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What the Labour Government Has In Store For Employment Law

Labour won the election in July 2024. It seems that the new Labour government have a lot in store with regards to making employment law changes. UK employers should therefore prepare for major reforms, which include day-one unfair dismissal protection, expanded flexible working rights, immediate sick pay, and increased pay gap reporting, among other changes.

Day One Unfair Dismissal Rights

Labour intends to give employees protection from unfair dismissal from the first day of their employment. Currentlly employees need two years continuous service in order to claim unfair dismissal. Employers will need to have robust recruitment processes in place and use the probationary period wisely. No doubt employment tribunal claims will dramatically increase. Employees will soon have six months to make a claim rather than the existing three months less one day.

Day One Right to Flexible Working

The right to request flexible working became a day one right on 6 April 2024. The Labour Party has now stated that flexible working will be made the default for all workers unless this is not feasible. The aim is to increase flexiblity for all workers.

Day One Right – Statutory Sick Pay

Labour will remove the four-day waiting period so that statutory sick pay (SSP) must be paid from day one of sickness, which will increase employers’ costs.

Day One Right to Parental Leave

Currentlty employees must have one year service in order to take parental leave. The Labour government will make this day one right.

Protection from Sexual Harassment

Employers will have to take steps to ensure protection from sexual harassment. There will be strengthed protection for whistleblowers including women who report sexual harassment at work.

Maternity Protection

Women will have protection from dismissal within the first six months of her return from maternity leave.

Right to Switch Off

To preserve the work life balance and to prevent working at home being 24/7 employees will be given the right to switch off.

Exploitative Zero Hours Contracts

Exploitative zero hours contracts will be banned and all jobs will be placed on a level playing field to ensure stability and security. Compensation will be paid to workers where their shifts are cancelled without reasonable notice.

Trade Unions

Employers will be required to inform their employees about trade union membership and their right to join.

Employment Law Changes in 2022

There are a number of employment law changes in 2022 which employers need to consider.

National Minimum Wage Increase

From 1 April 2022 the national minimum wage hourly rates increase to:

£8.91 to £9.50 for workers aged 23 and over (the national living wage)
£8.36 to £9.18 for workers aged 21 or 22
£6.56 to £6.83 for workers aged 18 to 20
£4.62 to £4.81 for workers aged under 18 who are no longer of compulsory school age, and
£4.30 to £4.81 for apprentices under 19, or over 19 and in the first year of the apprenticeship.

Employers should write to employees to confirm the change.

Increase in Family Friendly Rates

From 3 April 2022 the rate of statutory maternity, adoption, paternity, shared parental and parental bereavement pay will increase to £156.66, up from £151.97. The increase normally takes effect on the first Sunday in April, which in 2022 is 3 April.

Increase in Statutory Sick Pay

The rate for statutory sick pay will also rise on 6 April 2022. The new rate will be £99.35, up from £96.35.

Increase in Redundancy Pay Rates

From 6 April 2022 the maximum weekly statutory redundancy payment rate rises to £544 per week. This rate applies to employees with at least two years service.

Right to Work Checks

From 6 April 2022 employers will have to undertake right to work checks on a face to face basis. Currently checks may be carried out remotely and were introduced so that UK based employers could recruit employees more easily from overseas.

Increase in bank holiday entitlement

To celebrate the Queen’s platinum jubilee an additional bank holiday is being awarded on Friday 3 June 2022. The late May bank holiday is being moved to 2 June.

Depending on the wording of the employment contract an employer may contractually not be obliged to provide employees with the extra bank holiday. However, they may consider doing so as a goodwill gesture and to ensur morale.

There are other possible changes on the horizon which the government is proposing to introduce. These may take place in 2022.

Extension to redundancy provisions

In order to prevent pregnancy/maternity discrimination in redundancy the government intends to extend the protection a woman receives on return from maternity leave for up to six months whereby they are automatically offered a vacant position to prevent redundancy. However, the woman must have the skills to undertake the role. They currently do have a right to be offered a vacant role if they have the skills if redundancy to avoid redundancy whilst on maternity leave.

Extended leave for neonatal care

Following consultation the government published a response in March 2020 confirming that parents of babies that are admitted into hospital as a neonate (28 days old or fewer) will be eligible for neonatal leave and pay if the admission lasts for a continuous period of seven days or more. They will be entitled to this from day one of their employment and up to a maximum of 12 weeks. More details will need to be published.

Carers Leave

Carers will be given the right to one weeks unpaid leave. The details have yet to be published.

Flexible Working

The government is proposing to introduce flexible working as the default setting unless an employer can justify otherwise. The details have yet to be published.

