Why your company needs unconscious bias training

unconscious bias training

Today is World Day for Cultural Diversity, for Dialogue and Development. It provides an opportunity to reflect on our understanding of the value of cultural diversity and the benefits of learning to “live together” better.

It’s also a good time to examine why ‘unconscious bias’  is one of the key reasons why diversity is often not achieved in the workplace.

The "unconscious" consists of the processes of the mind which occur automatically and are not available to introspection.

According to Professor Timothy Wilson’s studies and book “Strangers to ourselves”, we consciously process one piece of information for every 275,000 pieces of information we unconsciously process.

If we had to process all of the information that we encountered during a day, we would not be able to make any rational decisions as our brain would be overloaded!

Unconscious bias, therefore, happens as a result of our brain taking a short cut when faced with an option or decision, using our past knowledge to make assumptions to inform that decision. As individuals, our biases are influenced by a huge range of factors including our background, cultural environment and personal experiences.

  • How does unconscious bias impact decisions made in the workplace?

The Covid-19 crisis has in in some companies, thrown a light on long held negative assumptions around the ability of individuals, whole departments or in many cases whole businesses being able to productively and effectively work at home. Of course the experience of remote working has been hugely different across the range of companies and industries that have been thrown into conducting a real time experiment on managing their business and workforce in a very different way and before COVID-19, many employers and managers would not have entertained a request to work from home, purely on the basis of an unconscious bias against this way of working.

Most judgements and opinions we hold reflect an element of subjectivity, which is why unconscious bias can influence almost all of our decisions.

In the workplace, unconscious bias impacts:

  • Attraction and recruitment
  • Salaries
  • Mentoring opportunities
  • Assigning work
  • Listening to ideas and suggestions.
  • Performance reviews
  • Determining policies
  • Treatment of customers
  • Promotions

If you’re hiring, promoting or giving more responsibilities to a specific individual  based on ‘gut feeling,’ you’re likely doing so on the basis of unconscious bias. When you are under pressure or lacking time, your brain will try to make the decision making process easier for you and favour things you are familiar with or that you prefer on an unconscious level.

For instance, you might hire someone because they remind you of someone (due to their physical appearance or where they studied) that has already been successful in your company or to yourself.

  • What would unconscious bias training achieve?

The objective of unconscious bias training is to raise awareness of biases in the workplace and should be designed to adjust automatic patterns of thinking, and ultimately eliminate discriminatory behaviours.

Imagine the kinds of things that would happen in the workplace if we lived in a world without unconscious bias!

  • The best person for the job would be hired (according to a study conducted by McKinsey & Company, picking the right person for a job can lead to someone being up to 800 times more productive).
  • People would be promoted solely as a result of performance.
  • Employees would feel they are treated fairly and retention would rise (according to research undertook by the Chartered Institute of Personnel and Development).

Overcoming unconscious bias is crucial to retaining and attracting great talent.  A Glassdoor survey found that, nowadays, a company’ culture and ethics are more valued than salary.

IBM and MIT professors Thomas Malone and Patrick J. McGovern have been studying innovation and collective intelligence. They realised that group intelligence is not equal to the combined intelligence of the individuals in the group, but instead, it is determined by each individual's different thought processes, their different social backgrounds and the proportion of women within the group.

According to a Forbes study, a diverse set of experiences and perspectives is crucial to

innovation and the development of new ideas.  Hiring employees that are able to challenge each other will not only boost productivity but will also give your company a competitive edge. According to McKinsey & Company research, companies in the top quartile for gender or racial and ethnic diversity are more likely to have financial returns above their national industry medians.  Aside from these enormous benefits, removing unconscious bias in the workplace would remove the risk to employers of expensive discrimination claims.

If your business is interested in exploring the benefits of addressing unconscious bias in the workplace please get in touch to discuss how our training can your business on its journey to a sustainable future.

How will employee family friendly policies play a role in navigating what could be a ‘new normal’ as we emerge from COVID-19?

