2024 is an exceptionally busy year for employment legislation. Most of the major new laws came into force in April this year. These employment law updates will bring you up to speed on the important new laws, their implications and the actions to take. The table of contents above lists the headline changes. The two main themes are increasing workers’ rights and provisions for working parents.
The Government has announced the annual increases to statutory payments and to employment tribunal awards from April 2024. Keep an essential reminder of these at your fingertips by downloading our concise one page Employment Law Factsheet, which includes helpful explainer notes, here:
Statutory payments of course include sick pay, maternity pay, NMW rate increases etc. from April 2024. Employment Tribunal award payments, known as compensation limits, cover scenarios such as redundancy payouts and awards for unfair dismissal.
Return of 12.07 % holiday pay for part-year & irregular hours workers
The Government has issued new guidance allowing employers to use the practical 12.07% “rolled up” method for calculating holiday pay for irregular hours and part year workers. The new guidance defines irregular hours and part year workers in this regard. Whilst these reforms (to the Working Time Regulations 1998) came into force on 1st January 2024, they apply to leave years that begin on or after 1 April 2024.
Rolled up holiday pay allows employers to include an additional amount with every payslip to cover a workers’ holiday pay, as opposed to paying holiday pay when a worker takes annual leave. The holiday pay is calculated at 12.07% of the total qualifying pay for that period. The new guidance states that from 1 January 2024, the qualifying pay must include commission payments, and any overtime payments which have been paid regularly to a worker in the 52 weeks preeceding the holiday pay calculation date.
Workers with regular hours and fixed pay are not allowed to be paid rolled up holiday pay. There is no change to how their statutory holiday entitlement is accrued. For regular hours workers, (and for irregular hours and part-year workers whose leave years begin before 1 April 2024) use the holiday entitlement calculator.
We explain rolled up holiday pay, with examples from the new guidance of how it is accrued and paid, and how to prepare for it in our guide to rolled up holiday pay in 2024. https://www.thelegalpartners.com/a-guide-to-rolled-up-holiday-pay-in-2024/
Actions to take
If you have flexible workers, check if they come under the new definitions, and update holiday policies to reflect the changes.
If you intend to start using rolled-up holiday pay for irregular and part time workers, check these workers’ employment contracts in case this amounts to a variation of contract. Get in touch if you are unsure.
Inform these workers of your intention to start using rolled-up holiday pay and ensure that this payment is clearly marked as a separate item on each payslip.
The new guidance does not mention agency workers whose periods of work are often irregular, so take care when deciding how to pay these workers holiday, and refer to the guidance.
Flexible working Act changes – Day One right to request from April 2024
On 6th April 2024, the Flexible Working (Amendment) Regulations 2023 came into force, giving employees the right to request flexible working from Day One, rather than after completing 6 months service.
The new law introduces the following additional changes to the process, which also take effect from 6th April 2024.
employees will be able to make 2 flexible working requests a year, rather than just 1
employers must respond to requests earlier, within 2 months rather than 3
there are new requirements for employers to consult with the employee before turning down their flexible working request, (to curb the practice of blanket refusals with no discussions, though there is no minimum requirement setting out what the consultation should include) and
Employees will no longer be required to lay out how the flexible working request might impact the employer.
Note that the 8 current statutory grounds on which an employer can reasonably refuse a request for flexible working remain.
Accompanying these legislative changes is a new draft Acas Statutory Code of Practice which is subject to Parliamentary approval. The aim of the Code is to provide employers, employees and representatives with a clear explanation of the law on the statutory right to request flexible working, alongside good practice advice on handling requests in a reasonable manner.
Actions to take
For full details on how to prepare for this, and the changes to the process, read our article “Employers guide to the Day 1 right to request flexible working” https://www.thelegalpartners.com/employers-guide-to-navigating-the-day-1-right-to-request-flexible-working/ .
Review your flexible working policies to ensure they are compliant. Aside from the Day One right to request flexible working the additional changes will put more of the onus on employers to find the flexible working solutions. It will mean dealing with successive requests, engaging more effectively and responding more quickly to requests and recording requests more assiduously.
Breaching the flexible working regulations can bring penalty awards of up to 8 weeks pay and potentially leave the business open to a costly discrimination claim. Remember by law you can only turn down a request using one of the 8 statutory reasons which are remaining in place, and if refusing a request be mindful of the discrimination risks. Make good use of trial periods for flexible working. Get in touch if you need advice.
Redundancy protection extended to returning mothers & new parents
A key new piece of employment legislation is The Protection from Redundancy (Pregnancy and Family Leave) Act 2023, which came into force on 6th April 2024.
For a long time the law has granted additional protection from redundancy to those on maternity, adoption or shared parental leave. They have the first right of refusal for any suitable alternative roles in a redundancy situation.
This new law extends the protection from redundancy for a further 6 months after maternity and adoption leave ends. The protection will also be extended to:
Any employee who is pregnant, in a ‘protected period of pregnancy’ i.e has informed their employer,
Any employee who informed her employer she is pregnant and has suffered a miscarriage within the previous 2 weeks, or
anyone who has returned to work from maternity leave, adoption leave and shared parental leave.
The new Act doesn’t extend redundancy protection to fathers taking paternity leave. This is on the basis that the new provision is designed to ensure that employers don’t make any early judgment on performance in the first few months of someone returning to work after a long absence; which is not often the case in paternity leave.
Actions to take
If you have a redundancy policy which refers to redundancy protection, update it to reflect the extended protections.
When managing a redundancy situation from April 2024 onwards, make doubly sure to remember and prioritise those of your staff on maternity and other family related leave and those who have just returned. To manage this, mark the records of employees who have taken leave, noting their period of extended protection. With these extensions, the periods of protection will be up to 18 months from the expected week of childbirth. Which in effect means someone taking the full maternity leave (ordinary and additional) plus up to 6 months after they have returned.
Make sure to inform managers about the extension of this special status early on, so it can be incorporated into any redundancy planning. Do get in touch if you need advice on these very technical situations.
Increased flexibility in Paternity Leave
Following the birth or adoption of a child, an eligible father or partner can take one or two weeks’ paternity leave. Under the new Paternity Leave (Amendment) Regulations 2024, the rules have become more flexible, allowing the father or eligible partner to divide their two-week paternity leave into two separate one-week periods. Requiring only a month’s notice of their intention to take it, down from the previous 15 weeks before the expected week of childbirth.
The Regulations apply in all cases where the EWC is on or after 6 April 2024. Relevant policies will need amending to reflect these changes and managers should be made aware so that absences on paternity leave can be planned and effectively managed.
Leave for unpaid carers
The Government has introduced the Carer’s Leave Act 2023, which from 6 April 2024 will give employees with care obligations a minimum of one week’s unpaid carer’s leave per year. This unpaid leave will be available as a day one right as well as giving those who exercise the right protections from dismissal or detrimental treatment.
The extended rights to request flexible working, extended redundancy protections, new right to carers’ leave and increasingly flexible paternity leave are among a number of other family friendly provisions introduced by the Government this year, which are coming into force in 2024 and 2025. We cover these in full, with all the detail you need in our article employer’s guide to the new laws supporting working parents at https://www.thelegalpartners.com/new-laws-supporting-working-parents/ .
1 April 2024: New National Minimum Wage, National Living Wage rates
In doing so, the Government accepted fully the recommendations of the Low Pay Commission (LPC). Remember the National Living Wage has been extended to include 21 and 22 yr olds. Ensure you update the wages you are paying your employees, and pay special attention that any employees who move into the 21 yrs+ age bracket.
Apprentices are entitled to the National Minimum Wage for their age if they :
are aged 19 or over AND
have completed the first year of their apprenticeship.
So an apprentice aged 21 who in the first year of their apprenticeship is entitled to a Basic Apprentice Rate of £6.40 per hour from 1st April 2024. An apprentice aged 21 who has completed the first year of their apprenticeship is entitled to the National Living Wage of £11.44 from 1st April 2024.
Use the minimum wage calculator to double check that you are paying the appropriate wage rate. With the cost of living rising, it’s helpful to reference, but don’t confuse, the Living Wage Foundation’s published advisory rates for the real cost of living, found here.
6 April 2024: increases to annual tribunal limits and statutory redundancy payments
The 2024 increases to the employment tribunal compensation awards, and the maximum week’s pay for the purposes of calculating redundancy payments and basic tribunal awards are as follows:
The maximum week’s pay for calculating statutory redundancy payment and unfair dismissal basic award increases to £700 (previously £643)
So the maximum basic award for statutory redundancy payment and unfair dismissal awards increases to £21,000 (20 weeks pay subject to the limit on weekly pay above with a 1.5 multiplier if the employee is 41 or older)
Maximum compensatory award for unfair dismissal (unlimited for certain automatically unfair dismissals such as health & safety or whistleblowing) increases to £115,115 (previously £105,707).
Be mindful of these new amounts especially for dismissals taking place on or around 6 April. Double check all redundancy pay calculations on gov.uk’s redundancy pay calculator. Remembering of course that your staff employment contracts may make provision for enhanced redundancy payments and, in addition to any statutory or contractual redundancy payment, employees are also entitled to work their notice period or be paid for it instead of working their notice (known as Pay in lieu of notice or PILON).
Remember also that where an employee brings a successful case of unfair dismissal on the grounds of Discrimination, there can be levels of compensation awards for injury to feelings (with the ET assessed Vento bands depending upon severity) and in extreme cases these are not capped.
Increases to Vento guidelines
Vento bands for successful claims presented on or after 6 April 2024, the Vento bands are:
a lower band of £1,200 to £11,700 (less serious cases)
a middle band of £11,700 to £35,200 (cases that do not merit an award in the upper band)
an upper band of £35,200 to £58,700 (most serious cases, with the most exceptional cases capable of exceeding £58,700).
Increases to statutory family related pay
On 6th April 2024 the rate for statutory sick pay increases to £116.75 per week (rising from £109.40).
Ensure all staff on maternity, paternity, adoption, shared parental leave and parental bereavement leave, as well as staff on sick leave, are paid the relevant statutory minimum rates.
7 April 2024: annual increases to statutory sick pay
On 7th April, the rate for statutory maternity, paternity, adoption, shared parental and parental bereavement pay willincrease to £184.03 per week (up from £172.48).
Horizon scanning : further new laws and statutory codes of practice
Each of these legislative changes is scheduled to come into force in the coming months, but given the nature of their route through parliament (via private member’s bills in some cases) this isn’t certain. Keep these on your radar and if you haven’t already, subscribe to our Legal Updates e-newsletter below, and we will keep you up to speed on developments.
Tipping, gratuities, cover and service charges
The Employment (Allocation of Tips) Act 2023, will require that employers allocate all qualifying tips between workers with no deductions (other than those which are required by tax law). Employers will also be required to have a written policy explaining their allocation process. This ensures that tips are distributed in accordance with a new statutory Code of Practice on Tipping, which also makes an appearance in the Act. Employers will be expected to retain receipt and allocation records – and to share those records on request. The Act comes into force in May 2024, and its expected that the Government will publish a Code of Practice alongside it.
Workers (Predictable Terms and Conditions) Act 2023
On 18 September 2023, the Workers (Predictable Terms and Conditions) Bill received Royal Assent, becoming the Workers (Predictable Terms and Conditions) Act 2023 (Predictable Terms Act).
The Predictable Terms Act will amend the Employment Rights Act 1996 to give workers and agency workers the right to request a predictable work pattern.
This will apply where:
there is a lack of predictability for a work pattern (fixed term contracts of 12 months or less are presumed to lack predictability).
the change relates to their work pattern.
their purpose in applying for the change is to get a more predictable work pattern.
A worker can apply twice in a 12-month period. The employer can reject an application on statutory grounds (for example: the burden of additional costs or the insufficiency of work during periods when the worker proposes to work). It is expected that there will a 26 weeks minimum service requirement to access this right. Workers can bring claims for procedural failings by the employer, unlawful detriment and automatic unfair dismissal. Regulations will provide further details of the statutory regime and are expected in September 2024.
The Predictable Terms Act and secondary legislation are expected to come into force by September 2024 so that employers have time to prepare.
Acas has produced a new code of practice to provide guidance on making and handling requests – see here.
New duty to prevent sexual harassment
The Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force on 26 October 2024. The Act introduces a duty on employers to take reasonable steps to prevent employees from sexual harassment “in the course of their employment”. (This latter part of the Act reflects the commitments made by the Government in its response to the 2019 consultation on workplace sexual harassment).
The duty would be enforced by Employment Tribunals who would be allowed to apply an uplift of up to 25% to employees’ compensation in sexual harassment cases where the employer had failed to take reasonable steps to prevent this. The Equality and Human Rights Commission will produce an updated statutory code of practice to provide guidance to employers to help them understand the sort of steps they need to take to meet the new duty.
In summary, employers should take reasonable steps to prevent workplace sexual harassment by:
having a policy (usually in their Staff Handbook),
providing training,
taking steps to deal effectively with complaints, and
where there is proven sexual harassment as a result of a grievance, taking appropriate disciplinary action against the employee(s) who perpetrated the sexual harassment.
Neonatal leave and pay
The Neonatal Care (Leave and Pay) Act 2023 will entitle parents to each take up to 12 weeks of paid leave, in addition to other leave entitlements such as maternity and paternity leave, to spend more time with their baby who, having been born prematurely or sick, is receiving intensive care. Neonatal leave will be a day one right and give parents protection from dismissal or detriment. The estimated time for the implementation is around 18 months following Royal Assent so this right is expected to be in force from September 2025. However, the Government is exploring ways to decrease this length of time while still allowing sufficient notice for employers and payroll providers to update their systems.
3 month cap on non-compete clauses
As part of its policy paper “smarter regulation to grow the economy” in May 2023, the Government announced plans to limit the length of non-compete clauses in employment contracts to three months. This 3 month cap on non-compete clauses represents a major shift that could see employers making greater use of garden leave clauses and imposing longer notice periods to protect the business’ interests.
Our article 3 month cap on non-compete clauses, brings you the complete picture on this provision and its implications for employers, https://www.thelegalpartners.com/3-month-cap-on-non-compete-clauses-implications-for-employers/ .
