Labour's Employment Rights Bill

4 dec · Employment Law Focus

00:41:58

Amy: Hello and welcome to the Employment Law Focus podcast. I'm Amy Stokes.

Charlie: And I'm Charlie Ray

Amy: and we're both employment law partners at TLT and today we're going to be discussing the Employment Rights Bill and well all 150 pages of it, well not quite but what we've done is we have discussed amongst ourselves Charlie and I and pulled out our top 10 takeaways from it.

By way of background, this was introduced to Parliament on the 10th of October and is the first phase of delivering the government's plan to make work pay. It brings in 28 individual employment law reforms. And the bill is a wish list of reforms, and it builds in some of the labour manifesto but a watered down version so it's not quite set in stone.

Despite the headlines in the papers, it's a while before any of these changes are going to happen. Much of the details are going to be provided via regulations which won't be passed until consultation with stakeholders has concluded. Four of those consultations were very quickly turned around and have actually already started. Those include on zero hours contracts and their application to agency workers, beefing up the remedies for collective redundancy consultation, all the updates to trade union legislation and also statutory sick pay.

The government doesn't expect to start consultation however for the rest of the reforms until 2025, with the result that most reforms in the bill will not take place until we anticipate at least 2026, although there's been no commitment on that just yet. The bills also got to go through both houses of parliament before it gains royal assent and therefore may be changed along the way after the consultations as well.

So the bottom line is really that the proposals in the bill might well change and employers are going to have plenty of time to feed into the proposals and to prepare for them.

What Charlie and I have done to prepare for this podcast today is that we've picked out what we think are the most interesting elements of the bill, the reforms to the bill, primarily to employers. And we're going to run through them, not in the order of importance, just kind of in a more general order, just to give you a flavour of what they are. So, we'll talk through the background to them, the detail of the reforms, to give you a bit of an explainer on those. And then we're going to give you some of our insights from practice about what we think the real impact of those are going to be.

So, Charlie, do you want to kick us off with your first one?

Charlie: Yeah, we're going to start with probably what's been the main headline grabber from the bill, which is the proposal to remove the unfair dismissal qualifying period. Now, as we know, at the moment, we've had for some time a two -year qualifying period to be able to claim ordinary unfair dismissal. That doesn't take into account automatic unfair dismissals like whistleblowing, for example, where you don't need the two-year service, but for most unfair dismissal claims, two years service is required.

So the idea is that it's going to become a day one right, and that so long as you started work from day one, you will have the right to claim unfair dismissal. The government are proposing to consult on introducing a new statutory probation period. So, the idea is that during that probation period, an employee could be dismissed using a lighter touch process, where if the dismissal is because of capability, or conduct, or contravention of illegal duty, or potentially for some other substantial reason, which are all reasons that we're familiar with now, that that would be a valid reason for an employer to terminate at the end of this probation period.

We need some detail on this, obviously, and one suggestion is that a redundancy dismissal wouldn't be subject to this lighter touch dismissal as a result of the statutory probation period. So it will be interesting to see how that one plays out. The suggestion is that the government's preference is to have a nine -month probation period in this so -called initial period of employment and I think the indication is that they would expect an employer to at least hold a meeting with the employee to explain the concerns about say their performance if that's the reason before making a decision to dismiss. So, it's going to be interesting to see how the government will develop that.

Amy: Yeah it's really interesting actually Charlie, I think that there's going to be the consultation on that's going to bring out some interesting points. But actually, it sounds like it's going to have a really big impact on employers. What do you think in practice that's really going to be?

Charlie: Certainly one of the implications is likely to be that more litigation may follow as a result of widening out the net to who it covers. I saw a statistic that suggests that this will grant unfair dismissal rights to another 9 million employees. So, straight away, the prospect of litigation is going to be increased. There's a question that I've seen floated as to how long an employer would need to be able to make a decision about whether an employee should stay in the role beyond this initial employment period.

And nine months, is that long enough? I think many employers would probably be hard pressed to think that nine months isn't long enough to make a decision about whether an employee is suitable for their role. What I think it will be in practice is that employers are going to have to tighten up their processes.

I mean, many employers at the minute do follow quite good probationary review processes where issues that might lead to an employee failing their probation period are flagged in good time and discussed, and therefore no surprise to the employee if they fail their probation period as a result of it. But not all employers do that.

And so, I think if you're going to take advantage of this new statutory probation period, it's going to mean employers have to tighten up their processes in handling probation reviews and probation decisions. I think it's also going to mean employers are going to need to ensure that they follow their redundancy processes in all cases because of the suggestion that redundancies wouldn't be part of this probationary review dismissal option. So, yeah, I think it's going to be quite a big change for employers this, if it comes in the way suggested. So, yeah, keep your eye on that one.

Amy: Yeah, and plenty of time to plan as well. I think that's a key point. As you say, some employers are already utilizing probation periods pretty well. So actually looking at that and expanding that practice more widely, I think is important. So, Thanks, Charlie.

So the first one from me moving on is the very hotly anticipated reform in relation to fire and rehire. It gets all the headlines that the way that it's been described. It's hit the press enormously given the large scale and perceived abuse of this by some employers. And so just to explain, firing rehire is essentially a tool, and actually in some cases a very useful tool, that employers use to change terms and conditions in the event that employees won't agree to those through a consultation process.

Importantly, the employees retain their continuous service, so that's the rehire piece. It's not just fire, it's rehiring the retain that continuous service. And it's often after a consultation period with unions or staff reps, and in my experience, and I'm sure yours as well, Charlie, it's very much used as a last resort. It was to be banned initially but then Labour realised that if they only addressed fire and rehire businesses are simply just going to fire employees and then rehire different employees which is what P &O Ferries did and that was all over the press as well.

What the bill proposes is that dismissals for refusing to agree to a variation will be automatically unfair where either the employee or another employee will be re -employed or employed to carry out substantially the same work. An exception there is going to be where essentially a business is on its knees and about to fall over. And so to use the proper term for that, it's where the employee can show evidence of financial difficulties, which or carry on the activities of the business and that in all of the circumstances, it could not avoid the need to make the variation.

Charlie: Yeah, I mean, what do we make of that defence, Amy? Is that going to be a way, do we think, of keeping in the right to fire and rehire through the back door or is it going to be difficult to meet that defence? What do we think?

Amy: Yeah, it's an interesting one. So, we thought that this would be a complete ban on it, and they

obviously introduced that defence. And the financial difficulties defence seems quite a hard one to run, given that an employer essentially needs to show that in all of the circumstances, the employer could not reasonably have avoided the need to make that variation. So they're going to need to be in some serious financial difficulty to satisfy that test, so in liquidation or in solvency.

So I think it's going to be really narrow, but I think the important kind of take away from this is, as I mentioned at the beginning, this does fall short of a total ban on fire and re-hire hire, which is what Labour had initially committed to do. However, it may as well be a ban with the enormously high bar that's been set to that exception. As we say with all of these, the devil's going to be in the detail. And I do think that these provisions will be contested by some employees in the consultation, there certainly needs to be a bit more clarification given on that financial difficulties, defence as well. Employers are undoubtedly going to have to produce accounts and all that kind of stuff as well, which would be quite interesting.

Charlie: Yeah, no, it certainly is. And actually, another area that we heard might have been banned is the third topic we're going to look at, which is the ending of exploitative zero hours contracts. And that's the phraseology that was being used by the Labour Party prior to the election, that they wanted to end the use of exploitative contracts that are zero hours ones. And many had speculated that meant they were going to ban them all together. And the bill makes clear that's not what they're planning to do. Instead, what it's going to do is propose to put an obligation on employees to have to offer these so -called guaranteed hours contracts to those who are on mainly zero hours contracts, but also those who are on minimum hours contracts as well to reflect the hours that they're regularly working over a reference period. And we're understanding that reference period is likely to be 12 weeks.

So that's going to be quite an interesting change for employers that use zero hours contracts, that the stats show over a million individuals are engaged on these type of contracts in the UK. So, it'll affect a lot of people. The idea of this offer is one that the worker wouldn't have to accept it. So what we might find, and this is where some of the detail will be quite interesting, is that if hours become more regular over time or increase over time, whether subsequent reference periods are going to mean that the workers are going to have the chance to be offered, again, the opportunity to have one of these guaranteed hours contracts reflecting what they might think is a better offer and is there going to be this ongoing obligation to update offers?

I guess the expectation is that if the offer is then accepted that then they go on to one of these guaranteed hours contracts and they're no longer on the same basis that they were prior to that as an ordinary zero hours worker. So, going to be interested to see how that detail plays out. I think And this will affect quite a lot of businesses, particularly those in say the hospitality industry which traditionally uses a lot of these zero hours worker contracts. There's going to be consultation on this with employers and trade unions about how these review periods are going to work. And the government have said, it's interesting actually, they said that where they think that the work is genuinely temporary, there's not going to be any expectation on employers to offer these permanent contracts. But I've seen a lot of commentary that suggests that this might encourage businesses to use fixed term contracts more, albeit how that'll interact with the removal of the qualification period for unfair dismissal will be interesting to see.

A separate point actually of interest is that the bill also proposes a right for eligible workers to receive reasonable notice of changes to their working hours. And also a big change, I think, the idea that they can be eligible for compensation if their shift is cancelled or ended early. And there'll be a lot of detail in there then about what is going to trigger this right compensation, what's reasonable notice? All of those sorts of areas are the devil in the detail that you described at the start of the podcast, Amy. But yeah, lots of changes here, aren't there?

Amy: There are really. And as you mentioned, the details quite significant there, and there's going to be a lot more discussion in relation to it. And it seems really complicated as one of the most complicated reforms that we've looked at when we've worked through it. Do we think it's really going to achieve what the government's aims are on zero -hours contracts and the exploitative nature of them. What's your view on that, Charlie?

Charlie: Yeah, I mean, these are really complicated rules. It made my head hurt trying to get my understanding of what's going to be proposed and how the detail will be played out. I've seen loads of articles that go on for quite some time examining the what -ifs and the suggestion that there's going to be quite a few unintended consequences. So What we think might happen is that employers might be less likely to offer zero or low hours contracts or might offer fewer shifts to those on those contracts in order to avoid the prospect of then having to offer guaranteed hours contracts that might not reflect a pattern that they can then fulfil.