Working parents are well used to the juggle of balancing work and child care, but a new level of difficulty was thrust upon them when the sweeping public health safeguards introduced by the Government in the face of the current pandemic saw schools and nurseries close. Many mums and dads will now be trying to work from home whilst simultaneously entertaining children, home-schooling and fulfilling the never ending snack demands.

The willingness of employers to show flexibility to their employees with caring responsibilities varies widely and the charity Working Families, dedicated to promoting work-life balance, estimates that the number of people getting in touch with its Legal Advice Service has quadrupled in comparison to the months prior to the lockdown. Reputational considerations should form part of any employer’s strategy during the lockdown, and how employees have been treated during this unprecedented time could have a lasting effect on how employers  are perceived by both employees and in the wider market long after the restrictions start to lift.

However even before the lockdown employers were increasingly looking at ways to make themselves stand out from the crowd and attract new talent, and this included promoting their family friendly policies.  Also, the government were consulting on whether employers should have a duty to consider if a job can be done flexibly. 

Work-life balance and flexibility tend to feature highly on attributes that might attract employees to a certain company, and this is especially true for working parents and those with other caring responsibilities.

A lot of companies might use the statutory position as their starting point, typically mirroring the various types of leave and pay provided for as a statutory minimum. However, the low take up of shared parental leave demonstrates that the statutory schemes are not always reflective of what a workforce might actually need or value. In today’s modern world families come in all shapes and sizes, with a variety of needs. Of course it might not always be possible to cater for everyone, but more creative employers are giving thought to what other family-friendly policies they might be able to offer. Insurance firm Zurich announced late last year a wide-ranging suite of family-friendly policies including additional support for parents whose children are born prematurely, paid leave to support through the IVF process and paid leave to support people through miscarriages.

Not all companies will be in a position to offer such generous policies, and a careful cost analysis would need to be carried out, however there are more cost neutral options, such as flexible or agile working arrangements, home working and job sharing that could be of huge help to working families. Even giving more thought to the culture and attitudes to work life balance could have a significant impact on how ‘family friendly’ your workplace really is.

Research also shows that creating enabling and flexible environments can enhance productivity, creativity and wellbeing in staff. Some studies have also been able to demonstrate that family friendly policies have led to a reduction in absenteeism and a lower turnover of staff, meaning cost savings for employers. These findings reflect that having flexible and family friendly policies can help in building and maintaining a sustainable business.

There is increasing talk of ‘the new normal’ when it comes to working practices once we start to emerge from the strictest phase of the current lockdown, with many predicting that work culture could change dramatically. Perhaps some of the family friendly policies mentioned above will become part of that ‘new normal’, but there is still plenty of room to think creatively if businesses want to mark themselves out as a family friendly employer. LexLeyton can help businesses to create strategies for developing and maintaining if you family friendly policies to benefit culture and sustainable growth. Contact us for a free consultation and to discuss how we can help.

Being faith-friendly – Employer’s guide to Ramadan

If recent weeks have shown us anything, it is the power of togetherness.  We have adapted and sacrificed for one another. We have adopted collective behaviour and demonstrated personal discipline. As a community we have supported those in need or less fortunate than ourselves.

The holy month of Ramadan commences on the evening of the 23rd of April and ends on the evening of the 23rd of May this year.. This is an Islamic festival which is observed by Muslims across the globe. Ramadhan lasts for a lunar month and during this time many Muslims refrain from eating or drinking during hours of daylight. There is more to fasting than may first appear. Muslims also adopt a mindset of caring for those in their community, supplying cooked food and essentials to those who struggle to provide for themselves. They pray for and support their neighbours. They pay fitrana for every member of their household; money to support charitable causes.

Whilst some Muslims typically seek to take time off work during Ramadan, many are likely to continue working during the month if they are able.