Trade Union and strike action
The Strikes (Minimum Service Level) Act became law on 20 July 2023 following months of parliamentary scrutiny. The Government is now implementing specific regulations for the passenger rail services, ambulance and fire and rescue services. The approach to future Trade Union regulation area will be a key difference between the political parties in the forthcoming election.
ICO Helpful Guidance for Employers
The ICO produces very helpful guides for employers on a range of topics including data protection issues with employment situations including SARs. See here to access them.
Dismissal and re-engagement, fire and rehire
In the wake of the mass redundancies at P&O Ferries in March 2022, which occurred without notice or consultation, the Government announced that it would introduce a new Statutory Code of Practice on ‘fire and rehire’ practices. The draft Statutory Code of Practice is now published, and requires employers to hold “fair, transparent and meaningful consultations” with employees where changes are proposed for employment terms and conditions.
Government’s new suite of guidance clarifying employment status
The Government has published a new suite of online guidance to provide a ‘one-stop shop’ for businesses and individuals to understand which employment rights apply to them. There is a check list aimed at helping employers of all sizes to assess the employment status of people they engage to work for them and whether they are employees or workers or self employed. Our article here lays it out simply, and has a helpful one page check list on the main rights and protections afforded to all categories (as the Government’s check list ignores self employed contractors).
In other matters..
An important reminder on settlement negotiations with employees
Prompted by a recent case we’ve advised on, a quick but vital point to remember on Pre-Termination Negotiations, also known as ‘Protected Conversations’, and when you should use these to protect the business.
In a situation where there isn’t a dispute but you are looking to discuss with an employee bringing their employment with the Company to an end, for example if things are just not working out, then the normal “without prejudice” badging in communications with them won’t protect the business. Why? because there is no dispute at this point. (Without Prejudice is shorthand for saying “whilst I’m trying to reach a settlement with you because of a dispute, none of what I say can be used in a claim or an Employment Tribunal). Instead you must use the phrase “pre-termination negotiations under Section 111A of the ERA 1996” in all settlement communications in order to protect the business.
As the ACAS code of practice on settlement agreements, emphasises below by using section 111A, the pre-termination discussions between an employee and employer are treated as confidential.
Section 111A of the ERA 1996 provides that offers to end the employment relationship on agreed terms (i.e. under a settlement agreement) can be made on a confidential basis which means that they cannot be used as evidence in an unfair dismissal claim to an employment tribunal.
Under section 111A, such pre-termination negotiations can be treated as confidential even where there is no current employment dispute or where one or more of the parties is unaware that there is an employment problem.
You can’t use the Section 111A protection in all situations; issues relating to whistleblowing, union membership, asserting a statutory right and discrimination are not covered by the confidentiality of section 111A. Do take advice on this if you are unsure.
In case you are wondering, Section 111 A can also be used in offers of a settlement agreement where there is a dispute, but in this scenario the ‘without prejudice’ principle applies also.
In a recent 2022 case of Mrs S Garrod v Riverstone Management Ltd the Employment Appeal Tribunal (EAT) dismissed Mrs Garrod’s appeal to allow references to the contents of a discussion between her and her employer which was labelled as “without prejudice” in her discrimination and harassment claim. This case went all the way to an EAT because the company hadn’t protected itself by using Section 111A in discussions. Take note.
This is already the most significant year of employment law updates that we have seen for a long time, bringing important changes for employers. With a general election due soon, 2024 and 2025 is going to be a critical period to keep abreast of changing employment legislation. We can help you get contracts, policies and practices ready, and we are of course here to guide you through it and keep you ahead of the curve. Do get in touch.
The Government has issued new guidance allowing the return of the 12.07% “rolled up” method for calculating holiday pay for irregular hours and part year workers. Following the introduction of the nattily titled Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 in January this year, employers can use rolled-up holiday pay as an additional method for calculating holiday pay for leave years beginning on or after 1 April 2024.
An irregular hours worker – typically found in the hospitality industry- is classed as such if the number of paid hours they work is wholly or mostly variable.
They include zero hours contract workers, freelancers and gig economy workers, working on a project basis, with work hours that vary depending on demand and causal workers in hospitality, event management or retail where work demands fluctuate seasonally or weekly.
A part year worker, essentially, is a worker who does not work a full calendar year, either due to the seasonal nature of their job, contractual terms etc and who is only paid when they are working.
For example, a teaching assistant who only works during term time and who is only paid when working. If that teaching assistant is instead paid an annualised (flat) salary throughout the year, has weeks when they are not working (school holidays) but is paid for these non working weeks, they wouldn’t be classed as a part year worker.
The Government’s new 2024 ‘rolled up’ holiday pay guidance
includes examples of how statutory holiday entitlement is accrued for irregular hours and part-year workers in different working scenarios, including how to calculate holiday entitlement for those on maternity leave or off sick, and
Rolled up holiday pay allows employers to include an additional amount with every payslip to cover a workers’ holiday pay, as opposed to paying holiday pay when a worker takes annual leave. The holiday pay is calculated at 12.07% of the total qualifying pay for that period.
For example, a bartender working irregular hours and receiving the National Living Wage of £11.44 per hour (as of 1 April 2024) would be paid an extra £1.38 in rolled up holiday pay for every hour he or she worked in that pay period.
And from 1 January 2024, the bartender’s qualifying pay must include commission payments, and any overtime payments which have been paid regularly to them in the 52 weeks preceeding the holiday pay calculation date.
Note that workers with regular hours and fixed pay are not allowed to be paid using the rolled up holiday pay method. There is no change to how their statutory holiday entitlement is accrued. For regular hours workers, (and for irregular hours and part-year workers whose leave years begin before 1 April 2024) use the holiday entitlement calculator.
The new guidance does not mention agency workers whose periods of work are often irregular, so take care when deciding how to pay these workers holiday, and refer to the guidance.
The guidance is very detailed, includes lots of examples and numerous different scenarios and is somewhat tricky to follow. We’ve pulled out the two main calculations you’ll need below. But there are more examples, so check them out.
Example of how statutory holiday entitlement is accrued for irregular and part year workers
Employers using rolled-up holiday pay should calculate it based on a worker’s total pay in a pay period. A pay period is the frequency at which workers get paid, that is weekly, fortnightly, monthly, and the like.
Rolled up holiday pay Example: holiday entitlement when paid weekly
Preparing for the new holiday pay regulations
Firstly, work out if you currently employ any irregular hours or part year workers, as defined above. If you have and you intend to start using (or re introducing) rolled-up holiday pay for them, you’ll need to update any Annual Leave Policy in place to reflect the changes. Remember qualifying pay for holiday will include commission payments, and any overtime payments which have been paid regularly to the worker in the 52 weeks preceeding the holiday pay calculation date.
If you intend to start using rolled-up holiday pay for irregular and part time workers, check these workers’ employment contracts in case this amounts to a variation of contract.
Inform these workers of your intention to start using rolled-up holiday pay and ensure that this payment is clearly marked as a separate item on each payslip. The holiday pay should be paid at the same time as the worker is paid for the work done in each pay period.
Ensure calculations for rolled up holiday pay are accurate. Otherwise workers may receive too little pay depending on the number of hours they have worked, leading to a potential claim against the business for unlawful deduction of wages.
There has been a pressing need for clarity on this ever since the Supreme Court ruling in Harpur v Brazel in 2022 that employers could not use the 12.07% method to calculate holiday pay, a decision which caused considerable confusion for employers and workers alike and huge headaches for payroll administrators.
Fortunately, the rolled up holiday pay method is once again lawful from 1st April 2024. It can get complicated, so do get in touch if you need advice or clarification.
From 6th April 2024, all employees have the right to request flexible working from Day 1 in their role, removing the previous 26 week wait. The Flexible Working (Amendment) Regulations 2023 represent a major shift in the approach to flexible working in the UK, reflecting demand and changing attitudes towards work life balance.
Alongside this are a number of changes to the procedure for requesting flexible working, which were also brought into force on 6th April, by the Employment Relations (Flexible Working) Act 2023 (Commencement) Regulations 2024.
Failure to adhere to this new procedure can lead to employment tribunal (ET) claims, with compensation of up to eight weeks’ pay (capped at £643 per week) and orders by the ET to rerun the process, alongside potential for Acas Arbitration Scheme referral.
This article explains the key changes to the procedure, how to prepare for and respond to requests, and strategies for minimising the risks associated with refusing request and potential discrimination claims.
Accompanying these legislative changes, Acas published a revised Statutory Code of Practice on requests for flexible working which also came into force on 6th April. The revised Code of Practice covers all the changes and provides guidance for employers and employees on the statutory right to request flexible working as set out by the Employment Rights Act and the regulations made under it. It’s important to read it.
If an employee makes a statutory flexible working request, as an employer you must:
handle it in a reasonable way, in line with the Acas Statutory Code of Practice on requests for flexible working
accept the request unless there’s a genuine business reason not to
consult with the employee, and if not agreeing to the request in full, discuss any alternative options
make a decision within a maximum of 2 months
not dismiss or cause your employee detriment because of the request
What is flexible working?
Following the pandemic, flexible working has become far more common and takes many forms. It’s a broad term that covers :
when employees work, their working hours or patterns such as part-time, term-time only, flexi-time (allowing for flexible start and finish times beyond specified’ core hours’ or giving time off in lieu of extra working hours), compressed hours (e.g working a 5 day week in 4 days) and annualised hours . It also covers:
whereemployees work, such as home working and hybrid working, as well as
how jobs are performed, such as job-sharing.
Right to request flexible working from Day 1, the main changes
Requirements: Employees must submit their request in writing, detailing the desired change, the proposed start date, and any previous requests. This has simplified the application process and means employees no longer need to justify how their request impacts the business, shifting the onus on to employers to think about the effects. You need to make clear to your employees (in your flexible working policy) that this information must be included in any statutory request for flexible working.
An employee can now make 2 statutory requests for flexible working within any 12 month period, rather than previously one.
Employer’s Response
Flow chart: the procedure on statutory requests for flexible working
Timely Handling: Employers have two months (reduced from three) to respond to a request, with the option to extend by mutual agreement with the employee.
Consultation: A significant change is the new requirement for employers to allow reasonable consultation and consideration of the request before rejecting it, aiming to curb blanket refusals and to foster dialogue about possible compromises. The Acas Code of Practice suggests discussions should include the potential benefits and impacts and any practical considerations.
Meetings and Decisions
Meeting Requirement: Unless the request is immediately accepted in full, the employer should arrange a meeting promptly with the employee to discuss the request and explore alternatives. The employer should keep an written record of the meeting reflecting an accurate record of the discussion.
Decision Making: Employers must agree to the request unless there is a genuine business reason not to. There are 8 statutory grounds on which an employer can reasonably refuse a request for flexible working. Employers must convey their decision in writing.
Consider holding a trial period of the suggested flexible working arrangements to provide evidence of how the arrangements do or do not work in practice.
Navigating the risks of refusing a request, and discrimination
Discrimination: be vigilant against discriminatory refusals which could lead to uncapped compensation claims, especially relating to requests linked to disabilities or indirect sex discrimination. It is important to have a proper discussion and open consultation as it may be that an employee is seeking a reasonable adjustment for their disability through a request for flexible working and a refusal or insensitive response may lead to claim for unlawful discrimination. For example a mother requesting flexible working for childcare reasons could be a protected characteristic and so to refuse could be discrimination.
A refusal letter must specify the clear business reason for refusing the request, and not the person’s situation. i.e If you refuse an employees request to return to work part time following maternity leave, saying “the employee will be too remote from the business” or “the team has to be full time” the reason given is more about the person’s situation and does not specify a business reason within one of the 8 statutory grounds this then leaves your organisation vulnerable to a discrimination claim.
Employers will have to consider how they will prioritise requests. As there will be competing demands for flexible working relating to childcare, care for elderly parents, recovery from illness, disability and reasonable adjustments, pregnancy and maternity and so on.
Appeals
Appeal Rights: The new legislation doesn’t require employers to offer a right of appeal if a flexible working request is rejected, though offering a right of appeal is recommended in the current Acas Code of Practice on handling flexible working requests. If the case ends up in the Employment Tribunal and you haven’t followed the ACAS code you can be liable to a 25% uplift in the amount of any award.
It may be prudent when deciding whether to accept or reject a flexible working request to state that the decisional is provisional and subject to appeal by the employee. This gives you, as the employer a chance to remedy any defects in the process followed or to have a trial period and gain evidence of how the arrangements actually work in practice.
Implications for employers
Employers should start reviewing their flexible working policies for April 2024. Aside from the Day One right to request flexible working, which alone has considerable implications for employers, the additional changes will put more of the onus on employers to find the flexible working solutions. It will mean dealing with successive requests, very careful decisions on ranking requests in order of preference, keeping records of the timing of the requests and the discussions as well as the decisions made, responding more quickly and engaging more effectively with requests. The biggest impact, and burden, will be on SME’s who don’t have large HR resources. A sector that accounts for far more of the UK workforce than is generally understood. 40% of private sector workers work in businesses with less than 50 staff.
The right to request flexible working from Day 1 is a major change to UK working practices. It’s obviously hugely popular with employees, working families and those with caring responsibilities, why would it be otherwise. But it will take some nips and tucks, and effective recruitment (for 1 and 2 day roles), from Employers, HRs and Line Managers, not least to ensure those who are working full time aren’t picking up the additional work. The direction of travel here is clear, and the next step is including the flexible working potential when advertising a vacancy. Going forward, Employers will need to start assessing each role and as a matter of course, ask the question, can it be done flexibly?
Remember only to turn down a request using one of the 8 statutory reasons and if refusing a request be mindful of the discrimination risks. Also make sure staff handbooks and HR policies dealing with flexible working requests are updated to reflect the new process. If you need advice and assistance, please do get in touch.
Last year the Government introduced a number of family-friendly new laws and provisions aimed at increasing support forworking families. This resulted in the following family-friendly laws coming into force from 6th April 2024.
This guide summarises all these new laws, what you need to know, what they offer working parents, and the implications for businesses and employers. Use it to update your staff and to get contracts, policies and practices ready.
New Family-friendly laws from 6th April 2024:
Enhanced protection from redundancy for pregnant women and new parents
Increased flexibility in paternity leave
New right to carers leave which increases the very short term carers leave (i.e emergency unpaid time off for dependents)
Introducing paid leave for parents of newborns who need specialist neonatal care
Expanding the ‘free’ childcare support
Enhanced protection from redundancy for pregnant women & new parents
In a redundancy situation, those on maternity leave, shared parental or adoption leave are given priority to be offered any suitable alternative employment, if available.