Sexual Harassment

A new duty will be placed on employers to prevent sexual harassment and third party harassment. The details have yet to be published.

Dismissing Staff with Less Than Two Years Service

I am often asked by clients about dismissing a member of staff with less than two years service. It is good to check as whilst this may seem relatively straightforward there are a few things to bear in mind before proceeding. Caution is recommended along with the necessity for an employer to show reasonableness.

Under two years service an employee does not have the right to claim unfair dismissal. This may lead an employer to think they are protected from an employment tribunal claim. However, this is not necessarily so depending on the circumstances that have lead the employer to consider dismissal after a short period of service.

Often the employee has not performed particularly well since starting employment. As a cost is usually attached to recruitment a wise employer should put in place a structured probation monitoring period where regular documented meetings take place to discuss with the employee progress that is being made and whether any support and/or training is required. This shows investment in the new employee and can boost their morale encouraging good performance. If an employer ignores this due process, as many do, it can lead to under performance that may impact detrimentally on the business including colleagues.

In my experience some employers can ignore the situation hoping things will get better until they consider enough is enough. It the situation is allowed to drift on until almost two years is up the period of notice needs to be considered which may launch the situation into a possible unfair dismissal situation if not carried out properly.

It is always best to tackle poor performance in a probation period as quickly as possible and not ignore the situation. The reason for the underlying under-performance should be considered. It may be that a disability is impacting on the situation which needs to be tackled very carefully looking at ways things can be improved via reasonable adjustments. An early discussion with the employee is recommended and consideration to an occupational health advisor may be needed.

For poor performance that is tackled early and where there is no improvement it should be possible to invite the employee to a meeting to discuss their under performance and the need to dismiss them from their employment. Whilst there not be a need to put a formal structured process in place as is required if the employee has over two years service best practice would be to send a meeting invite letter and give the right to be accompanied by a trade union representative or a work colleague.

At the meeting iIf documented meetings have taken place during the probation period these can be referred to. The meeting should be followed up in writing confirming the outcome should dismissal be required, giving details about the termination including P45 provision. I usually recommend that the employee is given the right to appeal.

Under performance or capability is a fair reason for dismissal. Other reasons may include conduct, redundancy, breach of statutory provision or some other substantial reason.

In certain circumstances the dismissal may be classed as automatically unfair. This can include reasons related to pregnancy/maternity, asserting a statutory right such as taking annual leave or the right to the minimum wage, health and safety concerns, whistleblowing and any form of discrimination, If an employee is dismissed due to a protected characteristic which include include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation as detailed in the Equality Act 2010 this is automatically unlawful.

In any case the decision to dimiss should not be taken lightly and every effort should be made to try and get the employee up to speed as quickly as possible and certainly not leave it until almost their two years of service is up.

Additional information on dismissing staff with under two years service can be found at https://www.acas.org.uk/dismissals

http://sjbealehrconsult.co.uk/performance_management.htm

The New COVID variant Omicron – what’s an Employer to do?

In recent weeks a new variant of COVID has begun to emerge. The race is on to get everyone jabbed and issued with a booster in order to try and stop the spread of the new COVID variant, Omicron, as well as previous versions of COVID. A few days ago WHO gave an update on Omicron https://www.who.int/news/item/28-11-2021-update-on-omicron

From Tuesday 30 November 2021 face coverings are once again mandatory in shops and on public transport. This is to try and halt the spread of the virus. It seems however that certain shops are not going to enforce the rule – namely the Coop – https://www.bbc.co.uk/news/business-59481287, Tesco and Lidl as they do not see it is their role as a law enforcer. Face coverings must also be worn by students in year 7 and above along with staff in communal areas unless they are exempt.

Countries are once again being put on the red list. Malawi, Mozambique, Zambia and Angola were added to the red travel list, which now already includes South Africa, Botswana, Lesotho, Eswatini, Zimbabwe and Namibia.

Anyone travelling internationally will need to take a PCR test on or before day two after their return to the UK, including those who are fully vaccinated. They must self-isolate until they have a negative test result. Lateral flow tests will not be accepted as an alternative.

Anyone who is a contact of a person who has tested positive with a suspected case of the Omicron is required to self-isolate for ten days. This includes those who are fully vaccinated.

More information can be found here : https://www.gov.uk/coronavirus

The government is throwing everything at the situation to ensure everyone can have a third jab and all adults will have been offered one by the end of January 2022.