Equally, there's lots of areas of concern about seasonal contracts, those that work in agriculture or in hospitality, where there are seasonal fluctuations. It's not clear how these rules are gonna address the prospect that there could be peaks and troughs in work. And so if an individual is entitled to say, well, I want my guaranteed hours contract to reflect that peak time. And yet then the business might not be able to fulfil it. So, the impact is gonna, I think, depend on how some of these key details get consulted on and what the government decided to do in respect of them. Things like what's the definition of a low hour is going to be, what's the regularity of hours required, what's the level of compensation for a breach of the advanced notice duty. A lot of the detail isn't there yet, but for businesses that use zero hours contracts, this I think will be a big change.

Amy: The drafts people are going to have a good time with that one, aren't they. So, yeah, watch this space, I think, on that one.

Charlie: Agreed.

Amy: So, moving on to the next reform, which is the reforms to the sexual harassment, the duty to prevent sexual harassment. We had a new duty which came in on the 26th of October. And the new duty is that the employer will take reasonable steps to prevent sexual harassment in the workplace and what the reform is doing is proposing to change that to take all reasonable steps rather than just taking reasonable steps. So, it's the inclusion of the word "all" which is important here as well.

The new duty might include things like carrying out assessments, publishing plans or policies, reporting sexual harassment and handling complaints, but actually it's a much higher bar than the current duty that we're dealing with at the moment, so that's quite an important... There were previously going to include it as all reasonable steps, and then they removed the ‘all’, and then obviously now they're proposing to add that back in again. It's amazing what a small single word can do in the circumstances to increase the duty so significantly. In addition to that, they're also talking about reintroducing a duty to prevent third -party harassment. That was a previous duty that we had a few years ago and then it was repealed and they're talking about bringing that in. Whether that's a duty to take all reasonable steps to prevent third -party harassment or just to take reasonable steps remains to be seen and is subject to consultation.

This is going to have a real impact, particularly in the leisure and hospitality industry where you're working with customers potentially under the influence of alcohol and things like that as well, it's going to be quite a tricky duty to comply with and I think that was part of the reason why it was repealed previously. So that's certainly an important point and a takeaway, I think, from that element of the bill. And then in addition to that, the reforms provide that disclosures relating to sexual harassment will be protected as qualifying whistleblowing disclosures.

Currently, they're not specifically protected in that way. It would have to fall normally under kind of victimization elements, but actually they're talking about increasing that and including it in a whistleblowing disclosure as well.

Charlie: Interesting, those aren't they Amy? I think, and in fact, it reminds me that we were talking only the other day about what our experience was of our clients preparing for the duty that came in only a few weeks ago to take reasonable steps to prevent sexual harassment. And what do you think about whether this change will alter the approach we've seen our clients taking so far?

Amy: Yes, it's interesting, really. Obviously, it's quite a surprise that suddenly it's brought back in again when the duty was only imposed a few weeks ago, really. And we've had a real wide change of how clients are prepared for this. Some have introduced training, have taken it extremely seriously, looked at their policies, reporting processes, all that kind of stuff. So they are essentially taking all reasonable steps already because of all of the different elements that they put in. And then other clients are quite comfortable with the current processes that they have in place. They've done very little. It's passed them by a little bit as well. I think that actually potentially that's part of the reason for reintroducing the all -reasonable steps piece, actually, to ensure that employers do take positive, proper positive steps in order to prepare for this, and I think that it will focus the mind, I think, in relation to what employers are doing there.

Certainly, it's going to increase the potential for employment tribunal claims, particularly with the whistleblowing piece, although question whether that's already protected in a different way. But certainly the third party harassment side in the hospitality industry, there has been some concern in relation to that already and it's a real hot topic about how that extension of the duty will be managed by those types of employers.

Charlie: Yeah, okay, no interesting stuff. And another change that we wanted to have a look at is the proposed changes to the Right to request flexible working. Many of our listeners will know that at the moment Employees can make a flexible working request up to two times per year and that the employee would have to deal with that request reasonably and Can then potentially refuse the request if they decide that that's what they want to do for one of those eight reasons Which are pretty wide reasons as we know The proposal here is that the government wants to try and tighten up what the rules say about refusing a request and the proposal is that employers would be able to refuse a flexible working request on specified grounds, which are the same grounds that we currently have actually, but that they'd only be able to do so if it was reasonable to rely on that ground and that in addition an employer would need to explain in writing to the employee, why their refusal is reasonable in the employer's view. So more narrow changes there, I think, to this.

Amy: Yeah, Is there much change here at all? What do you think, Charlie? I don't know.

Charlie: Yeah, it's a fair question. I think what we probably remember is that the government, when they were talking about this change prior to the election, we're using phraseology along the lines of that they wanted to make flexible working the default position for all and that only if an employer could prove that it's an unreasonable request could they get out of the obligation to allow a flexible working request. I mean, the argument I've been reading about is that the bill doesn't really go as far to do to do that at all. As all of these things are, it's subject to consultation. If all we're going to see is an adding of the requirement that the reason has to be reasonable and has to be expressed as to why that's reasonable, but it's based on the same grounds and the same obligation to follow it reasonably as a process and the same potential compensation. Ultimately, it might just ball down to employers just need to give clearer reasons as to why they're turning it down. So a lot of the talk prior to the election was about how they're going to introduce a right to a four -day working week. I saw that narrated quite a bit and this certainly doesn't get anywhere near that. So yeah, to your question, is there a lot of change here? Probably not on this one.

Amy: So, I'm now going to move on to my next one, and I think you need to strap yourselves into this one because this is trade union reforms now, and there's quite a lot to go. We could have done the whole podcast on this really, so what I'm aiming to do really is just take you through the headlines of that and then talk about the key impact and insights that this proposed reform might have. So there are several provisions that have been badged as empowering workers to organised collectively through trade unions. And essentially, the Labour government are badging in the press that this is removing the red tape on trade union activity. So just to give you a little bit of the detail, and I think it's important that you understand this, is that they are intending on repealing much of the trade union act from 2016. And this includes, importantly, the requirements for at least 50 % of union members to participate in a ballot for industrial action for that industrial action to then be legal. They're also talking about repealing the requirements for 40% support amongst union members to proceed with industrial action in vital public services. And then this is a key one, reducing the notice for that needs to be given for industrial action from 14 days, which is what it is currently, once there is a successful ballot and they need to give 14 days notice of any actual strike action, they've been talking about reducing that down to seven days, so not a lot of time there at all for businesses to prepare for industrial action.

And then also kind of linked to that, they are talking about currently there is a six month mandate in place, so where there is a successful ballot for strike action, that mandate remains in place for six months. That's in consultation to increase it to a 12 -month period. So if there is a dispute, they could potentially call for strike action any time in 12 months rather than six at the moment.

So in addition to that, they're also looking at repealing the Strikes Minimum Service Act, and that was introduced not that long ago actually, to mitigate industrial action and the effect on critical sectors such as health services, education, transport, etc. And then in addition to that, there's some other reforms that I wanted to pull out. The first is that they are going to require employers to notify new employees of their right to join a union and regularly remind them of that. In addition, granting unions, and I think this is quite an important one, so granting unions the right to request workplace access to both recruit and organise, so that's not where there is a recognised trade union, that's any union can request right to a workplace. Currently they can't actually access that, they have no right of access, but they're talking about introducing the right to request, I think it's important to request that as well. And then they're also talking about simplifying the statutory recognition process, so statutory recognition of a trade union by removing the requirement for unions to secure backing of at least 40 % of the workforce in the bargaining unit in order to start that process.

The government have said that they are committed to a for consultation on this and actually that's already started and is one of the ones that's already started as well so I think that the general consensus is actually the trade union reform is going to be one of the first elements of the bill that will be introduced along with fire and rehire, just because I think that's a key part of the labour manifesto, obviously, with them being back for it so heavily by the trade unions. I think the key point here is the real impact that this is going to have on businesses. So whilst the collective voice of employees is of course important and a number of the employers that work with and focus heavily on maintaining positive industrial relations.

There is a concern that the repeal, in particular of the Trade Union Act, the reduced notice period for strikes, that could actually hinder employers' ability to manage effectively during a period of strike or industrial action. And the minimum service levels as well being repealed, there's all sorts of chatter and I've seen both sides of this in relation to that, about whether it's going to increase the burden on the public and employers and all this kind of stuff. But actually, when it was introduced, it was deeply unpopular and the consensus was, and the CIPD actually put forward a point on this as well, that they actually thought that the Minimum Services Act damaged the relationship between employers and unions as well and created this mistrust. And also, it was really of in terms of which employees were to provide that minimum service and all that kind of stuff. So it was actually quite unpopular really.

Charlie: A lot to get our heads around there, isn't there? I wonder whether employers that do unions a bit, but not a lot, but whether that's going to have quite an impact on them if all of these changes are made. There'll be a lot to change in their approach.

Amy: You're absolutely right, Charlie. And I think that that's, We have these clients, don't we, that regularly deal with unions, and I do a lot of work in the union field. That's kind of my specialism, but I think that the key thing is those smaller employees that are not unionized already, the right of access for trade unions to recruit, it's certainly going to lead to further requests for recognition.

And actually, because it's really unknown that some of these are smaller employees. There's a real kind of reluctance to engage with unions. There's a there is a lot of concern that surrounds that. And actually, if it is looking, and I do think that going forward, if these proposals are implemented, because of the how much easier it will be to obtain statutory recognition, there is a piece for employees that are approaching that process of statutory recognition to look at a voluntary arrangements in place, so doing a bit of work in terms of kind of trying to work with unions already, or actually implementing staff representative organisations and working more effectively with them as well, just to ensure that there is engagement and looking at it in a positive way. And just a kind of closing point on this. For those employers who have heavily unionised workforces, a lot of the clients that we work with at the moment are looking at their contingency plans for dealing with industrial action, what those might look like, because undoubtedly this is going to lead to more industrial action if it is implemented. So considering now kind of comms strategies for that, what you'll do, how you'll manage it, all that kind of stuff as well, I think is a really key takeaway from this one.

Charlie: Yeah, there are big changes there. An ally to engaging with unions actually, our seventh highlight is about collective redundancy consultation. And many of us will remember, gosh, it was it's almost 10 years ago now, the decisions in the Woolworth case when Woolworths became insolvent.

And as part of the redundancy consultation exercise, each store was deemed to be treated as a separate establishment, which meant that employees who were employed in a store that had fewer than 20 employees weren't entitled to a redundancy protective award. We've lived with that position ever since so that redundancies at an establishment are what might trigger the potentially 20 or more up to 99 and then when you get beyond 100 you're into a 45 -day consultation rather than the 30 -day consultation that applies when you're under 100. So that's the position we've left with since the Woolworth decision and that we've abided by.