Any employee who is pregnant, in a ‘protected period of pregnancy’ i.e has informed their employer,
Any employee who informed her employer she is pregnant and has suffered a miscarriage within the previous 2 weeks,
anyone who has returned to work from maternity leave, adoption leave and shared parental leave
The new Act doesn’t extend redundancy protection to fathers taking paternity leave. This is on the basis that the new provision is designed to ensure that employers don’t make an early judgment on perfomance in the first few months of someone returning to work after a long absence; not often the case in paternity leave.
The Act is short on detail and will require regulations from the Government setting out precisely how the new protections will work. The Government also has announced it will be publishing guidance ‘to support the commencement of the regulations’ in April 2024. But at the time of writing, we have no sign of either the regulations or the guidance.
The ‘protected period of pregnancy’ is likely to begin once the employee informs her employer that she is pregnant. We wait to see the length of protection afforded those (relatively few) returning from shared parental leave.
Why is it changing
The new legislation is designed to shield expectant and new parents from workplace discrimination. Government research in 2016 (of 3,254 women and 3,034 employers) showed that a substantial number of women, potentially 54,000 if scaled up to the general population, felt that they had to leave their jobs due to pregnancy or maternity related unfair discrimination.
This is a big problem not only for mothers themselves, but for businesses who invest heavily in hiring, training and developing women, only to see them leave their roles as the result of a life event that can be planned for.
Key implications for employers: things to consider
when managing a redundancy situation from April 2024 onwards, it’s more vital than ever to remember those of your staff on maternity and other family related leave. Forgetting them could be very expensive, as the potential claim calculation below shows.
The new law will afford more employees the right to ‘leapfrog’ others into any suitable alternative vacancies, without having to apply for the role.
It will pose a particular headache when running a redundancy exercise in a workforce that is female-dominated, where many employees must be given priority for suitable alternative vacancies. Employers will have to rethink carefully how they approach redundancy and restructuring programs, which may involve them having to decide who to keep on if multiple members of staff covered by the protection are competing for a single role.
In terms of policy, and given the above research data, there are clearly sound reasons in favour of protecting pregnant mothers and new parents from discrimination in redundancy situations, avoiding them having to compete for alternative vacancies at a vulnerable time. The existing and expanded laws do give them priority over other employees and are a rare example of positive lawful discrimination.
Even so, there are bound to be situations where the rules seem unfair to team leaders and employees on the ground, such as where it leads to losing a high achieving employee in favour of one with priority status.
Calculating the risk of failing to comply with the new Protection from Redundancy Act 2023
Whilst we wait for the regulations to specify the consequences of failing to offer a protected employee a suitable alternative vacancy, it is likely that failure to do so will mean the employee can claim for automatic unfair dismissal (from day 1).
A female employee who is automatically unfairly dismissed for a pregnancy reason would be entitled to the following compensation depending on her age, length of service, salary, the conduct of the employer and how long it takes her to get another job:
The above amounts are current up to April 2025 when these limits are usually raised in line with inflation.
Remember also, it is highly possible that a parent on maternity leave might wish to be selected for redundancy. Things are now very different, they have a new baby, they have new challenges to deal with, they might want to stay at home to be with their child or to work differently. Good managers know their staff, keep in close touch and can be aware of these issues. These conversations can be a minefield because they touch on protected characteristics under the Equality Act 2010. It’s easy for employers to panic but there is no need. Do call us if we can help you to have that conversation.
Increased flexibility in Paternity Leave
Following the birth or adoption of a child, an eligible father or partner can take one or two weeks’ paternity leave. Under the new Paternity Leave (Amendment) Regulations 2024, the rules have become more flexible. Here is what’s changing:
The father or partner will be able to divide their two-week paternity leave entitlement into two separate one-week periods, as opposed to the previous requirement of taking it either as a single week or two consecutive weeks.
They will be able to take the two week paternity leave at any time in the first year after birth (rather than having to take it in the 56 days following birth)
They will only need to give 28 days’ notice of their intention to take paternity leave (as opposed to the previous requirement that required them to give notice 15 weeks before the expected week of childbirth (EWC).
The Regulations apply in all cases where the EWC is on or after 6 April 2024. Relevant policies will need amending to reflect these changes and managers should be made aware so that absences on paternity leave can be planned and effectively managed.
Its worth noting that practically speaking, this new flexibility doesn’t really go far enough. Allowing new fathers to take paternal leave one day a week in the months following the birth, might be more practical and helpful for new parents.
New right to Carers Leave in 2024
Carer’s Leave allowance, which is unpaid emergency time off for family and dependants, is only to be used for arranging emergency care and for providing emergency cover. It is not to be used to cover situations that are known about beforehand. It is only available for a short period of time, and after a reasonable period of time the caring responsibility should be covered by another person e.g a paid for carer rather than the employee.
What’s changing
The new Carer’s Leave provision (The Carer’s Leave Regulations 2024) comes into force from 6th April 2024. It is a flexible entitlement of one week’s unpaid leave per year for employees who are providing or arranging care for a dependant with a long-term care need. It can be used for providing actual care or to cover for the primary unpaid carer taking respite leave or in order to make arrangements for the provision of care. Key features include:
It is a day one employment right
The person being cared for does not need to be a family member or even in the same household. Simply a person who reasonably relies on the employee for care.
There does need to be a long term care need that lasts for more than 3 months and the need can be physical, or mental, resulting from an illness or an injury)
Employees are able to self-certify their eligibility for carers’ leave.
Carers’ leave can be taken flexibly, in either individual days or half days, up to a block of five working days.
Employees must give notice in writing of their intention to take carer’s leave. They must confirm their entitlement to take it, and give notice that is twice the length of the leave being requested, plus one day, or 3 days notice, whichever is the longer.
Employers can postpone a request if the operation of the business would be unduly disrupted. In these circumstances, the employer must give notice of the postponement before the leave was due to begin — and explain why it’s necessary. The employer must then allow the leave to be taken within one month of the start date of the leave originally requested. The employer should consult the employee about rescheduling the leave.
Employees taking carers’ leave are protected and dismissals for reasons connected with exercising the right to carers’ leave would be automatically unfair.
Why is it changing
This is changing in recognition of the myriad of caring responsibilities employees undertake and the many different ways of carrying them out. It is intended to encourage employers to be flexible in dealing with their employees requests, encouraging them to remain in the workforce whilst still providing additional support to dependants who may not even be family members.
Actions for employers
Consider creating a new policy or add a reference to carer’s leave in any existing policy dealing with other family/dependant leave. Get in touch if you need assistance creating or amending your relevant policies.
Neonatal Care Act 2023
Previously there was no provision for parents whose babies needed specialist neonatal care and most partners in this position ended up using their two weeks of parental leave to stay at the hospital followed by being on sick leave if the situation continued.
What is changing
This is a new provision that will allow each parent to take up to 12 weeks of paid leave, to spend time with their premature or sick baby who is receiving neonatal care in a hospital or other agreed care setting.
Neonatal care leave will be a Day one right in addition to maternity and paternity leave.
Why is it changing
In the UK, an estimated 100,000 of the 605,000 babies born each year are admitted to neonatal care. These are the very sick newborn infants who need to have their parents with them whilst they are in specialist neonatal care.
This is a generous provision, and it is not yet clear who is going to pay for it. The law has been given Royal Assent and is now awaiting a commencement date. This is not anticipated before April 2025 and there still need to be changes to HMRC systems, notices for employers and payroll providers, and extensive secondary legislation and guidance.
Expanding free childcare support in 2024 & 2025
From April 2024, Childcare support is to be expanded, rolled out in stages over this year and next and renamed “Tax Free Childcare support”.
What is changing
From April 2024 working parents of 2 yr olds will be able to access 15 hours of free childcare. This will be extended to working parents of all children older than 9 months from September 2024.
Funding will start from the moment maternity or paternity leave ends. There will be different schemes in England, Wales and Scotland.
Who is currently eligible for free childcare?
Under the current system in England, parents of 3-4 year olds who work more (16 hours) a week – and earn less than £100,000 – are entitled to 30 hours a week free childcare with registered childcare providers (nurseries, childminders, playgroups, pre-school, creches etc).
This equates to 570 hours a year, usually taken as 15 hours a week for 38 weeks of the year (during school term time), but parents can chose to take fewer hours over more weeks.
Free childcare hours currently stop when a child starts in reception class.
All parents in a household must work at least 16 hours a week at minimum wage to be eligible for the scheme. This is to prevent parents not in work from claiming the benefit.
What additional free childcare support can parents claim in 2024 & 2025 and when?
From April 2024, working parents of 2 year olds are able to access 15 hours of free care a week.
From September 2024, working parents of children aged between 9 months and 2 years are able to access 15 hours of free childcare
By September 2025, working parents of children aged 9 months and over will be able to access the promised 30 hours (3 days +) of free childcare prior to their children going to school at 5 yrs old. This will be linked to the birth date and the term that the child starts school
Care must be provided by a registered childcare provider, so it cannot be claimed for informal arrangements with grandparents.
The scheme only applies during the 38 weeks of school term time.
The eligibility requirements remain that all parents in a house hold must work more than 16 hours a week.
Parents can apply on line for a childcare account and get a code for 30 hours to give to their registered provider. Childcare calculator
Why is it changing
The expanded support is designed help working parents and women especially, an estimated 40% of whom say they work less hours than they would like to due to sky high childcare costs.
Key implications for employers
Part-time workers may want to increase their working hours because more childcare is now subsidised rather than these changes leading to the employment of more part time staff overall.
Existing workers doing more hours would save on the costs of hiring and training new staff.
Its worth noting that the success of this depends largely on on supply, i.e actual availability of childcare places, (nurseries, childminders, after school care etc.) which in the case of childminders in particular has nose dived since 2012 and further declined post Covid pandemic. Nurseries are already under significant pressure to offer parents places without knowing how much they will receive from the Government for each place. They are warning they may not be able to honour the Government’s free places pledge. We wait to see in September what happens.
What the new family friendly laws mean for employers
These new family friendly provisions are part of a growing trend in UK employment law. The direction of travel is towards legislation addressing changing working patterns – hydbrid working and its umbrella cateogory flexible working, work life balance and supporting mental health at work. Workplace culture and employee’s perception of it will remain on the agenda and Employers will continue to face these challenges in the months and years ahead.
We are here to help you get contracts, policies and practices ready, to guide you through and keep you ahead of the curve. For advice, please get in touch, our details are below.
As part of its policy paper “smarter regulation to grow the economy” in May 2023, the Government announced plans to limit the length of non-compete clauses in employment contracts to three months. This 3 month cap on non-compete clauses represents a major shift that could see employers making greater use of garden leave clauses and imposing longer notice periods to protect the business’ interests.
This article explains the proposed changes and looks at the potential implications for employers.
What is a non-compete clause?
A non-compete clause is one type of post termination restriction (PTR) , also known as “restrictive covenants” which can be used by employers to restrict employees in their activities after their employment has ended. Broadly, non-compete clauses prevent employees from going and working for a competitor in a certain geographical area for a certain amount of time after their employment has come to an end.
Broadly, non-compete clauses prevent employees from going and working for a competitor in a certain geographical area for a certain amount of time after their employment has come to an end
Case law has determined that post termination restrictions are enforceable only if they are no wider than is reasonable in order to protect the employer’s legitimate business interests, such as protecting confidential information and customer contacts.
The reason behind the Government’s consultation was that it wanted to make it easier for individuals to start new businesses, find new work, and for people to apply their skills to drive economic growth. The Government is hoping that capping non-competes at three months will provide greater flexibility in the current tight labour market conditions, and that the economy will benefit from the wider talent pool.
The proposed reform will apply to employment and worker contracts, meaning that both employees and workers will be affected. Workers being those who are not employees but who work under a contract for services, such as agency workers, and those workers on zero hour contracts etc.
The Government response confirms that legislation will introduce the statutory limit “when parliamentary time allows”. As yet, there is no relevant employment bill currently before parliament, which means that the proposed reform probably has a long legislative journey ahead of it. We wait to see.
3 month cap on non-compete clauses, the impact for employers
The new plans only apply to non-compete clauses, they do not affect other types of restrictive covenants such as non- solicitation clauses, which limit an ex-employees ability to poach clients or colleagues, or non-dealing clauses, which limit an ex-employees ability to have any dealings with previous clients even if the employee is approached by them. It is therefore likely that employers will look to impose or strengthen these, as well as implement other business protection measures.
Employers couldstart tightening up contractual arrangements, policies and practices, for example increasing notice periods and having longer garden leave periods for both new joiners and existing staff, in order to protect trade secrets and confidential informationending up in the hands of a competitor. So for example, notice periods of 3 or 4 months, combined with a 3 month non-compete clause would allow the business in effect 6 or so months protection.
For client facing employees for example, consider implementing procedures so if one leaves, all of the confidential information regarding the clients or customers that they were looking after doesn’t leave with them. It happens! Helpful measures include restricting the employee-client communication on WhatsApp for example, or providing company phones so that employees do not have client numbers on their personal mobiles. Other practical measures include reminding employees at exit interviews of their ongoing obligations regarding confidential information, and being stringent about recalling all company devices (which may contain confidential information) from the employee on exit. Consider reviewing and tightening up IT security arrangements, such as prohibiting the use of personal email addresses for company business, and using system alerts which flag any unusual copying, printing or downloading activities.
post termination restrictions are enforceable only if they are no wider than is reasonable in order to protect the employer’s legitimate business interests
Remember that even though there will be the new 3 month cap on non compete clauses, this does not mean that non-compete clauses of less than 3 months are automatically enforceable! The existing common law principles of enforceability “just enough to protect the business’ legitimate interests” will still apply.
To enhance the transparency about non-compete clauses, the Government has confirmed that it will publish guidance on their use and the underlying law. We wait to see what guidance will be given for non-compete clauses already in place that exceed the 3 months. If you need advice and guidance on planning for this change, please do get it in touch.
Hybrid working is a type of flexible working where an employee splits their time between the workplace and working remotely, in most cases from home. This article discusses the employment law implications of hybrid working, addressing the specifics of what employers need to do when they have made the decision to introduce long term home working or hybrid working arrangements.
