Category Archives: FG Solicitors

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.

  

THE TOP 7 TUPE RISK AREAS

Does TUPE apply? 

At the outset, the business should determine whether TUPE applies. Wherever possible this should be agreed with the other party before the business transfers or the contract moves to a different service provider. The risk arises when the parties cannot agree.

Failing to comply with consultation obligations

This is an issue where there are 10 or more employees in a non-unionised business/organisation, where there are no existing employee representatives who have been elected for the purpose of the transfer. In such instances the business/ organisation must arrange for the election of employee representatives – the regulations governing these elections, as well as the functions and responsibilities of those representatives are detailed, and financial penalties will be incurred if the regulations are breached. Both the transferor and the transferee may be liable for these penalties.

Identifying those who are to transfer and those who are to remain

This is an exercise that should be dealt with at an early stage of the planning process and should be able to withstand close scrutiny. Historically, this is an area that has given rise to a substantial raft of case law especially in specific problem areas, for example, where there are employees absent from the business due to long-term sick leave or furlough leave prior to the transfer taking place.

Dealing with the restructuring of the workforce post transfer

This is a risk area for both the transferor and the transferee. Restructuring which results in changes in headcount needs to be carefully handled in the light of the added protections offered by the TUPE regulations.

Ensuring pension rights are established

This is a particular issue for the transferee, especially when on-boarding staff who have previously enjoyed generous pension schemes with the transferor – a key example of this being on the award of a contract by a public sector organisation.

Changing terms and conditions post transfer

Identifying when change is permitted and the mechanism for change in terms and conditions of employment.

Relocating staff post transfer

This is now allowed but there are processes to be followed which can prove costly if breached.

FG Solicitors are experts in all areas of Employment Law and HR. Feel free to call us on 0808 1729 322 for a no obligation discussions.

This information is for general guidance only and does not constitute definite advice.

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.

 

 

National Living Wage FAQs

When does it come into force?National Living Wage - FG Solicitors

1 April 2016.

How much is it?

£7.20 per hour.

Is there a small employer exemption?

No. All employers will be obliged to pay the National Living Wage.

Who does it apply to?

Workers aged 25 or over.

Where has this come from?

It falls under the National Minimum Wage legislation.

Is it the same as the Living Wage? 

No, organisations must pay workers the National Living Wage, but the Living Wage is voluntary, set by the Living Wage Foundation and calculated according to the basic cost of living in the UK.  The current UK Living Wage is £8.25 per hour and the current London Living Wage is £9.40 per hour.

What payments can be taken into account when deciding if the correct rate is being paid?

There are a number of elements of pay that can be taken into account. These include basic pay, bonus, commission, piecework and accommodation allowances.

Are pension payments made by the employer taken into account when deciding if the correct rate is being paid?

No.

What about tips?

Tips cannot be taken into account when calculating whether the correct rate has been paid to the worker. This is even if the tip is paid through the payroll system.

Is there an easy way of checking if I am paying the correct amount?

The Government has published an online calculator which can be used by employers and employees to determine whether the correct amount is being paid. This can be accessed at:

https://www.gov.uk/am-i-getting-minimum-wage

What happens if I fail to pay the correct amount from 1 April 2016?

The rates are enforced by the HMRC and those employers who fail to pay the correct rates will face financial penalties.

Contact Details

For more details about the National Living Wage please contact a member of our Employment Law team:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Fast & Furious!

And The Winner Is…

Ben Baxter from Altodigital Networks Ltd who achieved the fastest lap time of 10.52 seconds around the FGS Scalextric track, winning a bottle of bubbly and a free contract review!

All lap times are below:

Leaderboard

We hope that you enjoyed the event and we look forward to seeing you soon for our next FGS challenge!

Contact details:

fgmedia@fgsolicitors.co.uk

(0) 808 172 93 22

FGazette July 2015

FGazette NewsletterFor all the latest updates on government actions in regards to trade unions, employment tribunals with a focus on settlement agreements and engaging your workforce please follow the link in the image.

Please forward the FGazette to any of your colleagues and contacts to whom you feel it may be of benefit.

If you have any problems viewing this link, please contact us on 0808 172 93 22 or fgmedia@fgsolicitors.co.uk

FGazette April 2015

FGazette April 2015

Welcome the latest edition of the FGazette – we wish you a Happy Easter!

This latest edition of the FGazette is packed with key employment law updates and includes issues such as eliminating tribunal claims worry, considering whether individuals are employed or self-employed as well as performance management in the workplace.

Click on the image to read and please forward the FGazette to any of your colleagues and contacts to whom you feel it may be of benefit.

If you have any problems viewing this link, please contact us on 01604 871143 or fgmedia@fgsolicitors.co.uk

Social Media in the Workplace Seminar – 23rd April 2015

SOCIAL MEDIA

Date: Thursday 23rd April 2015

Time: 8am – 10am

Venue: FG Solicitors’ Offices

Cost: Free & breakfast provided

To book your place at our Social Media in the Workplace seminar, please contact us using the details below:

info@fgsolicitors.co.uk

+44 (0) 808 172 93 22

We look forward to hearing from you.

STOP PRESS: Updated Guidance on Fit Notes

Megaphone - Hot Off the Press (123rf ref 8981071)In the October 2014 edition of FGazette – the quarterly newsletter of FG Solicitors, we reported on the launch of the government’s new Health and Work Service. To read this article please click here.

The government has since published updated guidance for employers and line managers on what to do when given a fit note by an employee.

The guidance document takes you through the different sections of the fit note and how the notes can be used to help your business.

To view the document, please click on the link below:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/400128/fitnote-employers-line_managers-jan-2015.pdf

Data Protection – Do You Know Your Rights and Responsibilities?

Data Protection

  • Workers have the right to make a subject access request – do you know how to respond to this?
  • Do you understand the 8 principles under the Data Protection Act that everyone responsible for using data (including employers) has to follow?
  • How does the Data Protection Act affect an employer’s ability to monitor employee’s telephone calls and e-mails and use CCTV in the workplace?

To be up to speed on Data Protection refer to the latest edition of Tolley’s Employment Law, published by LexisNexis and updated by FG Solicitors.

Click below to see an extract from our chapter which includes information on monitoring at work:

Click here for Extract

Should you wish to purchase the latest issue, please click here:
http://www.lexisnexis.co.uk/store/uk/Tolleys-Employment-Law-Service/product

Contact us to discuss any data protection/employment law issues on info@fgsolicitors.co.uk