So the proposal is going to remove the requirement that redundancies need to be at one establishment in relation to the duty to consult representatives and the duty to notify the Secretary of State. And what it will mean is that employers who are making redundancies, and we remember that the definition of redundancy goes beyond just the pure definition of redundancy under the Employment Rights Act, so it could encapsulate, say, any changes to terms and conditions, subject to what you were talking about earlier, Amy, and that they're going to need to top up the numbers of employees who are affected by these proposals over a rolling 90 -day period. And if they trigger the 20 or more, then that would trigger the obligation to carry out the collective consultation requirements. So a big change for employers, this is already subject to consultation as we do this podcast that opened on the 21st of October.

It goes on to ask for views on increasing the maximum protective award from the current 90 days up to 180 days, or even to removing it altogether, which would be a massive change from what we've been used to in this sphere. In addition, there's this suggestion that an employee or employees, as might well be the case, in a collector situation, might be able to apply for an interim relief application that would give them the right to continue to be paid until their case is heard, which at current rates could well be, say, a year or even more hence. So big changes here in this area.

Amy: There really are and it's just picking up on one of the points that you made about the protective award. It's the only compensation award which is punitive in nature. Everything else is based on losses or injury to feelings or something like that and employment tribunals, but so increasing it is going to have a significant impact and removing it all together. I don't even know where you would start with that.

Charlie: It is, I completely So that would be a profound change and a much bigger risk to employers if, say, the protected award was uncapped and not subject to a limit. I mean, it already can tot up to quite a big number, and as you say, being a putative award, they tend to say, well, we'll start at the top of the range and reduce it if we think you've done things that And, you know, it can actually, when you're looking at the numbers involved, it can be quite a big liability for businesses. And what I can see is that this is going to just create potential more banana skins for businesses if they're going to have to look at 90 -day rolling periods.

You take a multiple site larger business, they're going to need to look potentially across their whole business and see whether they trigger the numbers. And a lot of businesses might not have the systems in place to ensure that that gets picked up all the time. So big changes would be needed for businesses if this is what happens.

Amy: Absolutely. And I don't think, I like the use of the word banana skins, by the way, Charlie, that certainly we should use that more often is that it's creating more banana skins for businesses. But yeah, interesting point and probably something that's not going to be that welcomed by employers, I would say potentially either. Yeah, like a few of the changes we're describing, that this is not one that employers are likely to find very welcome.

Amy: No, just a couple of kind of notes to point. So, the eighth one that we've picked out is actually the single enforcement body. We don't have a lot of information on this, we just thought it was quite interesting. And so, what they're allowing, the bill allows for the establishment of a new fair work agency. And what this is going to do is enable enforcement of labour market legislation, which includes legislation relating to holiday pay and SSP by the Secretary of State. It's anticipated that this agency is going to bring together all the different government agencies and enforcement bodies with the aim to create what they say is a stronger, recognizable single organization that people know where to go to for help. And just to point just an observation on this really, it talks about people to know where to go to help.

And obviously they mean employers there and they're looking at kind of enforcement of different elements of it. But actually also from our perspective kind of feeding into the consultation, looking at whether there should be better support for employers as well, particularly smaller employers who really want to comply with the law. And it's very complicated. There's lots of banana skins, as Charlie mentioned before, but actually ensuring that they have the assistance where they want to have that compliance to actually work with them. So, we very much welcome the single enforcement body, but actually looking at it from a kind of wider perspective so that all stakeholders who will engage with them are properly involved because it's not always the case at the moment with some of the enforcement bodies that we have currently.

Charlie: Yeah and let's look at our ninth highlight which is some of the day one leave rights and the new bereavement leave entitlements. So the plan is that the government wants to remove the qualifying period for unpaid parental leave which presently is that eight weeks entitlement to leave up to a child's 18th birthday and the two week statutory paternity leave rights. The idea is that they will make those day one rights for employees. And in addition to that, another point to flag is the new day one right to bereavement leave. So this is any employee that's going to be bereaved. And the current thinking is that it would be up to two weeks bereavement leave paid at statutory rates. If it's a child that the individual is bereaved for and one week if it's not a child. So we'll need to get more detail around this. The relationship, for example, with the deceased isn't clear at the moment and things like, you know, how to exercise the right to the entitlement or no doubt be fleshed out in regulations as time goes on. But some changes there that I So, some of the clients that we work with already allow some of those rights in a more enhanced way than they already existed. That might not be seen as a big change for many businesses.

Amy: Yeah, I think you're right there, Charlie. It kind of reflects the direction of travel that we're seeing at the moment, aren't we, in terms of kind of support for employees and all that kind of stuff as well, certainly. I don't think that's going to be one of the biggest changes out of all of the bills.

So, The final takeaway that Charlie and I had from the bill is actually what's not in the bill. It's not an element of it, it's what wasn't there. And I think we've touched on a couple of these already in terms of the kind of fire and rehire and zero hours, we expected there to be more in relation to that than they actually ended up being as well. But also in relation to that, and alongside the bill, there was a next steps document which had been published and outlined, amongst other things, how the government was going to deal with the promises that it made in its manifesto that have not been covered off in the bill.

So just to pick out a couple of those things that weren't in there and how they're going to be dealt with. And the first one is this right to switch off, the right to disconnect, which is another one that's hit the press. And obviously, I think it's the French, isn't it, Charlie, that they have this right to disconnect as well currently so kind of following on from what they had introduced and what this means essentially is that employees are prevented from being contacted out of hours and they're talking about introducing that still but by way of a statutory code of practice, so slightly different in terms of how that will be introduced. And then the much anticipated and very important element that relates to the Equality, Race and Disability bill. And what that is, is that we'll make it mandatory for large employees to report on their ethnicity and disability pay gaps, much in the same way as they already have to report on their gender pay gaps, which I think is a welcome addition in there as well. And they're also starting a consultation, they're committed to starting a consultation on a move towards the single status of worker and talking about transitioning towards a simpler two -part framework for employment status.

This has been in discussion for years and years now because employment status is super complicated, overly complicated. The legislation isn't fit for purpose. It's confusing for everybody involved in it and kind of links with all the zero hours stuff and all these other bits as well. I do wonder whether that was kind of put into the too hard box. They were rushing to get through the parts of the bill, they were rushing to get through all of that. And potentially that was put into a bit of a too hard box, I'm not sure, really. Certainly something that requires further consideration, along with reviewing the TUPE legislation as well, which has been in discussion really since Brexit, so that's quite an important element that needs some exploration and there will be a consultation on those.

Charlie: Gosh, so that's our 10, isn't it, isn't it Amy? We could have picked another 10 if we'd wanted to talk about because there's so much in the bill. It was being trailed as the biggest reform to employment rights in a generation and I think it's fair to say it probably meets that brief, doesn't it?

There's so much in there that's being proposed as new ways of interpreting a lot of the existing and new rights. So one of the things that I think you and I have both said, haven't we, is that the likelihood is this is going to place an increased strain on the Employment Tribunal Service and on ACAS, and it's unclear how an already stretched service is going to be able to cope with

what's likely to be an increase in demand, isn't it?

Amy: Yeah, absolutely, Charlie. I mean, just to put it into context, I has a hearing listed in one of the London tribunals who are particularly overwhelmed at the moment. It was listed last week and that was listed for March 2027. It's a 15 -day hearing, so it's a long hearing, but the dismissal took place in 2021. So, it's just a huge amount of time and it's in no one's interest in those circumstances, not the employee, not the employer. Nobody involved in that process for things to take so long to get to a conclusion. So, we've already got a hugely overwhelmed tribunal system, so it'd be interesting to see what funding is proposed to the system to support them in dealing with the undoubtedly significant load that they will be having to deal with as part of that.

Whether the single enforcement body will have some kind of involvement in that for certain types of enforcement of rights they might be taken away from the tribunal and put into that, we don't know. Again, over to consultation, it'd be interesting to see what happens with that. But certainly, there's additional work to be done on the periphery to ensure that this bill, if it's going to be the biggest shake -up, then it needs to have a system that reflects that as well. So the enforcement piece is really important and making sure that's fit for purpose.

Charlie: Yeah, no, that's a definite case of watch this space. And I think there's many people that might be a bit worried about the extent to which the system can cope. Anyway, let's wrap up because we've covered a lot here and I think our only reminders and maybe main takeaways are we don't know when these changes are going to take place. We're expecting them to be in 2026. So, what that means is employers, businesses, employees have got time to adjust to what's coming down the path and there's going to be a lot of consultations we think next year into 2025. That will put a lot of flesh on the bone.

That will pick out a lot of the points that we've been covering in some of the topics we've talked about today. So I think we'd encourage all of our clients and contacts to keep an eye on the developments. We at TLT will certainly be updating through our regular updates and through these podcasts on any of the changes that we see starting to take shape in due course. If you don't, subscribe to our updates. There's a note notes on this podcast as to how you can do so if you wish to. But other than that, thanks for listening. Amy and I have enjoyed chatting through all of these 10 topics today and we'll look forward to hopefully have you as a listener on our next series of these podcasts.

Amy: Yeah, thanks very much. See you at the next one.