Hybrid working is just one part of the larger category of flexible working that includes part time, flexitime, annualised hours and job sharing as well as hybrid working. Hybrid working covers where work is done.
The proportion of workers in the UK who worked entirely from home was relatively low until the Covid 19 pandemic. Hybrid working proved popular with employees and the exponential growth seen during the pandemic is holding firm as employers compete for candidates in the current employee driven market conditions. In research commissioned by Acas during March – April 2022, 60% of employers surveyed have seen hybrid working increase following the pandemic, just over half (52%) have seen an increase in staff working from home full-time. Following these figures, Acas has published updated advice for employers regarding hybrid working, this is outlined below.
An update at this point about flexible working in general; in December 2022 the Government completed a year long consultation which started in December 2021 called Making flexible working the default. As a result of the consultation, the Government is going to introduce legislation so that in the future the right to request flexible working will be a ‘day 1 right’ for all employees. Note, this is the rightto request flexible working, but does not guarantee flexible working, as employers will still be able to refuse flexible working on one of the 8 current statutory grounds. Until this change comes into force, the right to request flexible working is only available after the employee has worked for the employer for 26 weeks.
The extent to which hybrid working becomes firmly embedded as the new normal way of working no one knows; it may cool off a little as businesses, wages and jobs come under increasing pressure in inflationary times. But at some level it is here to stay and organisations will take different approaches to it depending on their requirements. As we are seeing, they will change and tweak arrangements in an iterative process to strike the right balance.
Better, but not perfect
There are some clear advantages including reduced overheads, enhanced staff retention and motivation, technological competency and brand reputation. But downsides have also become apparent, for example reduced collaboration, with teams becoming more siloed, increased isolation, reduced oversight, problems with inclusivity, communication with training those at the early stages of their careers, and big issues around data security.
Employers will need to address a range of legal and practical issues, including:
Considering the need to tailor standard employment contract clauses to encompass homeworking or hybrid working.
Introducing new policies and reviewing existing policies to set out the arrangements and conditions for homeworking or hybrid working.
Taking appropriate measures to protect confidential information and personal data.
Reviewing the health and safety implications of the arrangements, including carrying out a risk assessment.i.e in all likelihood this will be an update of the risk assessment for home working during the pandemic
Deciding whether any special equipment should be provided.
Considering whether any special equipment should be provided.
Considering whether any special planning or insurance arrangements are required.
Deciding what arrangements should should be made for the management and supervision of certain types of homeworkers and hybrid workers.
Identifying the tax consequences of homeworking and hybrid working.
And firmly on the practicalities, in the light of the imminent energy crisis, some thought at least given to covering the cost of heating and to a smaller extent electricity when employees are working from home.
Acas publishes latest advice for employers on hybrid working
Following the research, Acas published the following advice to employers:
Employers will need to ensure that staff who work remotely have access to the same opportunities as those that are physically in a workplace. Acas has advice on how to keep connected with staff that are hybrid or home working, consider whether it is suitable for their workplace or if other types of flexible working are better suited for some roles.
Hybrid working policies should explain how hybrid working can be requested, detail how job roles are assessed and how decisions will be made.
Remote staff should have equitable access to opportunities such as team building, training and social activities as those in the workplace.
Transparency and fairness are important when deciding whether to approve staff requests for hybrid working. Other forms of flexible working may be considered as alternatives.
Suitable equipment and information to facilitate safe at-home working is necessary.
Employers must comply with the law on working hours. Staff working at home should take adequate rest breaks and look after their mental health.
A trial period to test hybrid working and establish any necessary adjustments may be useful.
This advice follows Acas guidance published in June last year which can be found at acas.org.uk/hybrid-working.
Implementing hybrid working will require changes to contractual terms. General flexibility clauses or mobility clauses that already exist in employment contracts are probably not enough and it would be best not to try to rely on them. It is a contractual requirement to detail the place of work so changes to contracts are likely to be required, for that reason if no other.
Employers are required to provide employees and workers with a “written statement of particulars of employment” which must include key terms such as those relating to hours of work and place of work (section 1(1), ERA 1996). This is often referred to as a “section 1 statement”. Where changes are made to any of the particulars covered by a section 1 statement, the employer must give the employee or worker a written statement containing particulars of the change, known as a “section 4 statement” (section 4(1), ERA 1996). A change from workplace-based working to homeworking or hybrid working is likely to trigger this statutory requirement.
There are a number of areas in the employment contract that may need to be changed, these are:
Hours of work
Salary
Expenses
Holidays and sick leave
Confidentiality
Restrictive Covenants
Intellectual Property
Equipment, data security and monitoring
Discipline and Grievance
Right to enter
Trial Period
The right to revert
There is significantly more detail on each of these than this article allows. Please get in contact with us for more information and assistance.
Finishing up with the final point in this list, it’s worth planning now – on the way in – for what happens if the business needs to revert back to a full office working environment. There are a number of circumstances in which an employer may wish to bring an employee’s homeworking or hybrid working arrangements to an end. For example:
where the employer has reserved the right to ask the employee to revert to workplace-based working practices at the end of any unsatisfactory trial period.
where homeworking or hybrid working has been a stopgap or temporary solution to a problem.
where changes to the business or workforce make it impossible for the employer to organise work effectively with the employee working at home.
where the employee’s role or responsibilities change so that working from home is no longer suitable.
A contractual term dealing with termination of a homeworking or hybrid working arrangement should set out the circumstances in which the right to terminate can be exercised and the notice that the employer will provide.
On 6th April 2024, the day 1 right to request flexible working came into force. It represents a major shift in the approach to flexible working in the UK, reflecting demand and changing attitudes towards work life balance. Home working is part of flexible working, which is a broad term covering both when and where employees work . This home working pack keeps you ready and compliant when planning for and implementing home working specifically. It helps you review and update your policies and practices easily, allowing your staff to work from home as efficiently as possible, as cyber safely as possible, and ensuring the business remains compliant with health & safety and contractual obligations.
This article contains:
A Home working policy to add to your staff handbook and issue to your teams.
A Risk Assessment which can be completed by the employee and includes questions assessing technology, data security & confidentiality and additional information for higher risk cases, for example expectant mothers. Carrying out initial and periodic risk assessments for home working fits well into this the comprehensive plan
A list of useful sites and up to date resources. There is a wealth of information online covering every aspect of home working. At the bottom of this article are listed well known and up to date sites.
These documents can be incorporated into your hybrid working policies. There are now many reasons why an employer and an employee may agree home working – hybrid working – arrangements. It is important to explain what is expected during home working and ensure the worker and manager are clear how the new home working arrangement will work. We recommend writing to the worker to set out the changes to the employment contract and the new home working policy and ask the worker to agree to the changes so there is a clear record of the agreed changes.
Explain the change in working arrangements to employees and confirm in writing
In a new era of more flexible working arrangements, there are now many reasons why an employer and employee may agree on home working . It is important to explain to what is expected during home working and ensure employee and line manager are both clear on how the new home working arrangement will work. We recommend writing to the employee to set out the changes to the employment contract and the new home working policy and ask the them to agree to the changes, so there is a clear record of the agreed changes
Below are elements you need to consider, and we suggest cover, in a letter to your home workers. Include the home working policy and risk assessment that you can download here and amend when you send the letter. Employers should remember to give themselves the flexibility to require workers on notice to return back to working in the office.
The letter represents a change to the worker’s contract so needs to be customised for the relevant home worker. Get in touch if you need more advice and guidance on getting this right for your particular situation, or if you need a template letter to start from.
Why is it so important to issue a formal letter ?
Employers have a legal duty to protect the health, safety and welfare of their employees, including those who work from home, under the Health & Safety at Work etc. Act 1974: As part of these duties:
Employers are required to carry out a risk assessment to identify hazards and take steps to remove these. This risk assessment can be done by the employee and submitted to the employer for review.
Employers must keep a record of the findings of the risk assessment and keep the risks under review.
Employers are responsible for any equipment they provide to be safe and suitable, and must provide appropriate eye tests, on request.
New and expectant mothers are owed a special duty of care under the Management of Health and Safety at Work Regulations.
Employers should check they have appropriate insurance cover for homeworkers, including statutory employer’s liability insurance, and insurance covering any equipment or materials, and
Treat employees fairly and consistently whether at work or home working.
A Home working policy sets out the basis for working from home, the assessment criteria, the necessary arrangements and how home working will be managed going forward.
Contact us for help customising this template Homeworking policy for your particular situation.
Home worker’s risk assessment
This risk assessment should be sent with the letter and home working policy to the homeworker. It can be completed by the homeworker and includes questions assessing technology, data security & confidentiality and additional information for higher risk cases for example expectant mothers. It also includes a critically important final question so easily missed by employers.
The Health & Safety Executive have produced a working from home toolbox and video here and a display screen equipment (DSE) checklist here
Systems and data security for home workers
Protecting data security and data confidentiality in a home working setting.
Businesses still have a legal responsibility to ensure that they have sufficient data security and data protection practices in place for home working as well as health and safety considerations for employees. There are increased risks from:
– malware attacks – data breaches – use of down devices, and – adoption of new technology which has been poorly implemented, secured or assessed may arise
Employers are responsible for data security and protection of personal information. This remains the case when any member of your workforce is home working.
Employees must try to maintain the same standards of data confidentiality and security at home as they would normally do in the office.
Phishing attacks sky rocketed during the pandemic and continue to be a problem with significant numbers targeted at home workers. (At the height of the lockdown Google was blocking 18 million coronavirus scam emails every day). Do warn and train your staff to avoid a disruptive security breach and IT misuse from these attacks.
Employers may want to think about:
Putting an ‘IT and Systems in Home working’ Policy in place to manage your remote team and keep your data secure.
Asking your employees to complete a working from home assessment Offering employees (including those furloughed) online training or webinars on data security and confidentiality while working from home
Reviewing access to internal systems, security of employees own devices and updated anti-malware and virus protection across all devices.
For more information and advice on data security and confidentiality, and what to do once your risk assessments are in, contact Karen Heaton at www.dpo4buiness.co.uk who works closely with The Legal Partners when we advise clients on these issues.
Practical reminders when home working to share with your staff
Some important reminders to keep in mind and review from time to time with all existing staff and new joiners who are working from home.
Define your space – have a dedicated area for work, however small, to separate work life from home life. Ideally in a separate area, but otherwise any quiet area.
Working from home equipment – it is important to keep in regular discussions regarding employee’s working from home equipment (ie making sure laptops, monitors and headphones are functional and up to date), in order to ensure that all employees are equipped to manage their workload from home.
Sitting correctly – in an ideal situation, every employee should have a fit-for-purpose work chair and desk as well as desk equipment set up professionally. Make sure you have checked in with your team on these elements.
Working in natural light, sitting with correct posture in the best chair possible, ensuring laptop screens are positioned at eye height and using external keyboard & mouse wherever possible, are all important elements to get right. Check in with your teams on these aspects.
Take regular short breaks – when working alone, its all to easy to get pulled into the screen in front of you for hours on end. Every 20 minutes, look up, stretch, walk about, reach out to a colleague, open a window and get some fresh air. Make time to eat lunch properly.
Establish a routine – establishing some familiarity can help people stay productive and to feel in control, happier at work. Set regular hours and stick to the schedule.
Plan the day – set a plan for each day and where possible stick to it.
Employers increasingly expect line managers to take responsibility for their team’s health and wellbeing. Be mindful that more junior line managers may well need some coaching in how to do this for their teams.
Some firms have created ‘wellbeing platforms’; breaking areas down into mental wellbeing, physical wellbeing, thought leadership and combining childcare with homeworking, inviting staff to contribute.
Training & upskilling. Remember when Microsoft Excel topped the list of online training courses taken during the pandemic. Continuing training programs, and promotions, when staff are homeworking is good for morale, and for moving forward.
Below are comprehensive resources, for people professionals and line managers on managing remote teams, enabling effective home working, and kicking off discussions around hybrid and flexible working arrangements.
Back in July 2022, the Government published a new suite of online guidance to clarify employment status. The guidance provides a ‘one-stop shop for businesses and individuals to understand which employment rights apply to them’.
The latest guidance is in response tothe 2018 employment status consultationwhich was part of The Good Work plan, a policy paper published by the Government in response to the Taylor Review of modern working practices.
In its Good Work plan, the Government had originally committed to legislate to improve the clarity of tests for employment status. The Government decided to press pause on this and instead issue the clarifying guidance, reasoning that ‘the benefits of legislating on employment status are currently outweighed by the potential disruption of legislative reform, including the risk of creating more cost and uncertainly for business ..in the short term, at a time when they are focusing on recovering from the pandemic’.
One section is targeted at a business audience, (including HR, legal advisors and other groups who advise employers). It is written with SMEs and Micro Businesses in mind. There is a check list aimed at helping employers of all sizes to assess the employment status of people they engage to work for them.
The second section is written for individuals, employees and workers etc..
Guidance for Individuals This aims to help individuals, and gig economy workers in particular, understand what rights they are entitled to.
Key employment rights & entitlements by employment status
The Government’s table of key rights by employment status includes only employees and workers. So we have created a one pager showing the key rights and protection broken down across all 3 categories of employment status, including self employed contractors: a helpful reference to have to hand. Download it below.
If you need advice on auditing and assessing the employment status of the freelancers and contractors in your business, please get in touch, our details are below.
There are several alternatives to redundancy that it is well worth employers considering before starting a redundancy process. These can save cashflow on redundancy payments and maintain valuable skills and experience in the business for when demand inevitably picks up. Given the tight nature of the employment market and high costs of recruitment, these are important strategic considerations. Alongside the redundancy procedures you need to know, this article includes our check list of the alternatives to redundancy worth considering.
The aim for the business may be to retain the skills with less ongoing expenditure rather than the disruption and immediate extra cost of redundancy. It is estimated the average redundancy costs £15,000 per person and it takes a business 15 months to consolidate afterwards and regain any benefit. The skills are then permanently lost for the upturn.
If redundancies are necessary, we have included a short list of the main considerations for collective consultation and individual consultation procedures. Legal advice must be taken on these procedures, as they are complex and can lead to employee litigation at Employment Tribunals.