Fasting may effect productivity and concentration levels as well as increasing fatigue. It is important for employers to understand the challenges facing their employees during this time, many of whom may already have been significantly impacted by the effects (either related to their work or family contexts) of business and social response to the COVID -V19 pandemnic.This year will be very different for Muslim employees and as traditionally, communal activities and prayer are observed and encouraged. Due to the COVID-19 crisis, access to important individual and communal prayer facilities, quiet rooms and multi faith rooms have been largely suspended with these restrictions potentially negatively impacting on employee wellbeing during an already difficult period.

To support employees who are observing this festival employers should consider the following key areas


1. Accommodate flexible working

ACAS guidance and the ECHR Code of Practice suggest adopting a practical approach and discussing with the employee whether there are any temporary arrangements which could be put in place for the duration of Ramadan.

One way in which to do this is to offer employees who are observing Ramadhan the option to work flexibly, this could involve:

  • Holding meetings at more suitable times during the day;
  • Arrange working hours differently for the month – some staff may wish to start their day earlier or later or work through their lunch hours.


2. Rest breaks

Individuals observing the festival should be encouraged to take rest breaks where needed. They may also wish to practise their faith more during Ramadan than they do at other times of the year and employers should be sensitive to this, and try to accommodate requests to take more breaks during the day than would ordinarily be taken.


3. Annual leave requests

Employers may find that there is a high demand for annual leave from those who are observing the festival, particularly during the end of Ramadan which is marked by the festival of Eid. It is difficult for employees to plan in advance because Ramadan is based on the lunar calendar, so annual leave requests may be made at short notice.

Employers should ensure that they deal with annual leave requests in a fair manner and in line with the annual leave policy. Where it is not possible to grant leave, employers should provide reasoned, rational justifications for the refusal. In addition, where annual leave requests are granted for those observing the festival, employers should ensure that other employees do not suffer any detriment as a result.

4. Awareness, tolerance and understanding

Values such as awareness, tolerance and understanding are the cornerstone of nurturing a healthy employer/employee relationship. Employees will feel valued where employers try to understand what is important to them, whether that is in relation to their faith or otherwise.

Employers could introduce a clear policy on Ramadan, or better yet, on religious festivals generally, setting out what the expected employee standards are, and what employees observing religious festivals can expect in terms of support. Having such a policy should have an affirming impact on employees.

Some employers go a step further and proactively engage in recognising religious festivals with their workforce.

Being an open, accepting and considerate employer where you can show yourself as progressive in your thinking and approach will no doubt have a positive impact on the ethos of your organisation, and will help to ensure that you continue to attract a diverse and balanced workforce.

For employers wishing to know more, below is an image of the Ramadan timetable published by Glasgow Central Mosque for 2020, setting out prayer times and other key information. Muslims will fast during the daylight hours, between the times highlighted in turquoise. This information may vary depending on location.

6 April 2020 Changes – Equal treatment for agency workers

As part of the various commitments set out in the Good Work Plan, the Agency Workers (Amendment) Regulations 2019 and the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2019 came into force on 6 April 2020.

WHAT ARE AGENCY WORKERS?

An agency worker contracts with an employment business to work for one or more of their clients (or hirers), they are therefore not directly recruited by the businesses where they work.

WHAT ARE THE CHANGES?

  • Removal of the Swedish derogations

The Swedish derogation provided an exemption from the right to equal treatment. In fact, agency workers that had a “Pay Between Assignment Contract” could give up the right to pay parity with comparable permanent staff in return for a guarantee to receive a certain amount of pay when they had gaps between assignments.

  • Equal Treatment for all Agency Workers

All agency workers will have a right to pay parity after having worked for the company for the qualifying period (12 weeks).

  • Protection from Unfair Dismissal and Detriment

Where an agency worker is an employee, they will be unfairly dismissed if the principal reason for their dismissal is that they have (or they are suspected to have):

  • Brought proceedings or given evidence at proceedings under the Agency Workers Regulations.
  • Alleged that a temporary work agency has breached the Regulations.
  • Refused to forgo a right under the Regulations.