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Labour's Employment Rights Bill
4 dec· Employment Law Focus
Amy: Hello and welcome to the Employment Law Focus podcast. I'm Amy Stokes.
Charlie: And I'm Charlie Ray
Amy: and we're both employment law partners at TLT and today we're going to be discussing the Employment Rights Bill and well all 150 pages of it, well not quite but what we've done is we have discussed amongst ourselves Charlie and I and pulled out our top 10 takeaways from it.
By way of background, this was introduced to Parliament on the 10th of October and is the first phase of delivering the government's plan to make work pay. It brings in 28 individual employment law reforms. And the bill is a wish list of reforms, and it builds in some of the labour manifesto but a watered down version so it's not quite set in stone.
Despite the headlines in the papers, it's a while before any of these changes are going to happen. Much of the details are going to be provided via regulations which won't be passed until consultation with stakeholders has concluded. Four of those consultations were very quickly turned around and have actually already started. Those include on zero hours contracts and their application to agency workers, beefing up the remedies for collective redundancy consultation, all the updates to trade union legislation and also statutory sick pay.
The government doesn't expect to start consultation however for the rest of the reforms until 2025, with the result that most reforms in the bill will not take place until we anticipate at least 2026, although there's been no commitment on that just yet. The bills also got to go through both houses of parliament before it gains royal assent and therefore may be changed along the way after the consultations as well.
So the bottom line is really that the proposals in the bill might well change and employers are going to have plenty of time to feed into the proposals and to prepare for them.
What Charlie and I have done to prepare for this podcast today is that we've picked out what we think are the most interesting elements of the bill, the reforms to the bill, primarily to employers. And we're going to run through them, not in the order of importance, just kind of in a more general order, just to give you a flavour of what they are. So, we'll talk through the background to them, the detail of the reforms, to give you a bit of an explainer on those. And then we're going to give you some of our insights from practice about what we think the real impact of those are going to be.
So, Charlie, do you want to kick us off with your first one?
Charlie: Yeah, we're going to start with probably what's been the main headline grabber from the bill, which is the proposal to remove the unfair dismissal qualifying period. Now, as we know, at the moment, we've had for some time a two -year qualifying period to be able to claim ordinary unfair dismissal. That doesn't take into account automatic unfair dismissals like whistleblowing, for example, where you don't need the two-year service, but for most unfair dismissal claims, two years service is required.
So the idea is that it's going to become a day one right, and that so long as you started work from day one, you will have the right to claim unfair dismissal. The government are proposing to consult on introducing a new statutory probation period. So, the idea is that during that probation period, an employee could be dismissed using a lighter touch process, where if the dismissal is because of capability, or conduct, or contravention of illegal duty, or potentially for some other substantial reason, which are all reasons that we're familiar with now, that that would be a valid reason for an employer to terminate at the end of this probation period.
We need some detail on this, obviously, and one suggestion is that a redundancy dismissal wouldn't be subject to this lighter touch dismissal as a result of the statutory probation period. So it will be interesting to see how that one plays out. The suggestion is that the government's preference is to have a nine -month probation period in this so -called initial period of employment and I think the indication is that they would expect an employer to at least hold a meeting with the employee to explain the concerns about say their performance if that's the reason before making a decision to dismiss. So, it's going to be interesting to see how the government will develop that.
Amy: Yeah it's really interesting actually Charlie, I think that there's going to be the consultation on that's going to bring out some interesting points. But actually, it sounds like it's going to have a really big impact on employers. What do you think in practice that's really going to be?
Charlie: Certainly one of the implications is likely to be that more litigation may follow as a result of widening out the net to who it covers. I saw a statistic that suggests that this will grant unfair dismissal rights to another 9 million employees. So, straight away, the prospect of litigation is going to be increased. There's a question that I've seen floated as to how long an employer would need to be able to make a decision about whether an employee should stay in the role beyond this initial employment period.
And nine months, is that long enough? I think many employers would probably be hard pressed to think that nine months isn't long enough to make a decision about whether an employee is suitable for their role. What I think it will be in practice is that employers are going to have to tighten up their processes.
I mean, many employers at the minute do follow quite good probationary review processes where issues that might lead to an employee failing their probation period are flagged in good time and discussed, and therefore no surprise to the employee if they fail their probation period as a result of it. But not all employers do that.
And so, I think if you're going to take advantage of this new statutory probation period, it's going to mean employers have to tighten up their processes in handling probation reviews and probation decisions. I think it's also going to mean employers are going to need to ensure that they follow their redundancy processes in all cases because of the suggestion that redundancies wouldn't be part of this probationary review dismissal option. So, yeah, I think it's going to be quite a big change for employers this, if it comes in the way suggested. So, yeah, keep your eye on that one.
Amy: Yeah, and plenty of time to plan as well. I think that's a key point. As you say, some employers are already utilizing probation periods pretty well. So actually looking at that and expanding that practice more widely, I think is important. So, Thanks, Charlie.
So the first one from me moving on is the very hotly anticipated reform in relation to fire and rehire. It gets all the headlines that the way that it's been described. It's hit the press enormously given the large scale and perceived abuse of this by some employers. And so just to explain, firing rehire is essentially a tool, and actually in some cases a very useful tool, that employers use to change terms and conditions in the event that employees won't agree to those through a consultation process.
Importantly, the employees retain their continuous service, so that's the rehire piece. It's not just fire, it's rehiring the retain that continuous service. And it's often after a consultation period with unions or staff reps, and in my experience, and I'm sure yours as well, Charlie, it's very much used as a last resort. It was to be banned initially but then Labour realised that if they only addressed fire and rehire businesses are simply just going to fire employees and then rehire different employees which is what P &O Ferries did and that was all over the press as well.
What the bill proposes is that dismissals for refusing to agree to a variation will be automatically unfair where either the employee or another employee will be re -employed or employed to carry out substantially the same work. An exception there is going to be where essentially a business is on its knees and about to fall over. And so to use the proper term for that, it's where the employee can show evidence of financial difficulties, which or carry on the activities of the business and that in all of the circumstances, it could not avoid the need to make the variation.
Charlie: Yeah, I mean, what do we make of that defence, Amy? Is that going to be a way, do we think, of keeping in the right to fire and rehire through the back door or is it going to be difficult to meet that defence? What do we think?
Amy: Yeah, it's an interesting one. So, we thought that this would be a complete ban on it, and they
obviously introduced that defence. And the financial difficulties defence seems quite a hard one to run, given that an employer essentially needs to show that in all of the circumstances, the employer could not reasonably have avoided the need to make that variation. So they're going to need to be in some serious financial difficulty to satisfy that test, so in liquidation or in solvency.
So I think it's going to be really narrow, but I think the important kind of take away from this is, as I mentioned at the beginning, this does fall short of a total ban on fire and re-hire hire, which is what Labour had initially committed to do. However, it may as well be a ban with the enormously high bar that's been set to that exception. As we say with all of these, the devil's going to be in the detail. And I do think that these provisions will be contested by some employees in the consultation, there certainly needs to be a bit more clarification given on that financial difficulties, defence as well. Employers are undoubtedly going to have to produce accounts and all that kind of stuff as well, which would be quite interesting.
Charlie: Yeah, no, it certainly is. And actually, another area that we heard might have been banned is the third topic we're going to look at, which is the ending of exploitative zero hours contracts. And that's the phraseology that was being used by the Labour Party prior to the election, that they wanted to end the use of exploitative contracts that are zero hours ones. And many had speculated that meant they were going to ban them all together. And the bill makes clear that's not what they're planning to do. Instead, what it's going to do is propose to put an obligation on employees to have to offer these so -called guaranteed hours contracts to those who are on mainly zero hours contracts, but also those who are on minimum hours contracts as well to reflect the hours that they're regularly working over a reference period. And we're understanding that reference period is likely to be 12 weeks.
So that's going to be quite an interesting change for employers that use zero hours contracts, that the stats show over a million individuals are engaged on these type of contracts in the UK. So, it'll affect a lot of people. The idea of this offer is one that the worker wouldn't have to accept it. So what we might find, and this is where some of the detail will be quite interesting, is that if hours become more regular over time or increase over time, whether subsequent reference periods are going to mean that the workers are going to have the chance to be offered, again, the opportunity to have one of these guaranteed hours contracts reflecting what they might think is a better offer and is there going to be this ongoing obligation to update offers?
I guess the expectation is that if the offer is then accepted that then they go on to one of these guaranteed hours contracts and they're no longer on the same basis that they were prior to that as an ordinary zero hours worker. So, going to be interested to see how that detail plays out. I think And this will affect quite a lot of businesses, particularly those in say the hospitality industry which traditionally uses a lot of these zero hours worker contracts. There's going to be consultation on this with employers and trade unions about how these review periods are going to work. And the government have said, it's interesting actually, they said that where they think that the work is genuinely temporary, there's not going to be any expectation on employers to offer these permanent contracts. But I've seen a lot of commentary that suggests that this might encourage businesses to use fixed term contracts more, albeit how that'll interact with the removal of the qualification period for unfair dismissal will be interesting to see.
A separate point actually of interest is that the bill also proposes a right for eligible workers to receive reasonable notice of changes to their working hours. And also a big change, I think, the idea that they can be eligible for compensation if their shift is cancelled or ended early. And there'll be a lot of detail in there then about what is going to trigger this right compensation, what's reasonable notice? All of those sorts of areas are the devil in the detail that you described at the start of the podcast, Amy. But yeah, lots of changes here, aren't there?
Amy: There are really. And as you mentioned, the details quite significant there, and there's going to be a lot more discussion in relation to it. And it seems really complicated as one of the most complicated reforms that we've looked at when we've worked through it. Do we think it's really going to achieve what the government's aims are on zero -hours contracts and the exploitative nature of them. What's your view on that, Charlie?
Charlie: Yeah, I mean, these are really complicated rules. It made my head hurt trying to get my understanding of what's going to be proposed and how the detail will be played out. I've seen loads of articles that go on for quite some time examining the what -ifs and the suggestion that there's going to be quite a few unintended consequences. So What we think might happen is that employers might be less likely to offer zero or low hours contracts or might offer fewer shifts to those on those contracts in order to avoid the prospect of then having to offer guaranteed hours contracts that might not reflect a pattern that they can then fulfil.
Equally, there's lots of areas of concern about seasonal contracts, those that work in agriculture or in hospitality, where there are seasonal fluctuations. It's not clear how these rules are gonna address the prospect that there could be peaks and troughs in work. And so if an individual is entitled to say, well, I want my guaranteed hours contract to reflect that peak time. And yet then the business might not be able to fulfil it. So, the impact is gonna, I think, depend on how some of these key details get consulted on and what the government decided to do in respect of them. Things like what's the definition of a low hour is going to be, what's the regularity of hours required, what's the level of compensation for a breach of the advanced notice duty. A lot of the detail isn't there yet, but for businesses that use zero hours contracts, this I think will be a big change.