Alternatives that are easiest to implement
1. Non-contractual/discretionary arrangements
Imposing holiday when work is slow
Removing overtime
Changing discretionary bonus scheme
Reducing discretionary sick pay – go back to just Statutory Sick Pay
Change personal objectives/targets to match the changing objectives of the business, and review quarterly.
Check that there are no job vacancies being offered or outstanding job offers which (subject to checking) it may be possible to withdraw or consider deferring new joiners
Check for any non-permanent staff and whether agency, temporary or casual staff are actually required
Recruitment freeze
Reduction of workforce or natural wastage
Removal of temporary or contract staff
Temporary office/factory shutdowns/home working
Lay-offs if the contract already permits them
How best to go about making these changes
Impose changes on reasonable notice and follow consultation with employees as necessary.
2. Contractual arrangements where employer may have the ability to change terms
NB Check bonus schemes and employment contracts to see if the employer can change them without employee agreement.
Cutting/changing contractual bonus schemes and commission arrangements – eg whole/part of commission only paid on company receiving money from customer
Agreed downgrading or removal of benefits
Redeployment to other parts of the business (changing locations and/or duties and/or responsibilities) possibly with retraining.
How best to go about making these changes
Impose changes by giving reasonable notice to the employee and consult with employees
It may be appropriate to seek prior written consent before making these changes if they are unfavourable to employees.
Alternatives that are hardest to implement
3. Contractual arrangements where the employer has no ability to change
Short-term or flexible working (reduction in working hours – e.g. four day working week)
Salary sacrifice schemes which can reduce NICs for employers but also have income tax benefits for employees
Lay-offs
Pay freezes or cuts
Job Sharing
Pay deferral schemes
Sabbaticals (paid or unpaid – e.g. on 30% of base salary for 4 to 12 weeks)
Unpaid leave (probably shorter than a sabbatical)
Cutting/changing pension payments
Secondments to other companies
Changing/cutting bonus schemes without reasonable notice
Redeployment to be self-employed
How best to go about making these changes
Explain the seriousness of the business situation so that employees realise that they have to agree to the changes so this avoids breach of contract and unfair dismissal claims at the Employment Tribunal.
Other methods of making these changes
Imposing changes unilaterally but there is a risk of breach of contract and unfair dismissal claims
The safer way to achieve the same aim is to dismiss and re-engage the employees on new terms, but this again carries a risk of unfair dismissal claims. This is done as follows. If employees do not agree to the changes then the employer may have to impose changes by giving equivalent notice which the employer is required to give to the employee to terminate the employment contract and issue a new employment contact alongside consultation with employees. This is the so the called “fire and rehire” process. There is the risk that employees with over 2 years service still bring an unfair dismissal claim at the Employment Tribunal for an unfair process or reason. If the correct notice has been given then employees cannot bring a breach of contract claim.
Commence a genuine redundancy process and the above options may be alternatives which can be agreed with employees but there is need for collective consultation (see below).
Redundancy procedure
Companies are expected to adopt the following 3 steps when implementing redundancies:
to give as much advance warning of the impending redundancy as is reasonable in the circumstances that the role is “at risk”
to consult individually with the affected employees to consider and, if applicable, offer any available vacancies
to pay redundancy payments (both notice pay and statutory redundancy payments for employees with 2 + years’ service)
It’s vital to follow a full and fair procedure when making employees redundant and keep copies of all letters and emails sent and minutes of meetings. If you don’t follow these mandatory steps, the redundant employees can bring claims for unfair dismissal.
Redundancy procedures for collective consultations (over 20 staff)
If an employer is considering making 20 or more employees redundant within a period of less than 90 days, then the employer must also run a collective consultation procedure, in addition to consulting with the affected employees individually, before making any dismissal decisions.
In a collective consultation procedure, employers must
notify to the Secretary of State of the potential redundancies
collectively consult with all affected staff
individually consult which each affected member of staff
Collective consultation requires the election of employee representatives. This takes time and is more complex when staff are homeworking or not regularly attending the office. If the workplace has a recognised Trade Union, the Trade Union reps can act as employee representatives.
There are set periods of time required for the various stages. As an example, where the employer proposes to dismiss 20 to 99 employees within a 90-day period, the notification to the Secretary of State must be at least 30 days before the first dismissal takes effect. A proposal just to change terms and conditions of employment which if not accepted by the employees would lead to dismissal also requires collective consultation if 20 or employees are affected.
There are fines and criminal offences for management for failure to notify the Secretary of State and there is the ability for employees to seek a ‘protective award’ from the ET of up to 90 days gross pay each in the event that there is a failure to consult.
Both the collective and individual consultation processes involve decisions by employers about the size and type of the pool of selected employees (looking at roles where similar work is carried out), the process and criteria for selecting employees for redundancy and the process for allocating alternative jobs. There is numerous case law at the various Employment Tribunals about these other issues. Please seek legal advice while planning this process.
Compensation for redundancy
An employee may be entitled to some or all of the following when dismissed for reasons of redundancy:
statutory redundancy pay
enhanced/company redundancy pay
pay in lieu of notice
time off for job hunting
If an employer thinks an employee will be difficult, obtain a signed settlement agreement as part of the package for the payments made.
On 25th April 2023 the Supreme Court hears the appeal against a Court of Appeal’s decision in Independent Workers Union of Great Britain (IWGB) v Central Arbitration Committee (CAC). Back in 2021 the Court of Appeal held that Deliveroo riders do not have the right to be part of a trade union under Article 11 of the European Convention on Human Rights, because they are not employees of Deliveroo. This decision matters because it reinforces the importance of personal service and rights of substitution when looking to determine an individual’s employment status.
In its landmark ruling in Uber V Aslam back in February 2021, the Supreme Court found that a company’s actual level of control, not what is expressed in the contract, ultimately determines the employment status of its workers.
Employers will need to reconsider carefully whether their freelancers and contractors are genuinely self employed, or merely disguised workers, in the light of the ruling in the long running Uber case.
You will need to update employment contracts if they include terms which, in practice, do not reflect what is happening ‘on the ground’, and/or which seek to deny workers their basic statutory rights, for example National Minimum Wages, holiday pay and pension.
The Supreme Court unanimously upheld the original Employment Tribunal’s decision that Uber drivers were workers for the purposes of the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998. Uber had asserted that its drivers, who could log into the app as much or as little as they liked, were independent contractors working for themselves.
Uber responded to the judgment by saying that all their drivers will be workers, with entitlement to minimum wage, holiday pay, sick pay and pensions. As a result of the way in which ET cases work (with the next step being for the case to return to the ET for a decision on final compensation) this pronouncement from Uber seems to be, in effect, an offer to the drivers to settle.
The minimum wage rate will create an earnings floor (not an earnings ceiling) and was introduced alongside automatic enrolment into a pension plan, to which both Uber and its drivers will contribute. All Uber drivers receive paid holiday, based on 12.07% of their earnings, paid on a fortnightly basis, as well as free insurance to cover sickness. This insurance cover was introduced in 2018. Uber has confirmed that drivers will still be able to choose when and where they drive.
Uber’s offer however falls short in respect of the Supreme Court’s ruling that the worker rights should commence for drivers as soon as they log onto the app. Uber’s offer only provides these worker rights once the driver accepts a fare.
The Independent Workers Union of Great Britain (IWGB) is calling on HMRC to enforce the Supreme Court ruling and ensure that Uber drivers receive a minimum rate of pay from the moment they log onto the app, not only when they are carrying out trips.
The problem for Uber is that it has never wanted to control the supply side of the business. Speculation is that Uber could be flooded with new drivers, attracted by the better terms and conditions, where just logging onto the app affords a driver these worker rights. If driver numbers increase, but demand doesn’t, simple economics means this ultimately this leads to less business, and less profitable fares, for each Uber driver. To balance demand with supply, Uber will probably need to control the number of drivers available (logged onto its app) at any one time. This would represent a major change in how Uber function; it may lead some drivers to be unhappy with the new status quo, and to have preferred the very flexible situation that existed before the case was won.
The Supreme Court took the view that, when considering cases involving employment legislation designed to protect vulnerable workers, the starting points is not the contract itself: courts should look beyond the stated terms in the contract and focus first on whats happening on the ground, the every day reality of the work.
Uber had gone to considerable lengths to create a contract for drivers that avoided them being classed as workers or employees of the company. However, in reality Uber exerted significant control. Uber set the rates that passengers pay, that drivers are paid, (and the commission it takes) as well as driver performance targets that required drivers to achieve a minimum average star rating from customers, a high ride acceptance rate, or a low cancellation rate, or risk deactivation from the platform. It is precisely because of this level control that its drivers are indeed workers and not self-employed. It will now follow that where a business effectively holds the power in these situations, the law will step in to give protection and will look at what is actually going, on rather than simply what the contract says.
Claimants in the Uber case relied on existing laws for drivers to win their claim for worker status: but it took a long time, over 5 years, to get there. With the ruling will come renewed calls for changes in the law, to award these protections without the need for long drawn-out litigation.
These calls will meet with resistance in the UK from employers whose business models rely on the flexibility of a fluid, largely self-employed workforce, and from gig economy workers want to retain the freedom to work as they have. Structural changes in the UK, and global workforces, as a result of Covid-19, and the harsh light the pandemic cast on the precarious conditions of many gig and lower wage workers, are bound to speed on developments. Meanwhile, Spain, a highly unionised economy, is to be the first European country to bring in laws awarding employee rights to gig economy workers. This follows a Spanish supreme court ruling in 2020 that people working for, notably, a food delivery app, were in fact employees. The move in Spain maybe an indication that the ‘free for all’ labour market that UK employers have enjoyed, and many gig workers have endured, has perhaps had its day.
If you need advice on auditing and assessing the employment status of freelancers and contractors in your business, please get in touch. Details are below.
It’s common for all or parts of a business to change hands and be transferred from one owner to another. But what happens to the employees working for that business? In this article we explain the Transfer of Undertakings (TUPE) process, its purpose, when it applies, and 5 key things to include in a TUPE Process.
The purpose of the TUPE – Transfer of Undertakings (Protection of Employment) Regulations – which came into force in 1981 and were updated in 2006, is to protect employees who are transferring over to a different business when all or part of the business is sold and when activities are “outsourced” or when service providers change.
So when a business or part of a business transfers from the current owner (known in the transaction as the transferor) to a new owner (known as the the transferee), TUPE legislation protects the employment rights of those employees affected by the transfer, so they have the same Terms and Conditions, and continuity of employment as before.
When does the TUPE process apply?
TUPE can apply in a number of different situations and business transactions, for example:
The sale of all or part of a business
When a business is transferring specific assets such as equipment, property or IT systems
When a business outsources some of its activities to a service provider, or indeed brings some activities back in-house, e.g. recruitment, call centres, IT systems, facilities managment, payment processing.
It’s important that Employers know when TUPE applies and the potential employment liabilities if a TUPE transfer process is absent, incomplete or implemented incorrectly.
Getting it wrong can be expensive. Employment Tribunals can fine businesses (both transferor and transferee) who fail to comply with TUPE’s information and consultation obligations, up to 13 weeks gross pay per employee affected by the transfer.
As an employee, hearing that the business is being sold or transferred can be an unsettling and worrying time. From my own HR experience of managing a TUPE transfer process, for the employer too it can seem like a bit of a battle ground between transferring parties:
5 things to include in a TUPE Process
TUPE law requires that the TUPE planning process covers the following 5 steps:
Announcing to the employees affected when the transfer is going to happen.
For those organisations employing more than 10 staff, informing the employees that they will need to elect employee representatives (if there are no Trade Union Representatives or employee representatives already exist of course).
Holding frequent consultation meetings between current employer (the transferor), new employer (transferee) and transferring employees.
Making sure that employees are kept informed of the process as it is happening, with frequent email communication and face to face meetings.
The most important thing is that both sides, transferor and transferee take time to plan the TUPE process in good time;
taking into account all issues
and to assess the risks and liabilities that could arise
This ensures that, as well as employees, the businesses is protected, and is placed in the most favourable commercial position. This list of course is not exhaustive. TUPE can be complex, the map is not the territory, and recent case law rulings that TUPE protections also extend to workers, can further muddy the waters. If you need advice, assistance or a heads-up on a prospective TUPE transfer, please get in touch.
The Department of Business, Energy and Industrial Strategy published guidance on TUPE to cover developments since 2014. Acas has also published guidance for employees and employers and CIPD has published a TUPE Q&A.
Anna Venditti now freelances as a Management Accountant, having held both CFO and HR Director positions concurrently for an Internet Services and Broadcasting company, for whom she worked for 11 years, prior to the sale and TUPE Transfer of the business. Formerly a client, Anna is a key member of The Legal Partners team.
These terms and the changing age bands cause much confusion. This article explains the difference between the National Living Wage and the National Minimum Wage and outlines the new increased rates from 1st April 2022. We also highlight the penalties for employers for non compliance, where common mistakes occur, and how to avoid these.
New wage rates from 1 April 2022
From 1st April 2022, all workers aged 23 and over are legally entitled to be paid at least £9.50 per hour. This is the National Living Wage (NLW). The new rate represents an increase of 59p per hour (6.6%).
Last year the the National Living Wage age band was widened to include 23 and 24 yr olds. By 2024 it will apply to all workers aged 21 and over.
Apprentices are entitled to the apprentice rate if they’re either:
under 19 or
aged 19 or over and in the first year of their apprenticeship.
So in 2022, an apprentice aged 21 in the first year of their apprenticeship is entitled to a minimum hourly rate of £4.81.
Apprentices are entitled to the minimum wage for their age if they :
are aged 19 or over AND
have completed the first year of their apprenticeship.
So an apprentice aged 21 who has completed the first year of their apprenticeship is entitled to a minimum hourly rate of £9.18.
What is the National Minimum Wage? (NMW)
The National Minimum wage (NMW) is the minimum pay per hour that workers are entitled to by law. This includes all employees and workers, including part-time, flexible, agency workers, those on zero hours contracts and those working under apprenticeship schemes; everyone in fact except the genuinely self-employed.
There are different rates for each age group, from school leavers (16yrs) upwards. The government sets these rates and reviews them yearly. The rates change in April each year and are advised by the independent body Low Pay Commission.
All employers are legally obliged to pay the National Minimum Wage, irrespective of their size. The Government has published information on how to ensure you are paying your workers at least the minimum wage, and updated guidance on calculating the minimum wage.