Actions for Employers With the New COVID Variant

Employers need to consider health and safety as under the Health and Safety at Work Act 1974, employers are required to take all reasonably practicable steps to reduce workplace risks and employees have a legal duty to co-operate. A review of health and safety obligations should be undertaken by carrying out risk assessments to try and reduce the spread of the virus. Staff and visitors should be reminded to be vigilant and their obligations too.

Employees may need to be encouraged to work from home where possible building on emerging hybrid working practices. For those employees who can not work at home face coverings should be required and PPE provided where necessary. At the moment working from home is not being enforced by the government however it might be prudent for employers to issue guidance on the matter to the their employees. Support for staff both psychologically and physically should be also offered.

International travel for business purposes may have to be curtailed especially where a country is on the red list.

Sadly it seems that the new variant may affect 2021 Christmas parties. Usually a time to have fun for some employees now it may be causing anxiety. Many pubs and restaurants are suffering from cancellations in the wake of the emerging news. Once again the hospitality industry could be be hit hard and will impact on staff. It seems the big company party is off and employers are choosing to hold much smaller events – https://www.bbc.co.uk/news/business-59492569

The cases of Omicron are gradually increasing it seems. It is not known how quickly the virus will spread or how serious its impact will be. Even if someone who has been double vaccinated can get the Omnicron virus and transmit it. Testing and self isolation should be firmly encouraged.

The message should continue to be “stay safe”.

The Office Christmas Party – Tips to Ensure Good Conduct

The TV is full of Christmas adverts so the Christmas season is fast approaching along with the anticipation of the associated festivities. Many companies like to put on a Christmas party for their hard working staff, but with that there comes responsibilities on both sides. 2021 is especially sensitive due to COVID restrictions.

Christmas parties generally have a positive impact on moral and team spirit and it an opportunity for an employer to thank employees for all their hard work. However the boundaries need to be set by the employer to avoid any future problems. UK legislation is clear, the office party is an extension of the normal work environment if is held at a separate venue or outside of working hours. Employers can be held responsible for employee actions so need to avoid discrimination and health and safety claims so need to have procedures in place. Companies need to make sure they make it clear to staff what is and what is not acceptable behaviour at social events and follow up any failure to comply with this order with disciplinary action. Employers may be liable for the discriminatory behaviour of their employees and ultimately face significant tribunal claims if they are found vicariously liable. Employees can be disciplined for any breaches of disciplinary rules, including dismissal for gross misconduct, following unacceptable behaviour at the Christmas party. Therefore, having clear HR procedures in place that are well communicated with training provided are essential.

Companies need to ensure managers are careful not to let their guard down being sociable or allowing alcohol to loosen their tongue and discussing issues such as promotions or pay rises in the informal setting of the Christmas party. It is important to carry out a risk assessment of the Christmas party venue, considering any particular risks posed to any disabled employees. It might be a good idea to limit the free bar, if one is planned and, in any case, encourage responsible drinking. Companies may be liable for the welfare of employees if they suffer alcohol-induced accidents. Consider organising transport home with designated non-drinkers as drivers or paid for coaches/mini buses.

If there is a ‘Secret Santa’ taking place, make sure staff know the boundaries confirming that racist or adult gifts, which might offend, are not acceptable. A decision needs to be taken to what extent employers will be lenient with staff on the day after the party, if it is a working day, provide clear information on employee requirements beforehand. Health and safety should be of utmost importance. Employees should not be expected to operate machinery if not fit to do so. Also the safety of employees driving to work after having had transport home the night before should be considered. Take these reasonable steps to prevent inappropriate behaviour then employees must take their own responsibility for their actions. In any case it might be a good idea to produce guidelines for employee behaviour at the company party.

ACAS provides some extra guidance on this subject – https://www.linkedin.com/pulse/acas-christmas-parties-andrew-hennessy/

Hopefully nothing untoward or serious will happen and all employees will have a good time.

The Problem with Second Jobs

A row has recently erupted in Parliament regarding MP’s second jobs –https://www.bbc.co.uk/news/explainers-59206904s. It seems many MPs have secondary employment in addition to their main employment of representing their constituents. This means they are paid by an another employer in addition to receiving their MP salary. This could be either paid employment or self employment.

Potentially having a second job may conflict with the role they are paid to do for the government . It would seem due process in in place to declare this to their main employer however that information is not readily available to members of the public https://www.theguardian.com/politics/2021/nov/14/mps-keep-second-job-details-secret-for-years.

It is important for employers to find out if their employees have secondary employment. This is to ensure that having another job will not impact on their main employment. An employee’s responsibility should be to their main employer where their time and attention is dedicated that role for which they receive a salary. Having a second job may impact on performance and would not be acceptable. An employer is within their rights to ban secondary employment and this should be declared in an employment contract and staff handbook.