Amy: The drafts people are going to have a good time with that one, aren't they. So, yeah, watch this space, I think, on that one.
Charlie: Agreed.
Amy: So, moving on to the next reform, which is the reforms to the sexual harassment, the duty to prevent sexual harassment. We had a new duty which came in on the 26th of October. And the new duty is that the employer will take reasonable steps to prevent sexual harassment in the workplace and what the reform is doing is proposing to change that to take all reasonable steps rather than just taking reasonable steps. So, it's the inclusion of the word "all" which is important here as well.
The new duty might include things like carrying out assessments, publishing plans or policies, reporting sexual harassment and handling complaints, but actually it's a much higher bar than the current duty that we're dealing with at the moment, so that's quite an important... There were previously going to include it as all reasonable steps, and then they removed the ‘all’, and then obviously now they're proposing to add that back in again. It's amazing what a small single word can do in the circumstances to increase the duty so significantly. In addition to that, they're also talking about reintroducing a duty to prevent third -party harassment. That was a previous duty that we had a few years ago and then it was repealed and they're talking about bringing that in. Whether that's a duty to take all reasonable steps to prevent third -party harassment or just to take reasonable steps remains to be seen and is subject to consultation.
This is going to have a real impact, particularly in the leisure and hospitality industry where you're working with customers potentially under the influence of alcohol and things like that as well, it's going to be quite a tricky duty to comply with and I think that was part of the reason why it was repealed previously. So that's certainly an important point and a takeaway, I think, from that element of the bill. And then in addition to that, the reforms provide that disclosures relating to sexual harassment will be protected as qualifying whistleblowing disclosures.
Currently, they're not specifically protected in that way. It would have to fall normally under kind of victimization elements, but actually they're talking about increasing that and including it in a whistleblowing disclosure as well.
Charlie: Interesting, those aren't they Amy? I think, and in fact, it reminds me that we were talking only the other day about what our experience was of our clients preparing for the duty that came in only a few weeks ago to take reasonable steps to prevent sexual harassment. And what do you think about whether this change will alter the approach we've seen our clients taking so far?
Amy: Yes, it's interesting, really. Obviously, it's quite a surprise that suddenly it's brought back in again when the duty was only imposed a few weeks ago, really. And we've had a real wide change of how clients are prepared for this. Some have introduced training, have taken it extremely seriously, looked at their policies, reporting processes, all that kind of stuff. So they are essentially taking all reasonable steps already because of all of the different elements that they put in. And then other clients are quite comfortable with the current processes that they have in place. They've done very little. It's passed them by a little bit as well. I think that actually potentially that's part of the reason for reintroducing the all -reasonable steps piece, actually, to ensure that employers do take positive, proper positive steps in order to prepare for this, and I think that it will focus the mind, I think, in relation to what employers are doing there.
Certainly, it's going to increase the potential for employment tribunal claims, particularly with the whistleblowing piece, although question whether that's already protected in a different way. But certainly the third party harassment side in the hospitality industry, there has been some concern in relation to that already and it's a real hot topic about how that extension of the duty will be managed by those types of employers.
Charlie: Yeah, okay, no interesting stuff. And another change that we wanted to have a look at is the proposed changes to the Right to request flexible working. Many of our listeners will know that at the moment Employees can make a flexible working request up to two times per year and that the employee would have to deal with that request reasonably and Can then potentially refuse the request if they decide that that's what they want to do for one of those eight reasons Which are pretty wide reasons as we know The proposal here is that the government wants to try and tighten up what the rules say about refusing a request and the proposal is that employers would be able to refuse a flexible working request on specified grounds, which are the same grounds that we currently have actually, but that they'd only be able to do so if it was reasonable to rely on that ground and that in addition an employer would need to explain in writing to the employee, why their refusal is reasonable in the employer's view. So more narrow changes there, I think, to this.
Amy: Yeah, Is there much change here at all? What do you think, Charlie? I don't know.
Charlie: Yeah, it's a fair question. I think what we probably remember is that the government, when they were talking about this change prior to the election, we're using phraseology along the lines of that they wanted to make flexible working the default position for all and that only if an employer could prove that it's an unreasonable request could they get out of the obligation to allow a flexible working request. I mean, the argument I've been reading about is that the bill doesn't really go as far to do to do that at all. As all of these things are, it's subject to consultation. If all we're going to see is an adding of the requirement that the reason has to be reasonable and has to be expressed as to why that's reasonable, but it's based on the same grounds and the same obligation to follow it reasonably as a process and the same potential compensation. Ultimately, it might just ball down to employers just need to give clearer reasons as to why they're turning it down. So a lot of the talk prior to the election was about how they're going to introduce a right to a four -day working week. I saw that narrated quite a bit and this certainly doesn't get anywhere near that. So yeah, to your question, is there a lot of change here? Probably not on this one.
Amy: So, I'm now going to move on to my next one, and I think you need to strap yourselves into this one because this is trade union reforms now, and there's quite a lot to go. We could have done the whole podcast on this really, so what I'm aiming to do really is just take you through the headlines of that and then talk about the key impact and insights that this proposed reform might have. So there are several provisions that have been badged as empowering workers to organised collectively through trade unions. And essentially, the Labour government are badging in the press that this is removing the red tape on trade union activity. So just to give you a little bit of the detail, and I think it's important that you understand this, is that they are intending on repealing much of the trade union act from 2016. And this includes, importantly, the requirements for at least 50 % of union members to participate in a ballot for industrial action for that industrial action to then be legal. They're also talking about repealing the requirements for 40% support amongst union members to proceed with industrial action in vital public services. And then this is a key one, reducing the notice for that needs to be given for industrial action from 14 days, which is what it is currently, once there is a successful ballot and they need to give 14 days notice of any actual strike action, they've been talking about reducing that down to seven days, so not a lot of time there at all for businesses to prepare for industrial action.
And then also kind of linked to that, they are talking about currently there is a six month mandate in place, so where there is a successful ballot for strike action, that mandate remains in place for six months. That's in consultation to increase it to a 12 -month period. So if there is a dispute, they could potentially call for strike action any time in 12 months rather than six at the moment.
So in addition to that, they're also looking at repealing the Strikes Minimum Service Act, and that was introduced not that long ago actually, to mitigate industrial action and the effect on critical sectors such as health services, education, transport, etc. And then in addition to that, there's some other reforms that I wanted to pull out. The first is that they are going to require employers to notify new employees of their right to join a union and regularly remind them of that. In addition, granting unions, and I think this is quite an important one, so granting unions the right to request workplace access to both recruit and organise, so that's not where there is a recognised trade union, that's any union can request right to a workplace. Currently they can't actually access that, they have no right of access, but they're talking about introducing the right to request, I think it's important to request that as well. And then they're also talking about simplifying the statutory recognition process, so statutory recognition of a trade union by removing the requirement for unions to secure backing of at least 40 % of the workforce in the bargaining unit in order to start that process.
The government have said that they are committed to a for consultation on this and actually that's already started and is one of the ones that's already started as well so I think that the general consensus is actually the trade union reform is going to be one of the first elements of the bill that will be introduced along with fire and rehire, just because I think that's a key part of the labour manifesto, obviously, with them being back for it so heavily by the trade unions. I think the key point here is the real impact that this is going to have on businesses. So whilst the collective voice of employees is of course important and a number of the employers that work with and focus heavily on maintaining positive industrial relations.
There is a concern that the repeal, in particular of the Trade Union Act, the reduced notice period for strikes, that could actually hinder employers' ability to manage effectively during a period of strike or industrial action. And the minimum service levels as well being repealed, there's all sorts of chatter and I've seen both sides of this in relation to that, about whether it's going to increase the burden on the public and employers and all this kind of stuff. But actually, when it was introduced, it was deeply unpopular and the consensus was, and the CIPD actually put forward a point on this as well, that they actually thought that the Minimum Services Act damaged the relationship between employers and unions as well and created this mistrust. And also, it was really of in terms of which employees were to provide that minimum service and all that kind of stuff. So it was actually quite unpopular really.
Charlie: A lot to get our heads around there, isn't there? I wonder whether employers that do unions a bit, but not a lot, but whether that's going to have quite an impact on them if all of these changes are made. There'll be a lot to change in their approach.
Amy: You're absolutely right, Charlie. And I think that that's, We have these clients, don't we, that regularly deal with unions, and I do a lot of work in the union field. That's kind of my specialism, but I think that the key thing is those smaller employees that are not unionized already, the right of access for trade unions to recruit, it's certainly going to lead to further requests for recognition.
And actually, because it's really unknown that some of these are smaller employees. There's a real kind of reluctance to engage with unions. There's a there is a lot of concern that surrounds that. And actually, if it is looking, and I do think that going forward, if these proposals are implemented, because of the how much easier it will be to obtain statutory recognition, there is a piece for employees that are approaching that process of statutory recognition to look at a voluntary arrangements in place, so doing a bit of work in terms of kind of trying to work with unions already, or actually implementing staff representative organisations and working more effectively with them as well, just to ensure that there is engagement and looking at it in a positive way. And just a kind of closing point on this. For those employers who have heavily unionised workforces, a lot of the clients that we work with at the moment are looking at their contingency plans for dealing with industrial action, what those might look like, because undoubtedly this is going to lead to more industrial action if it is implemented. So considering now kind of comms strategies for that, what you'll do, how you'll manage it, all that kind of stuff as well, I think is a really key takeaway from this one.
Charlie: Yeah, there are big changes there. An ally to engaging with unions actually, our seventh highlight is about collective redundancy consultation. And many of us will remember, gosh, it was it's almost 10 years ago now, the decisions in the Woolworth case when Woolworths became insolvent.
And as part of the redundancy consultation exercise, each store was deemed to be treated as a separate establishment, which meant that employees who were employed in a store that had fewer than 20 employees weren't entitled to a redundancy protective award. We've lived with that position ever since so that redundancies at an establishment are what might trigger the potentially 20 or more up to 99 and then when you get beyond 100 you're into a 45 -day consultation rather than the 30 -day consultation that applies when you're under 100. So that's the position we've left with since the Woolworth decision and that we've abided by.