What is the National Living Wage? (NLW)
The National Living wage is simply the highest band of the National Minimum Wage which staffshould be paid if they are (from 1st April 2021) aged 23 or over.
There are penalties on employers for failure to pay the correct National Minimum Wage or National Living Wage amount, these are outlined below.
The Government publishes a name and shame list of employers who fail to pay staff the National Minimum Wage. In the latest round in August 2021 191 employers were exposed, amongst these were household names (John Lewis, Welcome Break, Body Shop, Pret a manger) . HMRC found that these 191 owed over £2.1m to over 34,000 workers for breaches going back to 2011. The culprits were ordered to bay back what they owed plus a total of £3.2 million in fines.
Mistakes can occur, and any organisation employing staff at the lower end of the pay scale need to take extra care. Amongst the 191 employers fined in August 21, mistakes come when deducting wages for expenses and uniforms, when calculating variable hours and overtime hours worked, and when applying the (wrong) apprenticeship rate. With age ranges for the National Living Wage being extended, (last year in 2021 and again in 2024) check carefully the ages of staff, and ensure these are logged correctly on payroll information.
NLW, NMW Wage rates, penalties for non compliance:
HMRC enforces the NMW and NLW. They can enforce non payment by issuing a notice of underpayment. This will calculate the arrears of pay to be paid and the penalty, set at 100% of the total underpayment of the NMW, with a minimum penalty of £100 and a maximum penalty of £20,000. If an employer does not comply with the notice of underpayment, the enforcement officer can:
issue civil proceedings in the civil courts or in the employment tribunal to recover the sums that should have been paid. If, following the judgment, the debt remains unpaid, HMRC will take steps to enforce the debt.
prosecute the employer to seek a criminal conviction.
A package of measures was introduced back in 2015 with the aim of improving employers’ compliance with the NMW and the NLW.
Penalties increased from 100% of arrears to 200% of arrears (halved if employers pay within 14 days). The maximum penalty of £20,000 per worker remains unchanged.
Increasing the budget for enforcement of the NMW and NLW. A dedicated HMRC team now pursues the most serious cases of employers deliberately not paying the NMW and NLW. The HMRC team can impose fines, refer cases for criminal prosecution and, of course, name and shame worst-offending employers. HMRC’s current approach is to target the high-risk areas for non-payment of the NMW, which are currently the social care, hairdressing, retail and franchising sectors.
Individual employers can be disqualified from being a Company Director for up to 15 years for the non-payment of the NMW and the NLW.
The creation of a new position called the Director of Labour Market Enforcement and Exploitation, which will oversee enforcement of the NMW and NLW, the Employment Agency Standards Inspectorate and the Gangmasters Licensing Authority.
Employees concerned they are not being paid the NLW or NMW are advised to check the Check your pay website, check with Acas then speak to their employer in the first instance and raise a grievance if necessary. They can report an employer to HMRC and take their employer to a tribunal (following early conciliation through Acas) if the situation remains unresolved.
Finally, what’s The Living Wage?
The Living Wage is a voluntary hourly rate, independently calculated each year by Living Wage Foundation to meet the real cost of living. It’s voluntarily paid by over 10,000 UK employers. Don’t confuse the Government’s National Living Wage with this voluntary Living Wage. The Living Wage is a benchmark and a recommendation of what it will take to improve living standards now, not in 2, 3 or 5 years time. The Government’s National Living Wage and National Minimum Wage of course is enforceable by law. The Living Wage Foundation’s Living wage is voluntary. The current living wage is £9.90 per hour across the UK and £11.05 per hour in London. In order to become an accredited Living Wage Employer employers need to pay all of your employees at least a living wage, and to have a plan to extend this wage to regular on-site subcontracted staff as well.
Navigating the National Living Wage and National Minimum Wage payments correctly can be difficult, if you are in any doubt, please get in touch.
The Brexit transition period ended on 31st December 2020, meaning the end of free movement of people between the EU and the UK, and the introduction on 1st Jan 2021 of a new points-based UK immigration system for the UK.
We have summarised the main changes and key points that employers and HRs need to know, below. As the Government has said, the system will develop, so keep an eye on the pages highlighting the latest developments as they are announced here: New Immigration System, what you need to know.
The new immigration system applies equally to EU and Non EU citizens. It ends the easy availability of low, and medium and high wage, labour from EU (excluding Ireland), and it lowers the bar to entry for Non EU citizens. It does allow UK business, especially large organisations and those who currently recruit beyond the UK for roles at graduate and A level, a big opportunity to look globally for their people and to attract younger talent earlier in careers, in a broader range of roles
Main changes to the UK immigration system
The end of free movement between the UK and the EU has given the Government an opportunity to overhaul the immigration system. It represents a major change for many employers who will now need a sponsor licence to hire most eligible employees from outside of the UK. The UK points based immigration system an introduction for employers, article on .gov.uk covers the changes in detail. In summary:
There is no longer a general route for employers to recruit for temporary work or work paid at or below the minimum wage.
The old Tier 2 (general) visa category now becomes the new Skilled Worker Visa, with a few tweaks
The skill and salary thresholds have been lowered, meaning organisations can look overseas for many more types of roles than previously, and have more scope to bring on people in lower skilled roles than before
The Government has introduced tradeable points, applicants will be able to trade characteristics, such as qualifications, against a lower salary to get the required number of 70 points to be eligible
and removed the resident labour market test, speeding up the process of hiring from overseas
Employers will need to have a sponsor licence to hire most workers from outside the UK. This does not apply when hiring Irish citizens or EU citizens eligible for status under the European Settlement Scheme, of which more below
The cost of hiring workers from the EU becomes significant: £9,500 for the visa alone for a 5 year Skilled Worker visa. This represents a weighty investment for smaller organisations looking to hire a limited number of roles at a mid salary level.
There will be no cap on the numbers of people who can come to the UK on the Skilled Worker route.
For employers who are heavily reliant on EU workers, the immediate priority is to apply for a UK Visa Sponsorship Licence to de risk your business against a potential drop off in EU candidates.
Employers can call the sponsorship, employer and education helpline for advice on: 0300 1234699 Monday – Thursday 10am – 3pm
Most employers will have already ensured the EU, EEA and Swiss nationals on their teams have applied for settled status in the UK under the European Settlement Scheme.
The deadline for applying to the European Settlement Scheme is 30th June 2021. Check that all the EU, EEA and Swiss nationals on your teams know about the deadline, know how apply to the European Settlement Scheme.
There are some exceptions. The salary threshold is lowered further to £20,480 for migrants with:
a job offer in a specific shortage occupation (as listed on the Government’s Shortage Occupation Lists (SOLs).
a PhD relevant to the role they are looking to take up
a PhD in a STEM subject relevant to the role they are looking to take up
The lower salary of £20,480 p.a equates to a minimum hourly rate, in force from April 6 2021, of £10.10 for non UK national on a Skilled Worker Visa, based on a 39 hour working week.
There are different salary rules for workers in certain health or education jobs, and for ‘new entrants’ at the start of their careers.
The Shortage Occupation List (SOL)
The salary threshold of £25,600 p.a is lowered for ‘shortage occupations’:
listed in the Government’s UK wide general Shortage Occupations List (SOL), such as engineers, software developers and similar, and
those listed in the Shortage Occupations List for Healthcare and Education, including care home and healthcare workers & managers, nurses & nursing assistants, medics and secondary school language and science (Physics) teachers.
This means that a nurse on £22,000 a year could still enter the UK as a ‘shortage occupation’.
The Government will carry out frequent reviews of the SOLs. Eight occupations in the health and care sector as well as modern language teachers have been added to the SOL following MAC recommendations published in September 2020. Sector trade groups and federations, such as the construction and hospitality trade bodies, lobby to have roles included in the SOL. Expect lots of activity from farmers, hospitality and food and drink lobby groups going forward, and keep an eye on the SOL pages linked here.
Identifying whether a job meets the required skill level
All jobs have a corresponding Standard Occupational Classification (SOC) code. Each SOC code has a designated skill level. This determines whether the job meets the requirements of the Skilled Worker route.
As we have highlighted, the minimum skill level has been lowered under the new system, so that A-level grade jobs, such as plasterers, plumbers, carpenters, (but not waiters or waitresses) are now classed as Skilled by the Government’s Migration Advisory Committee (MAC). Chefs have been removed from the Shortage Occupations List (SOL) but continue to be eligible for the Skilled Worker Visa route due to the changes in what is classed by the MAC as Skilled roles, and the new lower salary thresholds.
How the new UK points based immigration system works
The new regime is a points based system in part.
Applicants must fulfil the mandatory a job offer and language requirements (in Test 1) to score 50 points. They can then score at least 20 points (in Test 2) to reach the necessary 70 points required to be eligible for the Skilled Worker Visa. At Test 2 stage, applicants can trade characteristics, such as their qualifications, against a lower salary, to get the required number of points.
Gov.uk has full details on the points based system for the Skilled Worker Visa, with examples and case studies. There are also full details of the other types of visa available, worth checking, at the same link.
The Government is intending to introduce a a Highly Skilled Worker Visa, allowing workers rated as “global talent” such as scientists and academics, musicians and artists, to enter the UK without a job offer if they have the required points and are sponsored by a relevant professional body. Their numbers will be capped. The Government is consulting on this and it is not anticipated until at least 2022.
Short term business traveller visas: Frontier Worker Visa
A note about the Frontier Worker Visa. For businesses who have EU nationals frequently travelling to the UK for work (outside times of covid-19 restrictions), the Government is keen for organisations to use the new Frontier Worker Visa. This allows EU nationals to continue to travel regularly to work in the UK, and to do more work wise than they would be allowed under a visitor visa, providing some continuity in this period.
What are the costs involved in obtaining a sponsor licence
The costs involved of applying to the Home Office for a licence to become an approved sponsor are outlined here. The costs vary depending on the size of the organisation, but for SME’s the licence fee is currently £536. The Government says that most applications can be dealt with in less than 2 months, you may be able to get a faster decision for an additional fee of £500.
Remember that this is just the fee for the licence. There will also be costs for issuing certificates to each individual migrant under the licence, and additional application costs such as, immigration skills charges, immigration health surcharge, before the costs of the visa application itself.
European Settlement Scheme
The European Settlement Scheme allows EU, EEA and Swiss nationals and their families to continue to live, work and study in the UK beyond June 30th 2021. Given the concerns about the supply of EU nationals in the UK post-brexit, in the context of this article, it perhaps worth ending on this note. According to provisional figures, at the end of January 2021, the Home Office had received 5 million applications to the European Settlement Scheme since the scheme opened. More than 2.4 million of those have been granted settled status, allowing them permanent leave to remain. A further 2 million have been granted pre-settled status.
The new immigration rules represents a big learning curve for organisations that have, so far, not needed to recruit EU nationals formally in this way. It is important to refer to the Government pages highlighted in this article, because they change regularly. Good planning is vital, make sure you know the main immigration rules as they relate to your business, the risks if your business relies on temporary, ad hoc EU workers, and the opportunities the new scheme presents. Do get in touch if you need help.
With the challenges of remote working and employee concerns and worries about returning to workplace post Covid, confident handling of employee grievances must be a key part of every line manager’s skill set. This is a 5 step guide to handling an employee grievance swiftly and effectively in order to save management time, preserve employee relations and keep the business out of Employment Tribunals. It includes two golden rules of handling employee grievances to successful resolution.
Grievances are concerns, problems or complaints raised by an employee about workplace issues such as their work, workload, where they work or who they work with. These grievances are best dealt with at an early stage informally, but employers must be prepared to handle employee grievances that cannot be resolved informally using a formal employee grievance procedure.
In the current Covid situation many employees have additional worries and concerns about being in the workplace again or travelling to and from work. They may have specific medical or situational reasons for these concerns, for example that they or someone they live with is vulnerable in medical terms. The employer will not and cannot be expected to solve all such worries, but employers will be required to consider in a reasonable way any such concerns raised via a grievance process.
It is also possible that issues have become magnified whilst people have been working remotely. For some employees, isolation from their colleagues may have led to heightened unhappiness with issues and employers may find themselves dealing with more grievances than usual. Conversely, for some employees, working remotely may have been a more positive situation and it will be the return to the office environment that causes them more concern.
It’s important for every business, whatever its size, to have a formal grievance procedure in place, which takes into account the ACAS Code of Practice. The Acas Code of Practice on disciplinary and grievance procedures is recognised by Tribunals as the best practice way of handling a grievance situation and can be used alongside the Acas step by step guides on formal grievance and disciplinary procedures. Include your formal grievance procedure in the staff handbook, and, importantly ensure your staff are aware of it. Employers have a duty to provide staff with details of any workplace disciplinary and grievance procedures.
Discipline and Grievance – Acas Code of Practice
The procedure should require the employee to set out in writing the nature of their grievance and for employers to deal with the grievance fairly and consistently. Do not ignore any concern or complaint raised by an employee, however casual the manner in which it was raised.
These are the 5 steps:
Informal Action. Initially and as soon as they can the line manager should have a quiet word with the employee making the complaint. Problems can often be settled quickly and informally in the course of everyday work. This may be one of the problems that has arisen during lockdown – the lack of normal day to day interaction at work to resolve issues as they arise. Employer can respond to verbal grievances with a verbal response, but keep a note of what is said.
However, if the grievance is not settled at this stage or circumstances make this route inappropriate, then, if they have not already done so, the employee should be requested to submit a formal grievance letter.
Invite employee to a formal meeting. This should be held in a private and confidential room between the Manager designated to hear the Grievance and the employee who may be accompanied by a work colleague or Trade Union official. This is the opportunity for the grievance to be thoroughly discussed and any witnesses called.
Investigation. Depending on the complexity of the grievance it may be necessary to adjourn the meeting so that further investigation may take place before any decision is taken.
Communicate Decision and complete records. After the grievance meeting and any investigations have taken place, the employer needs to decide whether to uphold or dismiss the grievance and communicate this decision to the employee in writing without unreasonable delay, usually within 10 working days. The HR Director or Manager handling the employee grievance must ensure that the minutes of all formal grievance meetings are taken and copies given to the employee for information. The minute taker should not be part of the discussions about the outcome of the grievance or appeal other than to record the key points of the discussion.