It is important that an employee does not contravene working time legislation which is in place to ensure health and safety. Working too many hours can impact on health and may lead to sickness absence. This would add inacceptable costs to a company and would impact on efficiency.

Another problem is the impact on data protection and commercially sensitive information. It is important to include clauses in an employment contract to ensure a company’s assets are protected.

Finding out if an employee has secondary employment is important. A question about this matter could be asked on an application form or if CVs are used at interview. A clause should be built into an employment contract so that an employee is required to seek written permission to undertake secondary employment. In addition consideration should be made to including a secondary employment policy in a staff handbook. Should an employee ignore the clause in an employment contract and later it is found that they have secondary employment that has impacted on their main role then it is possible to instigate a disciplinary process.

Prisoner and Offender Employment – Fill the Skills Gap

It seems the skills gap faced in the UK could be solved by prisoner or ex-offender employment. Meat industry representatives have been meeting with the government to seek ways to develop the ability to fill their vacancies. This is demonstrating a really positive “thinking outside the box” mentality. Most industries in the UK are facing a huge skills gap – hospitality, transport, fruit and vegetable growers and now the food industry. https://www.bbc.co.uk/news/business-58303679

Covid and Brexit have had a huge impact on the UK’s job market. The UK prisons contain a huge labour market that potentially could be used to benefit the country and keep prisoners and ex-offenders fully utilised in the employment market. They can be well behaved, hardworking and willing to learn, receptive to the idea of developing new skills for their own benefit. Many ex-offender are keen to avoid ending up back in prison so being taught new skills that can give them paid employment and an income is highly beneficial. Some employers will have to overcome the over-riding negative perception that may exist in employing individuals who have been sentenced for committing a crime. Statistics show that only 17% of ex-offenders are in paid employment after one year of being released.

Bernard Matthews in Norfolk has long realised the benefits and formed links with HMP Norwich to recruit and employ ex-prisoners. Other big businesses are cottoning on such as Greene King who are aiming to employ 50 offenders within a year to overcome the hospitality skills shortage. Other companies include Barclays, Boots, Amey and Carpetright, Kier and Lloyds Bank.

Prison has a strong rehabilitation focus aiming to benefit prisoners to be integrated back into society on release. Training and development is quite key to this aim.

The New Futures Network is a specialist part of the prison service that brokers partnerships between prisons and employers. There are various different schemes available that employ serving prisoners, those on release of temporary licence and employment on release. Over 400 business in the UK are benefitting and tapping into this talent pool.

Apart from reducing the skills gap there are some key benefits for employers:

Reducing recruitment and advertising costs. A vacancy can cost one and a half times the salary of a role to recruit to.
Diversity, inclusion and social responsibility. Hiring ex-offenders can increase a company’s diversity. Many prisoners want to turn their back on crime and contribute to society.
Reducing staff absence. Although having a worry that ex-offenders are not trustworthy research has shown that the opposite is true with over 80% are rated as reliable, motivated and perform well.
Increase staff retention. Marks and Spencer have shown that the ex-offenders they have employed aim to keep the job they have been able to secure.

Whilst certain types of offending may not be suitable for a particular role or business this should not stop a company from considering the wealth of labour that is available. Often a conviction has no relevance to a job that is on offer so companies should look at their recruitment policies being mindful to the Rehabilitation of Offenders Act (ROA) 1974. With this law after a while convictions may be spent and should not impact on employment. Being spent means that the individual may act as though they had not been convicted after a certain length of time depending on the crime. However, certain convictions may never be spent

With certain roles employers may have to make use of the Disclosure and Barring Scheme basic or enhanced certificate and applicants have to declare their convictions. More information can be found on https://www.gov.uk/government/publications/new-guidance-on-the-rehabilitation-of-offenders-act-1974

Companies interested in employing prisoners may register on the Ministry of Justice website https://www.smartsurvey.co.uk/s/TEAEB/ It makes good business sense.

Employers – How to Manage the End of Furlough

With the end of the government making payments towards furlough terminating at the end of September 2021 it is important for businesses to make preparation for the end of furlough. Employers have the options of allowing employees to return to work on the same or different employment terms or making them redundant.

With returning to work there may be several options available. Many businesses have already begun to operate hybrid working which is a combination of office and home working. This is a practice which began during the lockdown period. This may, of course, only apply to businesses that do not require staff to be on site during working hours or businesses which have got rid of offices during the pandemic to save on costs. When considering hybrid working the business needs to be clear about this offering – such as specifying when staff can work at home or need to be in the office ranging from one to four days as applicable.