So the proposal is going to remove the requirement that redundancies need to be at one establishment in relation to the duty to consult representatives and the duty to notify the Secretary of State. And what it will mean is that employers who are making redundancies, and we remember that the definition of redundancy goes beyond just the pure definition of redundancy under the Employment Rights Act, so it could encapsulate, say, any changes to terms and conditions, subject to what you were talking about earlier, Amy, and that they're going to need to top up the numbers of employees who are affected by these proposals over a rolling 90 -day period. And if they trigger the 20 or more, then that would trigger the obligation to carry out the collective consultation requirements. So a big change for employers, this is already subject to consultation as we do this podcast that opened on the 21st of October.
It goes on to ask for views on increasing the maximum protective award from the current 90 days up to 180 days, or even to removing it altogether, which would be a massive change from what we've been used to in this sphere. In addition, there's this suggestion that an employee or employees, as might well be the case, in a collector situation, might be able to apply for an interim relief application that would give them the right to continue to be paid until their case is heard, which at current rates could well be, say, a year or even more hence. So big changes here in this area.
Amy: There really are and it's just picking up on one of the points that you made about the protective award. It's the only compensation award which is punitive in nature. Everything else is based on losses or injury to feelings or something like that and employment tribunals, but so increasing it is going to have a significant impact and removing it all together. I don't even know where you would start with that.
Charlie: It is, I completely So that would be a profound change and a much bigger risk to employers if, say, the protected award was uncapped and not subject to a limit. I mean, it already can tot up to quite a big number, and as you say, being a putative award, they tend to say, well, we'll start at the top of the range and reduce it if we think you've done things that And, you know, it can actually, when you're looking at the numbers involved, it can be quite a big liability for businesses. And what I can see is that this is going to just create potential more banana skins for businesses if they're going to have to look at 90 -day rolling periods.
You take a multiple site larger business, they're going to need to look potentially across their whole business and see whether they trigger the numbers. And a lot of businesses might not have the systems in place to ensure that that gets picked up all the time. So big changes would be needed for businesses if this is what happens.
Amy: Absolutely. And I don't think, I like the use of the word banana skins, by the way, Charlie, that certainly we should use that more often is that it's creating more banana skins for businesses. But yeah, interesting point and probably something that's not going to be that welcomed by employers, I would say potentially either. Yeah, like a few of the changes we're describing, that this is not one that employers are likely to find very welcome.
Amy: No, just a couple of kind of notes to point. So, the eighth one that we've picked out is actually the single enforcement body. We don't have a lot of information on this, we just thought it was quite interesting. And so, what they're allowing, the bill allows for the establishment of a new fair work agency. And what this is going to do is enable enforcement of labour market legislation, which includes legislation relating to holiday pay and SSP by the Secretary of State. It's anticipated that this agency is going to bring together all the different government agencies and enforcement bodies with the aim to create what they say is a stronger, recognizable single organization that people know where to go to for help. And just to point just an observation on this really, it talks about people to know where to go to help.
And obviously they mean employers there and they're looking at kind of enforcement of different elements of it. But actually also from our perspective kind of feeding into the consultation, looking at whether there should be better support for employers as well, particularly smaller employers who really want to comply with the law. And it's very complicated. There's lots of banana skins, as Charlie mentioned before, but actually ensuring that they have the assistance where they want to have that compliance to actually work with them. So, we very much welcome the single enforcement body, but actually looking at it from a kind of wider perspective so that all stakeholders who will engage with them are properly involved because it's not always the case at the moment with some of the enforcement bodies that we have currently.
Charlie: Yeah and let's look at our ninth highlight which is some of the day one leave rights and the new bereavement leave entitlements. So the plan is that the government wants to remove the qualifying period for unpaid parental leave which presently is that eight weeks entitlement to leave up to a child's 18th birthday and the two week statutory paternity leave rights. The idea is that they will make those day one rights for employees. And in addition to that, another point to flag is the new day one right to bereavement leave. So this is any employee that's going to be bereaved. And the current thinking is that it would be up to two weeks bereavement leave paid at statutory rates. If it's a child that the individual is bereaved for and one week if it's not a child. So we'll need to get more detail around this. The relationship, for example, with the deceased isn't clear at the moment and things like, you know, how to exercise the right to the entitlement or no doubt be fleshed out in regulations as time goes on. But some changes there that I So, some of the clients that we work with already allow some of those rights in a more enhanced way than they already existed. That might not be seen as a big change for many businesses.
Amy: Yeah, I think you're right there, Charlie. It kind of reflects the direction of travel that we're seeing at the moment, aren't we, in terms of kind of support for employees and all that kind of stuff as well, certainly. I don't think that's going to be one of the biggest changes out of all of the bills.
So, The final takeaway that Charlie and I had from the bill is actually what's not in the bill. It's not an element of it, it's what wasn't there. And I think we've touched on a couple of these already in terms of the kind of fire and rehire and zero hours, we expected there to be more in relation to that than they actually ended up being as well. But also in relation to that, and alongside the bill, there was a next steps document which had been published and outlined, amongst other things, how the government was going to deal with the promises that it made in its manifesto that have not been covered off in the bill.
So just to pick out a couple of those things that weren't in there and how they're going to be dealt with. And the first one is this right to switch off, the right to disconnect, which is another one that's hit the press. And obviously, I think it's the French, isn't it, Charlie, that they have this right to disconnect as well currently so kind of following on from what they had introduced and what this means essentially is that employees are prevented from being contacted out of hours and they're talking about introducing that still but by way of a statutory code of practice, so slightly different in terms of how that will be introduced. And then the much anticipated and very important element that relates to the Equality, Race and Disability bill. And what that is, is that we'll make it mandatory for large employees to report on their ethnicity and disability pay gaps, much in the same way as they already have to report on their gender pay gaps, which I think is a welcome addition in there as well. And they're also starting a consultation, they're committed to starting a consultation on a move towards the single status of worker and talking about transitioning towards a simpler two -part framework for employment status.
This has been in discussion for years and years now because employment status is super complicated, overly complicated. The legislation isn't fit for purpose. It's confusing for everybody involved in it and kind of links with all the zero hours stuff and all these other bits as well. I do wonder whether that was kind of put into the too hard box. They were rushing to get through the parts of the bill, they were rushing to get through all of that. And potentially that was put into a bit of a too hard box, I'm not sure, really. Certainly something that requires further consideration, along with reviewing the TUPE legislation as well, which has been in discussion really since Brexit, so that's quite an important element that needs some exploration and there will be a consultation on those.
Charlie: Gosh, so that's our 10, isn't it, isn't it Amy? We could have picked another 10 if we'd wanted to talk about because there's so much in the bill. It was being trailed as the biggest reform to employment rights in a generation and I think it's fair to say it probably meets that brief, doesn't it?
There's so much in there that's being proposed as new ways of interpreting a lot of the existing and new rights. So one of the things that I think you and I have both said, haven't we, is that the likelihood is this is going to place an increased strain on the Employment Tribunal Service and on ACAS, and it's unclear how an already stretched service is going to be able to cope with
what's likely to be an increase in demand, isn't it?
Amy: Yeah, absolutely, Charlie. I mean, just to put it into context, I has a hearing listed in one of the London tribunals who are particularly overwhelmed at the moment. It was listed last week and that was listed for March 2027. It's a 15 -day hearing, so it's a long hearing, but the dismissal took place in 2021. So, it's just a huge amount of time and it's in no one's interest in those circumstances, not the employee, not the employer. Nobody involved in that process for things to take so long to get to a conclusion. So, we've already got a hugely overwhelmed tribunal system, so it'd be interesting to see what funding is proposed to the system to support them in dealing with the undoubtedly significant load that they will be having to deal with as part of that.
Whether the single enforcement body will have some kind of involvement in that for certain types of enforcement of rights they might be taken away from the tribunal and put into that, we don't know. Again, over to consultation, it'd be interesting to see what happens with that. But certainly, there's additional work to be done on the periphery to ensure that this bill, if it's going to be the biggest shake -up, then it needs to have a system that reflects that as well. So the enforcement piece is really important and making sure that's fit for purpose.
Charlie: Yeah, no, that's a definite case of watch this space. And I think there's many people that might be a bit worried about the extent to which the system can cope. Anyway, let's wrap up because we've covered a lot here and I think our only reminders and maybe main takeaways are we don't know when these changes are going to take place. We're expecting them to be in 2026. So, what that means is employers, businesses, employees have got time to adjust to what's coming down the path and there's going to be a lot of consultations we think next year into 2025. That will put a lot of flesh on the bone.
That will pick out a lot of the points that we've been covering in some of the topics we've talked about today. So I think we'd encourage all of our clients and contacts to keep an eye on the developments. We at TLT will certainly be updating through our regular updates and through these podcasts on any of the changes that we see starting to take shape in due course. If you don't, subscribe to our updates. There's a note notes on this podcast as to how you can do so if you wish to. But other than that, thanks for listening. Amy and I have enjoyed chatting through all of these 10 topics today and we'll look forward to hopefully have you as a listener on our next series of these podcasts.
Amy: Yeah, thanks very much. See you at the next one.
The information in this podcast is for general guidance only and represents our understanding of the relevant law and practice at the time of recording. We recommend you seek specific advice for specific cases. Please visit our website for our full terms and conditions.
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Flexible Working
20 mei· Employment Law Focus
In the latest episode of our Employment Law focus podcast, Partner, Jonathan Rennie, and Knowledge Lawyer, Victoria Wenn, discuss the recent reforms to flexible working regulations that took effect on 6th April 2024. 
Also covered are the legal and practical implications of adopting a four-day working week, something that has been introduced in several other countries, with pilots taking place in the UK already with some success. 
This episode looks at:
The 6th of April reforms to flexible working requests, what this means for employers, and employees.What employers need to consider before denying a flexible working request. A review of ‘Wilson v FCA’, one of the first cases to consider a flexible working request to work remotely post pandemic.The four-day working week from an employment law perspective, with part time workers, contracts, and holiday allowance all likely to be affected.Plus, a discussion on ‘Manjang v Uber Eats’, and how AI poses the potential for discrimination in automated decision making. 
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Employment Law Focus: AI and employment law
24 okt 2023· Employment Law Focus
In this episode Jonathan Rennie, partner at TLT is joined by Sarah Maddock, senior knowledge lawyer at TLT and Emma Erskine-Fox, managing associate in the Technology and Intellectual Property team at TLT to look at the impact of AI on employment law and discuss:
Key differences between various types of AI technologies.Why generative AI like ChatGPT is gaining increased attention.How AI tools be used to enhance workplace productivity.How employers can address the potential risks and challenges associated with AI in decision-making.How AI systems affect the fairness and reasonableness of decisions. Data protection considerations and legal obligations for employers when using AI for decision-making and information processing.How organisations can establish effective governance and policies around AI technology. Role of training and transparency in the responsible use of AI in the workplace.
