial and operational perspective and if so, how quickly can this be achieved, if at all?

Even when driven by financial necessity, furloughing employees will have been a difficult decision but in many cases it would have been implemented overnight. Bringing the operation back to life and having sufficient revenue streams to support this move is likely to be a more complex process; a new strategy may be required. Where people are at the core of the operation, workforce planning will be an critical part of developing a new strategy, which may inevitably involve restructuring and redundancies. Changes to contractual terms and conditions of employment may also be necessary. In either case, careful planning will ensure that all legal obligations, including complying with any consultation requirements are satisfied to minimise the risk of claims in the employment tribunal.

How will employees’ expectations be managed?

Until the recent announcement, the focus has been on the furlough scheme ending at the end of June. In contrast to the suggestion furlough is addictive, the majority of those furloughed will have been focusing on returning to work on 1 July, which is probably what individuals believed they were signing up to under their furlough agreements. Financial reasons will be at the heart of the decision for any business to utilise the scheme for as long as possible. In making this decision, employers need to be able to address employees’ current expectations, not only in terms of a continued requirement to remain at home but also the financial impact that it may have on them personally.  A clearly communicated rationale and a keeping in touch plan will be essential to retain the engagement of those on long-term furlough, if those employees are key to future business success once the recovery period is underway.

The consequence of long-term furlough means that employees are being asked to agree to a continued variation of their contracts of employment. If furlough is to be extended it will be important to establish if current furlough agreements can be relied upon or whether new agreements will need to be issued to avoid breach of contract and wage claims.

Are there any health considerations that need to be addressed in the return to work plan?

There is still no certainty about the curtailment of the virus and the health risks are still present. Any return to work plan must be supported by a thorough health risk assessment. The assessment needs to start from an employee’s home and include their journey to and from work. It is difficult to control who individuals come into contact with when away from work. Control measures will need to be implemented, including reiterating the importance of following the government’s social distancing measures and good hygiene. Further hard work will be needed once the employee is back at work to manage any health risks, with adequate controls being implemented. Adhering to government and the Health and Safety Executive guidance should be non-negotiable from the perspective of both the business and all employees when it comes to protecting individual well-being. Vigilance and flexibility in relation to control measures will be important to safeguard health, if the level of risk increases. The workplace is likely to feel and may look very different when employees return. It is important that clear guidance and training is provided on how to work safely and protect health.

Mental health should also be a factor that is considered as part of any risk assessment. This factor is multi-faceted. Some employees may need reassurance as they have concerns about their personal safety. Others may struggle to adapt when returning, particularly if the work regime feels unfamiliar. Deferring a return to work or making a request that homeworking is undertaken, may leave individuals feeling left behind and isolated. Employers have a legal duty to tackle work-related mental health issues; risks need to be assessed and controlled.

How will a phased return to work be managed?

Roles and skills will have been identified as necessary to support the initial recovery phase, while less business critical roles are likely to be kept under review as progress is made. Resuming some level of operation will be perceived as a positive step but there are potential legal risks that need to be addressed.

A phased return means that choices will have to be made about who returns, and from August whether this is on a full-time or part-time basis (if home working cannot continue), and who stays at home furloughed. Employment law still applies irrespective. To avoid any legal challenge, employers need to be transparent about the selection criteria adopted to bring people back to work while others remain at home. It is essential that this process is documented, and the audit trail must be capable of demonstrating that selection is fair, based legitimate business reasons and is not discriminatory.

Is business ready to be scrutinised?

The government’s focus is now on a transition period, with employers starting to take back responsibility for the cost of their workforce. In the absence of further detail, it is unclear if employers will be required to justify decisions made to retain employees on furlough until the end of October. Employers may be required to justify their decisions made about keeping employees on furlough throughout the extended period. The furlough scheme is not there to avoid dealing with problem employees. At some point concerns will have to be addressed.

The furlough scheme extension will continue to protect many jobs as the economy recovers. While waiting to learn more about the changes to the scheme from August, from an employment law and people management perspective employers should now start to sketch out the future for its operations and the workforce.

FG Solicitors are experts in all areas of Employment Law and HR, and we can slide your business through the business recover stages. Feel free to call us on 0808 1729 322 for a no obligation discussions.

This publication is for general guidance only. Advice should be taken in relation to a particular set of circumstances.