Agency workers also have the right to not be subjected to a detriment for taking such action, or being suspected to have taken such actions.

WHAT STEPS DOES YOUR BUSINESS NEED TO TAKE?

If you are an Employment Business (Agency):

  • Requirement to provide statement to existing agency workers

By no later than 30 April 2020 you must provide agency workers, whose existing contracts contain a Swedish derogation provision, with a written statement advising that, with effect from 6 April 2020, those provisions no longer apply.

Agency workers will have the right to bring a claim in the employment tribunal if you fail to do so.

  • Requirement to provide a Key information document for new agency workers

From 6th April 2020, you must provide agency work-seekers with a document that must be headed “Key Information Document. It must be easily understandable and on a maximum of two pages.

The document must include information about:

  • The identity of the employment business.
  • The type of contract
  • Minimum pay and methods of payment.
  • Non-monetary benefits.
  • The nature and amount of any potential deductions
  • Annual leave and payment in respect of such leave

If your business uses Agency Workers

If your company currently hires agency workers who are employed under Swedish derogation contracts, these changes could have significant financial implications if you have to pay them at least the same rate as direct recruits.

Take the time to check with the agencies you contract with and understand the terms of their contracts with their agents.

April 2020 Employment Law Changes – A Recap of What’s New

Even before the COVID-19 pandemic, 2020 was shaping up to be a year of significant change in employment law.  Notwithstanding the many developments which are being brought in to support companies in responding to the threat of Coronavirus, other major changes planned for this year have still taken place (with one major exception).  Here, we revisit some of the important changes affecting your business in 2020.

Employee Written Statement of Terms

Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 (SI 2018/1378) came into force on 6 April 2020

A written statement of terms, usually all covered in a contract of employment, must now be given on or before the first day of employment to all new workers – this previously had to be given within two months of employment starting and only to employees.

In addition, more information than previously must be included in the statement. For instance the written statement now has to include a description of working hours, paid leave, probationary period, training entitlement and benefits.

What does it mean for your business?

The requirement to produce statements on or before day one means that employers must now know the full details of the job offered from the outset and amend internal processes to ensure contracts are issued before new staff begin. Clear communication between managers, recruiters and candidates will make all the difference.

Holiday Pay

Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 (SI 2018/1378) came into force on 6 April 2020

The reference period for determining an average week’s pay for holiday pay purposes has now increased from 12 weeks to 52 weeks (or, if the worker has been employed for under 52 weeks, the number of complete weeks for which the worker has been employed).

What does it mean for your business?

A review of current working practices and calculation methods will be important. If your company has an external payroll function, request confirmation that the changes have been factored into the calculation methodology.

Agency Workers

The Agency Workers (Amendment) Regulations 2019 (SI 2019/724) came into force on 6 April 2020

Temporary work agencies must provide agency work seekers with a “Key Information Document,” which must include information on the type of contract, the minimum expected rate of pay, the mode of payment and who will be making the payment.

What does it mean for your business?

Whilst not anticipated to have a significant impact on the private, voluntary or public sectors, these changes will provide greater transparency for workers about the terms they are signing up to.

Pay Parity

Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2019 came into force on 6 April 2020

The “Swedish Derogation“ has now been removed from the Agency Workers Regulations 2010.  Employment businesses are no longer able to avoid pay parity between agency workers and direct employees.  Before, if agency workers had a “Pay Between Assignment Contract”  they would give up the right to pay parity with comparable permanent staff in return for a guarantee to receive a certain amount of pay when they had gaps between assignments.

Agencies must also inform relevant agency workers by 30 April 2020 that the Swedish Derogation no longer applies.

What does it mean for your business?

If your company previously hired agency workers under Swedish Derogation contracts, then these changes could have significant financial implications.  In most cases, your company will now have to pay worker at least the same rate as direct recruits.

Take the time to check with the agencies you contract with and understand the terms of their contracts with their agents.