Appeal. if the Grievance is rejected or partially rejected then the employee has the right to appeal against that decision. The appeal should be heard promptly and wherever possible by a Manager not previously involved in the case. The employee may be accompanied as before and notified in writing of the decision, again within 10 working days is standard practice.
Two golden rules when handling employee grievances to successful resolution
A very helpful question to ask an employee raising a grievance is “what outcome do you want from this grievance?” This tends to focus the employee’s mind on the solution he or she is looking for rather than just the problem.
Be prepared for a grievance. Check that there is an up to date procedure in place, published in the handbook, that supports the resolution of grievance issues in your workplace.
Please also note an employee can raise a grievance during a disciplinary process. The disciplinary process may be temporarily suspended or if the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently. The size of the business may require an expert outside advisor e.g experienced HR professional to hear the Grievance, the Appeal or even the Disciplinary.
Bear in mind also that where the Grievance Procedure itself is not appropriate then with the employee’s consent an external Mediator might be more suitable. Click here or view our presentations for the slide share on this topic.
Estimated reading time: 18 minutes 2024 is an exceptionally busy year for employment legislation. Most of the major new laws came into force in April this year. These employment law updates will bring you up to speed on the important new laws, their implications and the actions to take. The table of contents above lists the headline changes. The two main themes are increasing workers' rights and provisions for working parents. The Government has announced the annual increases to statutory payments and to employment tribunal awards from April 2024. Keep an essential reminder of these at your fingertips by downloading our concise one page Employment Law Factsheet, which includes helpful explainer notes, here: annual-increases-to-statutory-payments-tribunal-award-payments-From-April-2024-25-_The-Legal-Partners-Employment-Law-Factsheet-1 Statutory payments of course include sick...>>
On 6th April 2024, the day 1 right to request flexible working came into force. It represents a major shift in the approach to flexible working in the UK, reflecting demand and changing attitudes towards work life balance. Home working is part of flexible working, which is a broad term covering both when and where employees work . This home working pack keeps you ready and compliant when planning for and implementing home working specifically. It helps you review and update your policies and practices easily, allowing your staff to work from home as efficiently as possible, as cyber safely as possible, and ensuring the business remains compliant with health & safety and contractual obligations. This article contains: A Home...>>
There are several alternatives to redundancy that it is well worth employers considering before starting a redundancy process. These can save cashflow on redundancy payments and maintain valuable skills and experience in the business for when demand inevitably picks up. Given the tight nature of the employment market and high costs of recruitment, these are important strategic considerations. Alongside the redundancy procedures you need to know, this article includes our check list of the alternatives to redundancy worth considering. The aim for the business may be to retain the skills with less ongoing expenditure rather than the disruption and immediate extra cost of redundancy. It is estimated the average redundancy costs £15,000 per person and it takes a business 15...>>
On 25th April 2023 the Supreme Court hears the appeal against a Court of Appeal’s decision in Independent Workers Union of Great Britain (IWGB) v Central Arbitration Committee (CAC). Back in 2021 the Court of Appeal held that Deliveroo riders do not have the right to be part of a trade union under Article 11 of the European Convention on Human Rights, because they are not employees of Deliveroo. This decision matters because it reinforces the importance of personal service and rights of substitution when looking to determine an individual’s employment status. In its landmark ruling in Uber V Aslam back in February 2021, the Supreme Court found that a company's actual level of control, not what is expressed in the contract,...>>
Practical guidance for employers on how to tackle sexual harassment at work. With homeworking due to Covid-19 still the norm, its very easy for employers to take the view that sexual harassment 'at work' is not a current worry. But of course remote working does not provide immunity for employers. Sexual harassment can still take place on meeting platforms and discussion groups, and employers can be liable. Consider all online platforms used by your company, both the formal and the informal, effectively as the 'workplace' . Remind employees that ' if they don't want to read it on social media or meeting platforms, don't write it down'. It's sensible to include a policy about employees' use of digital platforms and social...>>
These terms and the changing age bands cause much confusion. This article explains the difference between the National Living Wage and the National Minimum Wage and outlines the new increased rates from 1st April 2022. We also highlight the penalties for employers for non compliance, where common mistakes occur, and how to avoid these. New wage rates from 1 April 2022 From 1st April 2022, all workers aged 23 and over are legally entitled to be paid at least £9.50 per hour. This is the National Living Wage (NLW). The new rate represents an increase of 59p per hour (6.6%). Last year the the National Living Wage age band was widened to include 23 and 24 yr olds. By 2024 it will apply to all...>>
The Brexit transition period ended on 31st December 2020, meaning the end of free movement of people between the EU and the UK, and the introduction on 1st Jan 2021 of a new points-based UK immigration system for the UK. We have summarised the main changes and key points that employers and HRs need to know, below. As the Government has said, the system will develop, so keep an eye on the pages highlighting the latest developments as they are announced here: New Immigration System, what you need to know. The new immigration system applies equally to EU and Non EU citizens. It ends the easy availability of low, and medium and high wage, labour from EU (excluding Ireland), and it lowers the...>>
With the challenges of remote working and employee concerns and worries about returning to workplace post Covid, confident handling of employee grievances must be a key part of every line manager's skill set. This is a 5 step guide to handling an employee grievance swiftly and effectively in order to save management time, preserve employee relations and keep the business out of Employment Tribunals. It includes two golden rules of handling employee grievances to successful resolution. Grievances are concerns, problems or complaints raised by an employee about workplace issues such as their work, workload, where they work or who they work with. These grievances are best dealt with at an early stage informally, but employers must be prepared to handle...>>
Wednesday 11th November 2020.This article was written in May 2020 and is now out of date. If you have landed here, (via a cached or bookmarked page), please follow the link to our latest article that explains the extended CJRS furlough scheme from 1st November 2020, containing information on how to apply for the scheme and a template furlough agreement letter to send to employees to gain their agreement prior to being put on the scheme. Furlough scheme to end 31st October HMRC Portal for claiming the grant: here, and at GOV.UK www.gov.uk/guidance/claim-for-wages-through-the-coronavirus-job-retention-scheme, refresh the page and click the 'how to claim' link. This HMRC step by step guide, outlines the specifics of what you need to do to claim...>>
In this article we highlight the potential risks and benefits for businesses of allowing employees to use their own personal mobile devices (tablets, smartphones, laptops or notebook computers) for business purposes. We talk through the important issues to consider when putting together an effective Bring Your Own Device(BYOD) policy, to maximise the upsides whilst limiting the risks. Fuelled by the surging use of smartphones, high speed internet services and 4G as well as the growth in remote and flexible working, staff today have come to expect to use their own devices to conduct business. Employers of every size have been quick to adopt a BYOD approach. Although the following figures are from the USA, the BYOD statistics below show impact of BYOD in the workplace and its widespread...>>
Joint Ventures 25 FAQs - a guide for CEOs and CFOs 1 What is a Joint Venture? A “Joint Venture” is a structure where two (or more) businesses create a separate Joint Venture business to pursue a common goal. But any kind of collaboration with another company could be described as a Joint Venture.2 What types of Joint Ventures are there? There are many examples of collaborations between businesses – common ones are the following structures where two or more people share resources and risk: setting up a separate Joint Venture company where each party has a shareholding and can appoint directors to carry out a specific (and often finite) project such as development of a new product contractual arrangements such as...>>
You need a Heads of Terms Agreement when you have a complicated, detailed project to negotiate and you need to get the main points set down in writing at the beginning of discussions, to ensure there is a deal to be done so to speak, and to avoid undue time wasting by delving too far into the detail in the early stages. A Heads of Terms Agreement Document, also known as a Memorandum of Understanding (or MOU) is extremely useful to show that the main points are now “agreed” and cannot be renegotiated. A Heads of Terms Agreement (MOU) is important when you need to: 1 Record what are the main critical points of the deal such as price, what is being...>>
There has been a dramatic increase in the numbers of claims being brought to Employment Tribunals against Employers since fees were abolished in July 2017. In January to March 2019 single claims - defined as being claims made by a sole employee against their employer for a breach of their employment rights - were running at 10,000 per quarter, compared to an average of 4,250 claims per quarter throughout 2016. This means that single claim receipts are running at approx 40,000 per year now, compared to around 18,000 per year prior to fees being abolished. From years of experience working alongside HR Directors and solving thousands of HR problems, we have compiled these golden rules to help you de risk your business against...>>
From the 6th April 2016, all UK non-listed companies and LLPs will be required to identify and register all persons with Significant Control over the company. These are also called registers of Beneficial Ownership.This register will need to be included in all UK Company Annual returns from April 2016 onwards.The government has published guidance for companies and LLPs on the register of people with significant control requirements. It is a criminal offence for Directors to fail to comply with the new disclosure laws or to register Persons with Significant Control (PSCs) in the annual return. The new requirement is set out in the Small Business, Enterprise and Employment Act 2015.Control is broadly defined and includes:• individuals who directly or indirectly hold more than 25% of...>>
If your business deals with consumers or sells over the internet, you need to know about the Consumer Rights Act 2015 and make sure your business Terms and Conditions (Ts and Cs) comply with the latest consumer rights laws. These laws came into force on 1 October 2015. If you haven't reviewed your Ts and Cs in recent years, or were unaware of the changes in consumer rights laws, this Q & A will bring you up to date and explain what changes you must make to ensure your Business Terms and Conditions comply. These new laws increase consumers’ rights, most notably giving consumers the right to a 30-day refund. From 1st October 2015, everyone selling goods, services, digital content to consumers must comply with new laws protecting Consumer Rights. Regardless of...>>
Here are the most common legal terms we include in export contracts to protect UK exporters and questions The Legal Partners team are asked.1 Find out who is the customer in the export contract?It may seem obvious but from the outset of negotiations it is important to know whether the UK exporter is dealing with the direct end customer or via an agent or distributor in the country where the goods are to be sold.2 Is the UK exporter or the Asian importer insuring the goods? The export contract will need to state clearly who is insuring the goods and from what point in the export process. Any specified Incoterm incorporated into the export contract may need to be amended for the...>>
Confidentiality agreements (sometimes called Non-Disclosure Agreements (NDAs) or Information-Exchange Agreements) should be signed at an early stage in negotiations, ideally before any information is exchanged.In this article the descriptions Confidentiality agreement and NDA both mean the same agreement.The agreement confirms that both exporter and Asian importer will keep confidential the terms of the negotiations, any sensitive product or service information and the terms of the eventual export contract.It is often the first document entered into, before the document setting out the principles is signed – often called Heads of Agreement or Heads of Terms or Memorandum of Understanding. See our article Heads of terms: how to negotiateWhat legal protection do NDAs give an exporter?An NDA ensures that information disclosed during...>>
What is hybrid working? Hybrid working is a type of flexible working where an employee splits their time between the workplace and working remotely, in most cases from home. This article discusses the employment law implications of hybrid working, addressing the specifics of what employers need to do when they have made the decision to introduce long term home working or hybrid working arrangements.Hybrid working is just one part of the larger category of flexible working that includes part time, flexitime, annualised hours and job sharing as well as hybrid working. Hybrid working covers where work is done. The proportion of workers in the UK who worked entirely from home was relatively low until the Covid 19 pandemic. Hybrid working proved...>>
Estimated reading time: 5 minutes From 26 October 2024, there is a new employer duty to prevent sexual harassment. Employers will be under a mandatory duty to take reasonable steps to prevent the sexual harassment of their staff at work. In the wake of the #MeToo movement, the Government committed to shoring up protections for employees by imposing a positive duty on employers to prevent sexual harassment at work. As of 26 October 2024, this duty is contained in the Worker Protection (Amendment of Equality Act 2010) Act 2023 (The Act). The Act introduces a new duty for employers to take reasonable steps to prevent sexual harassment of employees. It can increase the potential compensation for victims by a further...>>
Estimated reading time: 5 minutes The Government has issued new guidance allowing the return of the 12.07% “rolled up” method for calculating holiday pay for irregular hours and part year workers. Following the introduction of the nattily titled Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 in January this year, employers can use rolled-up holiday pay as an additional method for calculating holiday pay for leave years beginning on or after 1 April 2024. The new regulations define irregular hours workers and part year workers like this: An irregular hours worker - typically found in the hospitality industry- is classed as such if the number of paid hours they work is wholly or mostly variable. They include zero hours contract workers, freelancers and gig...>>
Estimated reading time: 7 minutes From 6th April 2024, all employees have the right to request flexible working from Day 1 in their role, removing the previous 26 week wait. The Flexible Working (Amendment) Regulations 2023 represent a major shift in the approach to flexible working in the UK, reflecting demand and changing attitudes towards work life balance. Alongside this are a number of changes to the procedure for requesting flexible working, which were also brought into force on 6th April, by the Employment Relations (Flexible Working) Act 2023 (Commencement) Regulations 2024. Failure to adhere to this new procedure can lead to employment tribunal (ET) claims, with compensation of up to eight weeks’ pay (capped at £643 per week) and...>>
Estimated reading time: 13 minutes Last year the Government introduced a number of family-friendly new laws and provisions aimed at increasing support for working families. This resulted in the following family-friendly laws coming into force from 6th April 2024.This guide summarises all these new laws, what you need to know, what they offer working parents, and the implications for businesses and employers. Use it to update your staff and to get contracts, policies and practices ready. New Family-friendly laws from 6th April 2024: Enhanced protection from redundancy for pregnant women and new parents Increased flexibility in paternity leave New right to carers leave which increases the very short term carers leave (i.e emergency unpaid time off for dependents) Introducing paid...>>
As part of its policy paper "smarter regulation to grow the economy" in May 2023, the Government announced plans to limit the length of non-compete clauses in employment contracts to three months. This 3 month cap on non-compete clauses represents a major shift that could see employers making greater use of garden leave clauses and imposing longer notice periods to protect the business’ interests.This article explains the proposed changes and looks at the potential implications for employers. What is a non-compete clause? A non-compete clause is one type of post termination restriction (PTR) , also known as “restrictive covenants” which can be used by employers to restrict employees in their activities after their employment has ended. Broadly, non-compete clauses prevent...>>