Issues such as flexi working, performance management and health and safety all need to be considered. Some employees may be struggling due to the lack of structure caused by enforced home working as after all for some it may take some getting used to. These employees may miss the physical presence of their work colleagues so finding ways to overcome this and encourage motivation is really important. Video conferencing software may allow a suitable alternative to have team or 1:1 meetings. Indeed this can help with performance management processes so that a manager and an employee may have meetings as though both were working in the office environment.

It is important to have a well communicated hybrid working policy in place and ensure that issues such as health and safety and performance management are incorporated. The hybrid working policy should outline how things will work such as how to request hybrid working and the procedure, the use of equipment, support and training. The policy should set limits as hybrid working may not be suitable for all roles. ACAS has produced some useful information on hybrid working https://www.acas.org.uk/hybrid-working

Changes to the employee’s employment contract will be needed should hybrid working be agreed.

For those businesses that have continued to furlough staff it is important to have a return to work plan in place with good communication at the heart of this. Staff need to be given written notice with clear instructions as to what will happen with pay and working arrangements. Employers should be prepared to discuss concerns which may be about more than just mental health and well being and ensure that staff can provide proof of a negative COVID test to ensure they are safe to return. It may be necessary to promote the importance of health and safety and any changes to the business. To avoid the unnecessary build up accrued annual leave and associated work cover many employers should have ensured furloughed staff have taken their entitlement If not employees are only entitled to carry over twenty days leave from a previous annual leave year.

Mental health and wellbeing are important so businesses need to consider how they will support employees. Some employees may struggle to return to work. Initiatives such as implementing an Employee Assistance Programme which incorporates a counselling helpline as well as having an occupational health advisor to consult with regarding any sickness absence and disability issues can help. Line managers are also key to offering support and should be aware of this responsibility.

For some employees there may be a requirement to consider reduced working hours at the end of furlough. This would require consultation and agreement.

For businesses unable to offer any work as the end of furlough approaches will have to consider a redundancy process following the due legal procedure.

A Guide to Furlough Leave

To assist employers during the current Coronavirus pandemic the government has introduced furlough leave. This will allow employers to retain valued employees whereas they would otherwise need to be made redundant due to the current downturn in the economy. It is otherwise known as the Coronavirus job retention scheme. Furlough leave will help employers during the Coronavirus pandemic.

The goverment will provide a grant whereby employees may receive 80% of their pay for a three month period paying up to £2500 per month. Employees are therefore kept on the payroll. As it stands the money may not be available until June while the government sorts out the finer details. Employers may choose to top up furlough pay to an employee’s full salary or Universal Credit may be available.

An employee working at reduced hours and pay will not be entitled to furlough. Furlough pay can not be received if an employee is working.

During furlough leave, as with lay offs, annual leave accrues. A press release announced today states that twenty days leave may be carried over into a new annual leave year and employees may have up to two years to take it.

An employer must designate employees to be placed on furlough leave. The employees should be notified of this in writing and agree to that if there is not an appropriate clause in their employment contract. The employer then liaises with HMRC for reimbursement.

Coronavirus – Tips for Employers

The UK is in the grip of a coronavirus pandemic with nothing like this seen before. It is affecting all aspects of daily life including the economy and work. With advice emerging from the government on a daily basis the situation is rapidly changing and may last for many months to come.

Many employers are worried about what to do for the best so in this blog I provide some tips on staff management during these difficult times.

Wherever possible it might be prudent to allow staff to work from home. Of course this may suit some industries that rely on accessible systems where information is available for employees to allow them work remotely. the use of conference calls and Skype are also useful to hold remote meetings. However with other industries which provide a face to face service this will not be possible. In such case solutions that reduce human contact, if possible, must be considered. One of my clients is preventing customers walking in off the street by closing their front door and highlighting the need to use the bell to alert staff that someone is there so that they can be attended to.

As many businesses are now being impacted by the spread of the virus there may be a need to consider reduced hours. Reduced travel may also apply depending on the job role. Employees should be advised in writing of a possible temporary reduction in hours and pay or lay offs. These can only be put into practice with an appropriate clause in the employment contract otherwise redundancy may have to be the only option if holidays can not be used.

Staff who contract the coronavirus must receive SSP from day one at the very least if occupational sick pay is not paid. Staff who earn less than £118 per week can access universal credit more easily. Managers should be vigilant to spot the symptoms then send the ill employee home as soon as possible to self isolate.

Employers should keep their staff up to date with developments making sure that those who are pregnant, over 70 or with an underlying health condition are especially protected.

Government advice is to wash hands so plenty of hot water, soap and towels should be made available in the workplace.