Informing and Consulting with your Employees

The Employment Rights (Miscellaneous Amendments) Regulations 2019 (SI 2019/731) came into force on 6 April 2020

Employees have the right to request that their employer sets up or changes arrangements to inform and consult (I&C) them about issues in their organisation. The requirement to inform and consult employees does not come about automatically.

Following these changes, in a business with 50+ employees, only 2% of the workforce now need to request I&C for this to become a requirement, subject to certain exceptions.  Prior to April 2020, that threshold was 10% of the workforce.

What does it mean for your business?

Even though this is European-derived legislation, the UK Government has decided to strengthen the requirement to I&C.  Employers can take a pro-active approach and introduce an agreed I&C arrangement before any request.  

National Insurance Contributions

The National Insurance Contributions (Termination Awards and Sporting Testimonials) Act 2019 came into force 6 April 2020

All termination payments above the £30,000 threshold are now subject to Class 1A National Insurance contributions (NICs).

That will affect payments and benefits that are received in connection with the termination of a person’s employment.

What does it mean for your business?

Currently, certain forms of termination awards are exempt from employee and employer NICs and the first £30,000 of a compensatory payment on termination is free from income tax. This change will prevent employers seeking NIC exemption through disguised termination payments.

Parental Bereavement

The Parental Bereavement (Leave and Pay) Act 2018 came into effect on 6th April 2020

Employed parents or carers who have lost a child (under the age of 18 or a stillbirth after 24 weeks of pregnancy) are entitled to two weeks’ leave (irrespective of their length of service).  This may be taken in one block or in two separate blocks of one week. Where an employee is eligible, the leave is paid at the same rate as statutory paternity pay i.e. £151.20 per week or 90% of weekly earnings if lower.

What does it mean for your business?

This reform not only concerns biological parents but also includes adopters, foster parents and guardians, as well as close relatives or family friends who have taken responsibility for the child’s care in the absence of parents. It is therefore very important to think very carefully before deciding who to grant this leave to.

Offering time and flexibility to bereaved families at a time that best suits them might also be extremely beneficial to bereaved parents.  Providing this support at such a difficult time demonstrates the values and culture of a business, as well as strengthening the relationship between the company and its employees.

IR35

Draft Finance Bill which was published on 11 July 2019, changes were expected in April 2020 but have been postponed to 2021

The off-payroll working rules were introduced in 2000 and require that individuals who work like employees, but through their own company, pay similar taxes to other employees.

With the new reform, large and medium-sized organisations in the private sector will become responsible for assessing the correct employment status of the contractors they engage to work for them.

From April 2021, all payments made to personal service companies will be treated as payments of employment income on which the client (or a third-party intermediary) must account for tax. This shifts responsibility for IR35 tax compliance from the personal service company to the client or intermediary that uses the services of the personal service company.

What does it mean for your business?

The Government is keen on making sure everyone is paying the proper amount of tax for their work and there can be substantial financial impacts for your company if it appears there are errors in the employment status of the contractors you engage to work for you.  Although the changes have been postponed, it would be prudent for businesses to continue to prepare as best they can, seeking advice from qualified specialists.

New UK Visas and Immigration and Home Office guidance

UK Visas and Immigration  - Coronavirus changes:

UK Visas and Immigration and the Home Office have issued new guidance on how they will approach visa expiration issues during the current Coronavirus pandemic.  These largely deal with the practical problem of restricted travel from the UK during the crisis.

Extension of visas:

Those whose visa would otherwise expire between 24th January and 31st May 2020 will have their visa extended to 31st May 2020.  This is due to the travel restrictions which are likely to prevent many people from leaving the UK. 

This will not happen automatically, and those affected will have to email to CIH@homeoffice.gov.uk with various personal details in order to request an extension to their visa.

Switching to a long-term visa:

Those who are looking to apply to switch from a short-term leave to remain to a long-term visa are also being assisted.  For some visas, an individual must leave the UK in order to apply for a long-term visa.  This rule has been relaxed until 31st May 2020.  Such applications can be made online.