Estimated reading time: 3 minutes Back in July 2022, the Government published a new suite of online guidance to clarify employment status. The guidance provides a ‘one-stop shop for businesses and individuals to understand which employment rights apply to them’.The latest guidance is in response to the 2018 employment status consultation which was part of The Good Work plan, a policy paper published by the Government in response to the Taylor Review of modern working practices. In its Good Work plan, the Government had originally committed to legislate to improve the clarity of tests for employment status. The Government decided to press pause on this and instead issue the clarifying guidance, reasoning that ‘the benefits of legislating on employment status are...>>
It's common for all or parts of a business to change hands and be transferred from one owner to another. But what happens to the employees working for that business? In this article we explain the Transfer of Undertakings (TUPE) process, its purpose, when it applies, and 5 key things to include in a TUPE Process. The purpose of the TUPE - Transfer of Undertakings (Protection of Employment) Regulations - which came into force in 1981 and were updated in 2006, is to protect employees who are transferring over to a different business when all or part of the business is sold and when activities are “outsourced” or when service providers change. So when a business or part of a business...>>
This checklist sets out the key issues employers should consider before entering into a settlement agreement with an employee, and how and when to use settlement agreements. Settlement Agreements used to be called Compromise Agreements. The Government renamed them in back in July 2013 in order to promote a practice of resolving issues within organisations rather than at Employment Tribunals. To the same end, also in 2013 the Government introduced Pre-Termination Negotiations, or "protected conversations" as they are also known. These are designed to give employers a safe route to broach the offer of a Settlement Agreement for an employee to leave without this leading to an unfair dismissal claim, by - importantly - following the ACAS Code of Practice on Settlement...>>
Businesses are facing disruption from all angles. Brexit and of course the Covid-19 pandemic are the latest additions to a complex landscape facing companies. This brings opportunities of course as well as risks and we are seeing renewed interest and activity in business acquisitions as the country moves beyond Covid-19. We highlight some of the pitfalls of buying a business, and how to avoid these. What is the right structure for the acquisition? A buyer can buy either the shares of the company that owns the target business or simply buy the assets which make up that business: What is a share purchase? The buyer buys the whole company (including liabilities that it may not know about). What is an...>>
This guide explains the offences introduced by the Bribery Act 2010, the penalties, and highlights practical steps that business can take to keep within the law. What is bribery?Transparency International (a non-governmental anti-corruption organisation) defines bribery as “the offering, promising, giving, accepting or soliciting of an advantage as an inducement for an action which is illegal or a breach of trust.” Why was the Bribery Act 2010 introduced? The Bribery Act 2010 was introduced to strengthen the existing bribery and corruption laws in the UK. The Organisation of Economic Co-operation and Development (OECD) had repeatedly criticised the UK system for being weak and ineffective compared with the more robust regimes in other countries, such as the US Foreign and Corrupt Practices Act. What are the offences under...>>
International Commercial Terms (Incoterms) are internationally recognised standard trade terms used in export contracts or international sales contracts. They are used to make sure the buyer and seller know: who is responsible for the cost of transporting the goods, including insurance, taxes and duties. where the goods should be picked up from and transported to. who is responsible for the goods at each step during transportation The current set of Incoterms is Incoterms 2010. A copy of the full terms is available from the International Chamber of Commerce What do the Incoterms mean? Incoterms are used in contracts in a 3-letter format followed by the place specified in the contract (eg the port or where the goods are to be picked...>>
All deadlines and staging dates for auto enrolment have now passed. This means that under the Pensions Act 2008, every employer in the UK must put their qualifying employees in a workplace pension scheme (called auto enrolment) and, where appropriate, pay contributions. If you employ just one person, you are classified as an employer and have certain legal duties. This article from the pensions regulator web site explains more about ongoing pensions duties for employers.If you are employing staff for the first time (or haven't caught up with auto enrolment) act now and click on this link to the pensions regulator web site, to find out what to do and by when. Auto enrolment, Employer contributions increasing in 2019. The minimum amounts that employers and their...>>
Workplace Mediation has long been gathering momentum, becoming increasingly popular amongst UK companies who now use it as an effective way to resolve disputes at work. Mediation can provide solutions which meet the needs of all parties; its cost effective, fast (90% are resolved within one day), avoids disruption, removes the debilitating effects of unresolved conflict and can pave the way for restored workplace relationships. The Centre for Effective Dispute Resolution (CEDR) published their latest Mediation Audit in May 2021. This 2 yearly survey of UK commercial lawyers and mediators, assesses the case numbers, take up of mediation and attitudes towards it. Up until September 2020, the number of mediations carried out in England and wales increased by 38% (to 16,500 mediations in the 2020 report,...>>
The Consumer Rights Act (CRA) 2015 fundamentally increased all obligations and liabilities a business has towards its consumer customers. Most notably the CRA 2015 gave consumers the right to a 30 day refund on purchases. The new laws came into force on 1 October 2015. If your business deals with consumers or sells goods, services or digital content online, and if you haven't already done so, its absolutely time to review and update your customer contracts, Terms and Conditions etc, to comply with these new laws.This article explains what every business needs to know about the Consumer Rights Act 2015 and how to comply. To shortcut the whole process, we have also created a Consumer Rights Act Toolkit for Business, so you can easily comply with these new laws,...>>
Our Social Media Legal Toolkit is a simple way to ensure you avoid social media liability and keep your business out of trouble,to preventing any litigation from social media misuse by employees. It includes:Social Media Policy+IT & Systems usage Policy +1 hour of our advice or training with your staff to clearly spell out what they must, must not do, something Apple Retail UK and Wetherspoons undertook wisely to their huge advantage when it came to the crunch. For what happened and to find out practical steps you can take to avoid Social Media liability, read our article: For a fixed price of £950 + plus VAT you are ready to protect your business immediately.To purchase your toolkit, email or call us directly, our details are below.>>
Exposure through Social Media is rapidly becoming part and parcel of an organisation’s day to day operation. Even if your business isn't actively on Social Media platforms such as Twitter, Facebook or messaging Apps such as WeChat or WhatsApp, your employees most likely will be.Most employers get into trouble over, or on social media because they haven’t put policies in place and they haven't set expectations with staff of what is good and bad behavior online.Below we've put together a 5 point summary of the risks involved and the steps you need to take to avoid Social Media misuse and protect your business from liability.It provides an overview of the law in this area. Please talk to us for a complete understanding of how it may...>>
With new shared parental leave laws in place, it’s a good time to think about how to handle multiple requests for shared parental leave from male and female members of your workforce. Employees can make request for shared parental leave from February 2015 for all birth due dates/matching dates (for adoption) from April 2105 onwards.Watch this slideshare for the changes to maternity and paternity leave entitlements and a quick, visual overview of the key points to remember. Shared parental leave 2015 guidance for parents and employers from The Legal Partners If you haven't already done so, now is the time to create a Shared Parental Leave policy to include in your Employee Staff Handbook. With this in mind we have developed a Shared Parental Leave...>>
This is a detailed guide to managing employee stress at work for HR professionals, Employers and Line Managers.It covers the law relating to stress that you need to know and practical tips on how you and your company can manage employee stress, minimizing it's effect on the business, being protected from claims, and ensuring you take the appropriate steps to help your employee. What is stress? The Health & Safety Executive (HSE) defines stress as the "adverse reaction people have to excessive pressures or other types of demand placed on them". There is sometimes confusion between pressure and stress. It is healthy for staff to have challenges to meet; too much pressure however, can be harmful to health. In addition,...>>
Zero-hours contracts, get a fixed price review from The Legal Partners We have created a Fixed Price Review of your zero-hours contracts to help businesses be prepared for these changes, minimise the administrative workload that comes with them and avoid the PR, discrimination and legal risks that threaten to arise.Our £950+vat fixed price review will assess the current zero-hours contracts your business uses and ensure you and your teams are prepared and covered for the news laws, in whatever form they take, when they arrive . What are zero-hours contracts? Courtesy of BBC article news/business-27219654 A zero-hours contract is one used for casual working. The employer does not guarantee to provide the casual worker with any work and pays the worker...>>
The UK Bribery Act 2010 made Company Directors legally responsible for bribery in their organisations, and personally liable for not preventing it.In recent years global organisations such as Avon, Glaxo China, BAE Systems and Rolls Royce have fallen foul of the Serious Fraud Office investigations and paid millions in fines on Bribery and Corruption charges. In 2016, for the first time a UK company Smith and Ouzman and it’s Directors were handed a £2.2m fine and 4 1/2 yrs (suspended) after being found guilty of bribing foreign agents, following a 4-year investigation by the SFO. The length of this investigation and the sentencing of a "typical UK SME" rather than a global corporation sends a strong message to UK companies of every size.Being smaller and less...>>
Zero-hours contracts – latest guide for employers What are zero-hours contracts? A zero-hours contract is one used for casual working, under which the employer does not guarantee to provide the worker with any work and pays the worker only for work actually carried out. The worker is expected to be available for work when or if called on by the employer.Zero hours contracts are not illegal. If they are freely entered into, a zero-hours contract is a legitimate form of contract between individual and employer. Zero-hours contracts can be used by employers to provide a flexible workforce to meet a temporary or changeable need for Staff. Examples include a need for workers to cover:- unexpected or last-minute events (e.g a restaurant needs...>>
A 60 second summary of the new flexible working laws, in pictures. Employers and HR Directors can be resourced with the essential knowledge you need to know when planning Flexible Working Policies and responding to Flexible Working requests. View the slideshare below New flexible working laws made easy - a guide for Employers, HR Directors from legalpartners>>
Why appoint a Non-Exec Director? Bringing a Non-Executive Director or Chairman into a company can be a very smart move for CEOs, CFOs and for the Board, particularly at times of significant change or upheaval in the business. The objectivity and wise experience of the right Non-Exec will be a great asset for businesses of all sizes, and I mean from start-ups upwards.A Non-Exec Director’s experience in the following areas can be invaluable: industry contacts and knowledge strategic vision built on his/her past success as a Board Director, for example – assessing new markets or a company acquisition or fund-raising. The recession that followed the financial crisis in 2008/ 2009 has given Directors a lot of invaluable knowledge and experience for dealing...>>
From 6 April 2014 onwards, a new system of Early Conciliation (EC) requires employees to take some compulsory steps before they can make a claim against an employer. It is mandatory in almost every case (there are a few very limited exceptions).The Early Conciliation system requires employees who believe they have an Employment Tribunal (ET) case to inform Acas before their case can proceed through an ET.The new system should not deter employers from attempting to resolve issues informally or through mediation. The Early Conciliation system requires employees who believe they have an Employment Tribunal (ET) case to inform Acas before their case can proceed through an ET. Early Conciliation, the new procedure in employment disputes. This is how it works. An employee will be...>>
Are you concerned about your liability as an employer when your team use social media and email at work? This guide highlights the risks of employer liability when your employees are using social media or sending e-mails and gives some practical suggestions of how to minimise those risks. The huge growth in popularity of social media in recent years has created challenges as well as opportunities for every business. Blogs and similar media present a unique opportunity to get a positive image of a business into the public domain as well as providing an efficient way of sharing information, knowledge and best practice with others. The other side of the coin is that legal liabilities can arise from the use of...>>
Hiring new employees: the legal issues you need to know This checklist highlights the key legal issues involved in hiring new employees, the legal issues you need to know and what you need to do. Hiring new employees: before advertising Make sure all staff involved in hiring new employees have had equal opportunities training (and they continue to receive it while working for your business).Draw-up the following documents: job description which sets out the title and main purpose of the job, the place of the job holder within your business and the main tasks or responsibilities of the post. a person specification which details the experience, know-how and qualifications, skills and abilities necessary for the job in question. The requirements can be split between...>>
If your business is already importing from China, or considering Chinese imports, you will want to ensure the process, and the relationship with your Chinese suppliers, goes smoothly right from the beginning.Stories of lost sales and key promotions unfulfilled due to a slip up at the Chinese factory are common and can make companies cautious of taking the first step.Here are some key tips and useful practices to adopt with your Chinese suppliers, to ensure that your goods arrive as expected, on time, and in the right quantity, consistently. We’ve included some front line advice on what to do if problems do arise. First things first, do your research. Check the validity of your potential supplier's chinese factory & company. Speak to...>>
Businesses that make redundancies have a duty to look for alternative employment for any potentially redundant employees. A dismissal is likely to be unfair if, at the time of the dismissal, the business did not consider whether any suitable alternative employment existed within its business. This business briefing sets out the key issues a business needs to consider. Extent and duration of the search A business is not obliged to create alternative employment for redundant employees where none already exists. However, the business should make a thorough search for alternative employment and document that search. This will enable the business to show the steps it has taken if it has to produce evidence in defence of an unfair dismissal claim....>>
This redundancy checklist summarises the key issues that a business should be aware of when dealing with a redundancy situation.When can a redundancy situation arise?Redundancy encompasses three different types of situation: Business closure. Workplace closure. Reduction of workforce. Collective consultation If a business is making 20 or more employees redundant over a period of 90 days or less, the business must: inform and consult appropriate employee representatives. notify the Department for Business, Innovation and Skills (BIS). An employment tribunal can award up to 90 days’ pay for each employee if the business has not consulted adequately. The business can also be fined for failing to notify BIS. The business should also ensure that it follows a fair procedure during the...>>
Use this TUPE checklist to help make the Transfer as efficient and liability free as possible. When does TUPE apply? TUPE applies to a “relevant transfer”. A relevant transfer can be where: A business or part of a business is sold. Work is outsourced from a client to a contractor. Outsourced services are transferred from the original contractor to another contractor or back to the client (ie in-sourced). A client brings the outsourced services back in-house. Further analysis and advice is always needed to confirm whether TUPE applies or not.Whether TUPE does or does not apply will have significant financial implications on any proposed transaction. Which rights are automatically transferred under TUPE? Employees transfer to the new employer on their...>>
Here are our top ten tips for avoiding employment tribunal claims. 1. Ensure that contracts of employments are properly drafted and kept up to date. It is a legal requirement that employers provide employees with a writtenstatement of terms no later than 2 months after their employment begins. Thereis certain information that must be contained in the written statement of termswhich employers need to ensure is contained within their contracts. 2. Tailor your staff handbook to your business. It should contain all the policies which set out best practice on how yourmanagers should deal with day to day personnel matters. Use it to communicateemployers’ and employees’ duties and obligations within the workplace to avoidmisunderstandings. 3. Communicate staff handbook to all...>>