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Menopause in the Workplace: empowering employers and supporting employees
13 jul 2023· Employment Law Focus
In today's workforce, where one in three workers is over 50 and 80% of women aged 45 to 55 are employed, it is essential for employers to recognise and address the impact of menopause. Many employees undergoing this natural transition report adverse effects on their work, and statistics reveal a rise in litigation concerning menopause-related issues.
In this episode, hosted by Leeanne Armstrong, legal director at TLT, we’re joined by Stephanie Reid from Menopause Spring and Louise Chopra, partner at TLT to discuss the significance of supporting employees experiencing menopause and share invaluable strategies for creating a supportive work environment including:
Why must employers ensure they are equipped to effectively deal with menopause in the workplace?What are the expectations of menopausal individuals from their employers?How can employers meet those expectations, including in terms of policy development and initiatives?What were the key objectives and challenges for TLT in devising a menopause strategy in the workplace?Our key takeaways for employers on addressing the impact of menopause and implementing effective strategies in the workplace.
Further reading:
Menopause and the workplace: Government Response to the Committee’s First Report of Session 2022–2023
Mrs M Rooney v Leicester City Council
A v Bonmarche Ltd
BS 30416, Menstruation, menstrual health and menopause in the workplace
TLT Menopause Toolkit for employers
***
If you liked the podcast, please rate and review it. It helps others to know that it's worth a listen. You can subscribe so you know when we're back again and you can email us feedback and ideas for future episodes at [email protected] and you can also follow us and speak to us on Twitter @TLT_Employment
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Thinking Differently: neurodiversity and work
16 mrt 2023· Employment Law Focus
In the latest episode of our Employment Law Focus podcast, we look at neurodiversity, a range of conditions which affect how people think, process and interpret information. This affects around 15% of people but, until fairly recently, has not been widely considered in the workplace.
Traditional workplaces are often designed by and for a neurotypical society, which can negatively affect employees who are neurodivergent and prevent them from thriving at work. Understanding the differing needs of each person in your workplace will help to adjust practises to ensure every employee is equipped to perform to the best of their ability.
Jonathan Rennie and Sarah Maddock discuss the important role that employers play in the lives of people who are neurodivergent and what best practice can look like in the modern workplace.
We look at:
What neurodiversity actually meansBenefits from attracting candidates who are neurodivergentSupporting development at workHow employers can manage the hidden nature of these conditionsWhat additional things need to be considered if an employment tribunal claimant has a neurodiverse condition
Further reading
Bupa – supporting neurodiversity in the workplace
CIPD – neurodiversity at work
ACAS – webinar – inclusive workplaces: making changes to better support neurodiversity
Neurodivergent women sought for jobs at GCHQ and BAE Systems
Noor v Foreign & Commonwealth Office
Sherbourne v Npower
***
Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using #TLTemploymentpodcast or @TLT_Employment
You can find out more about our employment team at tltsolicitors.com/employment
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If you’ve enjoyed listening, please rate us and write a review.
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Winter 2022 and the cost of living crisis
8 dec 2022· Employment Law Focus
Alongside the usual risks and issues – from seasonal bugs to Christmas parties – the “permacrisis” means that in-house legal and HR teams will face a plethora of new considerations this winter. In this episode, Jonathan Rennie and Grace Caldicott discuss everything from writing hardship policies and offering early access to wages, to the pros and cons of different kinds of flexible working policies and how to normalise conversations about money.
They also offer advice on:
What to do if an employee starts a second jobThe role of communication in health and wellbeingAvoiding bias and minimising the risk of discrimination claimsInterpreting contract terms
Our news section highlights a new pay transparency law in New York, while our listener’s question touches on Elon Musk’s email to Twitter staff asking them to commit to working “long hours at high intensity” and being “extremely hardcore”.
Further reading:
CIPD: Cost of living crisisCIPD: Tackling in-work povertyHSE: Home workingTLT: Bellman Christmas party ruling
***
Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using #TLTemploymentpodcast or @TLT_Employment
You can find out more about our employment team at tltsolicitors.com/employment
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If you’ve enjoyed listening, please rate us and write a review.
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Trans and non-binary inclusion at work
4 okt 2022· Employment Law Focus
In this episode, we’re joined by Bobbi Pickard, CEO of Trans in the City, to discuss how employers can improve their approach to trans and non-binary inclusion in the workplace.
We explore questions like:
Is the term LGBTQIA+ a help or a hindrance?What does trans and non-binary actually mean?Are gender-critical beliefs protected by law?Is the law fit for purpose, and how might it change in the future?What does best practice look like?
We discuss the importance of vocalising a clear position on trans and non-binary inclusion and educating staff. We also discuss the benefits of creating a safe and welcoming environment, from recruiting the best talent to allowing people to do their best work.
As Bobbi says, it takes years to change a company’s culture, but today’s graduates are already exploring their identities and have high expectations about equality, diversity and inclusion.
Further reading:
Grainger plc & Ors v NicholsonMaya Forstater v CGD Europe & Ors Ms R Taylor v Jaguar Land Rover LtdUnited Nations Global Compact
***
Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using #TLTemploymentpodcast or @TLT_Employment
You can find out more about our employment team at tltsolicitors.com/employment
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If you’ve enjoyed listening, please rate us and write a review.
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Gender equality: a work in progress
28 jun 2022· Employment Law Focus
50 years on from the Sex Discrimination Act, sexism is unfortunately still common at work. And yet studies repeatedly show that more diverse workplaces are more successful.
In this episode, we discuss questions like:
Do workplace policies sustain gender stereotypes?Has the pandemic successfully de-coupled gender from flexible working?Will the UK government reform gender pay gap reporting this year?Does a holiday really allow for “rest and relaxation” if the employee is suffering from menopause symptoms, menstrual pain or undergoing early-stage IVF treatment?
We look at how gender equality issues are changing, and help HR and legal teams to navigate the risks, challenges and debates. We also highlight a story that considers: when is a sex discrimination case not a sex discrimination case?
As employers continue to face challenges with recruitment and retention, it’s more important than ever that they’re able to show a strong hand with regards to ESG and ED&I issues.
Useful links:
Acas – Improving equality, diversity and inclusionThe Fawcett Society – Menopause and the workplaceTLT - Addressing menopause in the workplace
***
Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using #TLTemploymentpodcast or @TLT_Employment
You can find out more about our employment team at tltsolicitors.com/employment
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If you’ve enjoyed listening, please rate us and write a review.
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Race discrimination
8 apr 2022· Employment Law Focus
Can an employer really claim to have strong ESG credentials if they aren’t addressing societal issues like race equality and discrimination, and if they’re simply relying on policies and training?
How can employers meet the changing expectations of regulators, investors, employees, job candidates and clients?
The legal definition of race is much broader than many people realise. In this episode, Kanika Kitchlu-Connolly, co-chair of TLT’s BAME network, joins our employment team to discuss:
Why this is so challenging but important for employers to get rightThe role of employee networks, from sharing information and lived experiences to raising issues, offering solutions, acting as a sounding board and holding employers to accountThe role of data, from helping employers to achieve their goals, to demonstrating what’s working, revealing barriers and defending claimsOther ways to embed an anti-racism policy, from induction processes and exit interviews, to reverse mentoring and enabling people to become alliesComplex legal issues, including those arising from “zero tolerance” policies, “banter”, harassment, indirect discrimination and positive discrimination
Our news update covers fire and rehire practices and the rights of agency staff.
Further reading:
Acas: fire and rehire practicesBITC: Race at Work CharterRare Recruitment: Race Fairness CommitmentEHRC: using positive action to address workplace disadvantage
Send us your questions and we'll answer them in a future episode – email [email protected] or Tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment
You can find out more about our employment team at tltsolicitors.com/employment
Sign up to receive our updates at tltsolicitors.com/signup
If you’ve enjoyed listening, please rate us and write a review.
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Five new challenges with returns to work
20 dec 2021· Employment Law Focus
Returns to work are set to become even more challenging with the advent of hybrid and remote working, to the extent that the traditional toolkit may no longer be fit for purpose.
In this episode, our employment and regulatory teams discuss five new challenges for HR and legal teams, and share their insights and advice surrounding:
Occupational stressSupervision and performance managementPersonal injuryTraining and career developmentLong Covid
There are some recurring themes, including:
The risk that employers underestimate their legal obligations;The need to think about the individual employee and take a tailored approach;The importance of effective employee communications; andMaintaining a complete record of steps taken to support employees and minimise health and safety and other risks.
Our listener question addresses the timely topic of mandatory vaccinations at work, and what we’ve been seeing and advising clients.
Useful link: HSE guidance on home working
***
Send us your questions and we'll answer them in a future episode – email [email protected] or Tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment
You can find out more about our employment team at tltsolicitors.com/employment
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If you’ve enjoyed listening, please rate us and write a review.
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The rise of the disability agenda
8 okt 2021· Employment Law Focus
After Me Too and Black Lives Matter, there are growing signs that disability could be the next recipient of a major social media movement, not to mention new legal duties for employers.
In the UK, the government has published a new National Disability Strategy including mandatory reporting for employers, the employment gap is impossible to ignore, and the Tokyo Paralympics sparked the campaign WeThe15 representing the world’s 1.2 billion people with a disability.
But are employers ready for this? Disability varies wildly from other areas of equality law, and as PageGroup CEO and disability rights champion Steve Ingham recently said, many employers simply think: “It’s too complex an issue to grapple with” and therefore don’t engage.
We discuss:
Why this is such a complex area of employment law, and why employers should act nowThe merits of pay gap reporting and quotas, but more importantly, the need for an inclusive workplace cultureEmployer attitudes when deciding what is/is not a disabilityThe different types of disability discrimination and knowledge testsThe tricky business of using medical reports
We also explain cases covering:
Concealment of a disabilityAssuming the knowledge of your agents“Reasonable” adjustments including cost
Our listener question looks at four-day working weeks and what employers should consider when defining the scope of a trial.
Useful link: EHRC Code of Practice
***
Send us your questions and we'll answer them in a future episode – email [email protected] or Tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment
You can find out more about our employment team at tltsolicitors.com/employment
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Employee wellbeing post-pandemic
13 jul 2021· Employment Law Focus
Employee wellbeing has risen up the corporate agenda during the pandemic. However, this is set to become an even bigger issue in the coming months, as HR and legal teams navigate the impact of hybrid working, the right to work flexibly, the end of furlough, long Covid and more.
How can employers address the stigma around mental health and wellbeing? What does proportionate support look like? And what new risks and challenges do they face?
In this episode, we discuss:
The right to disconnect – what is it, how does it work, and could it work in the UK? With insights from Deirdre Lynch, partner at ByrneWallace LLP in the Republic of Ireland.Gender equality – with more women planning to work from home after the pandemic than men, is “proximity bias” and backwards progress on gender equality in the workplace inevitable?Remote line management – how can employers make sure they’re spotting the signs and giving the right support to line managers and employees working remotely?Common themes in employment tribunal claims – including the growth of psychiatric injury claims, and the importance of early intervention and being able to show that you’ve taken proactive steps to support employees with their mental health and wellbeing.
We also explain how TLT is using the Mindful Business Charter to reduce unnecessary stress in the workplace and show respect for colleagues’ wellbeing.
Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment
You can find out more about our employment team at tltsolicitors.com/employment
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If you’ve enjoyed listening, please rate us and write a review.
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The impact of workplace technology on employees
15 apr 2021· Employment Law Focus
Should HR be more involved in the design and rollout of workplace technology?
Will modern technology force us to replace roles (performed by people) with functions (performed by people, technology, robots and algorithms)?
At what point do employees start to resent technology impinging on their jobs? When it can do 10%, 20% or 30% of their role faster and better than they can?
These are just some of the questions we explore in this episode on workplace technology and its impact on employees. Jonathan Rennie and Sarah Maddock in our employment team are joined by Emma Erskine-Fox from our data privacy and cybersecurity team.
We dig into this complex topic and highlight the issues HR and legal teams need to be aware of, and share our thoughts, cases and practical tips.
Our news section covers a rare case where the tribunal gave some useful advice and a stark warning against allowing your equalities training to go “stale”.
Our listener’s question asks about dismissal and reengagement or “firing and rehiring”, which has become increasingly popular during the pandemic. Read our short guide to this practice.
Note: since we recorded this episode, the court in the Netherlands has ordered Uber to reinstate the five British drivers who were struck off by robot technology.
Send us your questions and we'll answer them in a future episode – email [email protected] or Tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment
You can find out more about our employment team at tltsolicitors.com/employment
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Working parents
8 jan 2021· Employment Law Focus
The pandemic has required many people to balance work with heightened childcaring responsibilities.
For employers, this means considering the needs of working parents like never before – flexing policies, considering flexible working arrangements and other solutions and supporting people with their mental health and wellbeing.
The challenges are many and varied, from changing working arrangements to managing performance issues.
At the same time, the law recognises the need to be pragmatic and protect the interests of the business.
This is a big topic, but in this episode, we seek to answer some of the burning questions, including:
What’s a socially and politically acceptable way of managing working parents during the pandemic and moving forward?How far must employers go to identify those who are struggling and need more support?What can we learn from the historic uptake of initiatives like shared parental leave, and should childcaring be a protected characteristic under the Equality Act?How has the gender balance in childcaring during the pandemic affected employees and the risk of a claim for direct or indirect sex discrimination?Is the UK’s legal framework for family friendly policies keeping pace with societal trends?
The pre-pandemic issues surrounding working parents have not gone away, and are still very much on the agenda. We consider what changes we might see in the law moving forward.
In our news section, we cover:
New research from TLT showing an increase in employees using interim relief applications. These can be challenging and costly for employers to deal with, and many HR teams will never have seen one before.A recent reminder of the need to be flexible to help parents with childcare commitments – particularly where a flexible contract has already been agreed.
Useful links:
EHRC Working Forward campaign
Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment
You can find out more about our employment team at tltsolicitors.com/employment
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Employee monitoring and using personal data
27 nov 2020· Employment Law Focus
Employee monitoring isn’t just about using software to check that people are working hard enough. It can be digital, manual, well intended or even a regulatory requirement.
But whether you’re monitoring devices, collecting data to make employment decisions or using CCTV (or even microchips), there’s a whole host of data protection and employment risks to consider.
In this episode, we discuss:
The growth of employee monitoring and why employers might use itThe GDPR principles of transparency, necessity and proportionalityUsing employee records for positive discriminationThe £32.1m fine against H&M for “excessive” monitoringThe role of data protection impact assessmentsWho’s responsible for CCTV and employee monitoring in shared workspaces
Our news section covers:
Two legal challenges against Uber regarding automated decisions about employees
The ICO’s final guidance on data subject access requests, including when you can “stop the clock” and what constitutes a manifestly unfounded or excessive request
We also answer your questions about whether an employee can withdraw an access request and how employers should be preparing for the end of the Brexit transition period.
Useful links
TLT update on ICO guidance
ICO guidance on DSARs
Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment
You can find out more about our employment team at tltsolicitors.com/employment
Sign up to receive our updates at tltsolicitors.com/signup
If you’ve enjoyed listening, please rate us and write a review.
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Unconscious bias
29 sep 2020· Employment Law Focus
Unconscious bias (UB) is a growing legal issue for employers. It’s widely regarded as a barrier to equality, diversity and inclusion, and employment tribunals are looking more closely at motivation and bias in discrimination and harassment cases.
While it’s been talked about for a number of years, many employers still aren’t doing enough to reduce the risk of UB infiltrating people’s decisions about candidates and colleagues.
In this episode, we discuss:
How does UB present itself as a legal issue?Ways of reducing the risk, including training, recruitment models and corporate cultureWhat the employment tribunal looks forProving UB and a direct causal linkDiscrimination and reasonable adjustments case law
In our news section, we cover:
Facial recognition technology and a case showing just how far organisations must go to satisfy themselves that there isn’t a risk of biasThe breakdown of working relationships between employees, and a surprising decision that a dismissal was fair, even though there was no dismissal processEmployment status, including a finding of “false self-employment” – a stark warning ahead of possible job losses as a result of the pandemicThe latest predictions about the Supreme Court’s pending decision in the Uber employment status case, due later this year
We also share our views on the government’s long-term “back to work” plan, including refusal to return to work, unfair dismissal, flexible working requests and indirect sex discrimination.
Further reading:
AI – ethical considerations and the privacy legal framework
Seven top questions on returning staff to work during the pandemic
Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment
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Flexible and agile working
1 jul 2020· Employment Law Focus
HR teams need to plan for the inevitable rise of flexible and agile working after the Covid-19 pandemic.
Risks and questions abound, from discrimination and harassment to protecting employees’ physical and mental health and wellbeing.
In this episode, we look at:
The right to request flexible working, and whether this goes far enough (compared to countries like Finland);The grounds for refusing a request, and whether this will be harder moving forwards;The risk of claims relating to indirect sex discrimination, health and safety (both mental and physical) and protected characteristics;Whether remote surveillance of employees is legal, and how to manage the risks; andThe need for a robust approach to data protection and information security.
We also look at what recent news stories have taught us about the wide scope of equalities protections and the need for a dress code for virtual meetings.
In our listeners’ questions, we discuss the use of personal devices for work purposes when working remotely and the expected rise in whistleblowing claims as a result of the pandemic.
Useful links:
ICO’s tips on working from home securely
TLT’s ‘Fit for the future’ hub
Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment
You can find out more about our employment team at tltsolicitors.com/employment
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Whistleblowing
9 apr 2020· Employment Law Focus
Whistleblowing is growing at an alarming rate. This is being driven by high profile cases as well as campaigns against systemic issues like data privacy and sexual harassment.
There has also been an increase in complicating factors – including whistleblowers raising grievances and additional issues arising part way through an investigation.
Having an effective whistleblowing policy is now considered fundamental to good corporate governance, culture and risk management. The decisions you make early on can have a significant impact on the risks and how the investigation unfolds.
Some of the biggest risks include financial and reputational damage. There is no cap on whistleblowing claims and they can become part of an organisation’s permanent digital footprint.
In this episode, we look at:
how to identify a whistleblowing claim;complicating factors, including how to defend your reputation; andhow to manage an investigation, including who should be involved; reporting to the regulator; your obligations towards the complainant and others; and data protection.
We also look at some recent news stories, including:
a ruling that ethical veganism can be protected under the Equality Act;new technical guidance from the EHRC on tackling sexual harassment at work; andthe use of love contracts and #MeToo Bots.
Useful links
Parental bereavement leave and other April 2020 changes
The Whistleblowing Commission’s Code of Practice
TLT’s coronavirus hub
Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment
You can find out more about our employment team at tltsolicitors.com/employment
Sign up to receive legal insights at tltsolicitors.com/signup
If you’ve enjoyed listening, please rate us and write a review.
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GDPR and access requests
19 dec 2019· Employment Law Focus
Since the General Data Protection Regulation (GDPR) came into force, HR teams have been flooded with requests by employees for a copy of the personal data the company holds about them.
This is often done as part of threatened litigation and can be challenging to deal with, not least because the deadline is shorter and HR needs to make a judgment call on how to respond.
The regulator has received a huge volume of complaints about how requests are dealt with, and you don’t want to be the first company to face a fine.
In this episode, we look at:
The right to refuse a request or extend the deadline;How to set the right search parameters; andWhat you can and can’t withhold.
We look at the role of culture, IT and training and how self-serve platforms and automation can help foster an environment of trust and speed up the process.
And we answer questions like: Do you have to use the search terms requested by the employee? And should you search instant messages, texts and WhatsApps?
In our news round-up we look at:
How much home working is too much, according to a new report?Can employers be held vicariously liable for a data breach by a disgruntled employee?Is the use of facial recognition technology legal?
Useful links:
ICO consultation
Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment
You can find out more about our employment team at tltsolicitors.com/employment
Sign up to receive insights including our A-Z of employment law at tltsolicitors.com/signup
Finally, if you’ve enjoyed listening, please rate us and write a review.
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Burnout and workplace stress
4 sep 2019· Employment Law Focus
Chronic stress impacts employee wellbeing, productivity and company performance.
With the World Health Organisation now classifying burnout as a workplace disease, employers need to understand their legal and moral duties to prevent, identify and manage this issue.
In this episode crammed with top tips and examples we look at:
What causes burnout, from workplace factors like always-on technology and a culture of out-of-hours working to external events like Brexit anxietyHow some companies are managing the risks, from mental health first aiders and regular wellbeing days to 32-hour working weeks and not delivering emails out of hoursThe lengths employers can be expected to go to ensure that someone can remain in employment – but does extreme burnout always require an extreme remedy?
In our news round-up we cover:
A discrimination case involving an employee's social media post (read our latest article on social media issues);New legislation and guidance on the use of NDAs or "gagging clauses" (read Siobhan's comments in People Management); andBereavement leave for pets – could this become law and how to deal with it.
Useful links from this episode:
The Stevenson / Farmer review
Equality Act 2010 Code of Practice
HSE stress risk assessment template
Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment
You can find out more about our employment team at tltsolicitors.com/employment
Sign up to receive insights including our A-Z of employment law at tltsolicitors.com/signup
Finally, if you’ve enjoyed listening, please rate us and write a review.
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Laat meer zien

Afleveringen

Labour's Employment Rights Bill

Flexible Working

Employment Law Focus: AI and employment law

Menopause in the Workplace: empowering employers and supporting employees

Thinking Differently: neurodiversity and work

Winter 2022 and the cost of living crisis

Trans and non-binary inclusion at work

Gender equality: a work in progress

Race discrimination

Five new challenges with returns to work

The rise of the disability agenda

Employee wellbeing post-pandemic

The impact of workplace technology on employees

Working parents

Employee monitoring and using personal data

Unconscious bias

Flexible and agile working

Whistleblowing

GDPR and access requests

Burnout and workplace stress