For more information, visit the Home Office’s website at https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents

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Potential job losses – how to speak to employees

Simon Mayberry

Insights from Simon Mayberry, Senior Associate, LexLeyton.

These are difficult times for employers across the country, especially in industries where homeworking is not an option. Managers are having to hold extremely difficult conversations, but positive results can come from these with a good deal of preparation, a sense of humanity and an authentic and open-minded approach on both the part of the employer and the employee.

It is tempting for employers to panic and resort to redundancies. However, this might not be necessary, especially following the announcement of the Chancellor’s support package on Friday. Employers should take time to consider what options are open to them, such as employees agreeing to temporary unpaid leave, relaxing rules on time off for dependants, encouraging the use of annual leave or, now, furloughing staff. There are many options other than redundancy and we have seen tremendous support from employees in the retail and hospitality sectors in agreeing to short-term measures to save jobs in the long-term.

Sustainable businesses rely on their people. I think we were all touched by the Chancellor’s words on Friday when he spoke of wanting to look back and think of kind deeds done by all during this difficult time. Our experience has been that where businesses engage with their employees with humanity and respect, they stand a much better chance of pulling together for the good of the everyone.

The message must be for employers to assess which roles are required to keep operating, to engage and reach agreement with those who are not in this group (and who cannot work from home) and to work together to minimise job losses. The Government’s Coronavirus Job Retention Scheme will play a large part in this, but it is not a panacea. Job losses will be necessary for many employers, but where these are unavoidable they should be managed in as compassionate a manner as possible. Unlike some well-publicised companies, I would hope that, like the Chancellor, we would all wish to look back and think that we had acted with kindness during this crisis.

If you need help form one of our lawyer on this subject request a free consultation here

Gender Pay Gap Reporting Deadlines suspended for this year

Due to the ongoing Coronavirus outbreak, it has been announced yesterday that enforcement of the gender pay gap reporting deadlines will be suspended for this year.

As a result, employers who had a duty to publish their gender pay gap report for 2019-2020 will not be expected to do so (although they can do so if they wish).

The deadline for publishing reports for relevant public sector bodies was next week (30 March 2020) with private and voluntary sector employers shortly after on 4 April 2020.

In a joint statement, the Minister for Women & Equalities and the Equality and Human Rights Commission Chair, said:

“WE RECOGNISE THAT EMPLOYERS ACROSS THE COUNTRY ARE FACING UNPRECEDENTED UNCERTAINTY AND PRESSURE AT THIS TIME. BECAUSE OF THIS WE FEEL IT IS ONLY RIGHT TO SUSPEND ENFORCEMENT OF GENDER PAY GAP REPORTING THIS YEAR.”

More details on the announcement can be found here.

Coronavirus SSP update – new Regulations Published

In response to the Covid-19 pandemic, the brand new Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 were published today! They provide that Statutory Sick Pay (SSP) will be available to anyone isolating themselves from other people in such a manner as to prevent infection or contamination with coronavirus, in accordance with guidance published by Public Health England, NHS Scotland or Public Health Wales.

The government had also promised that SSP would be paid from day 1 instead of day 4 and that rather than needing to go to the doctor, employees and workers would be able to get a sick note by contacting NHS 111 but we await those changes.

http://www.legislation.gov.uk/uksi/2020/287/pdfs/uksi_20200287_en.pdf?mc_cid=03442dec30&mc_eid=dafd1b7b46

The Government tackles coronavirus in the budget!

Coronavirus was the first matter evoked by the Chancellor of the Exchequer today in his budget announcement.

This is hardly surprising given the impact that it is having across the UK and the globe.

Key points to note are:

  • He confirmed that SSP will be paid from day 1 rather than from day 4;
  • Small employers with fewer than 250 employees will be refunded for statutory sick pay that it pays to its employees for the first 14 days which will help with the financial strain these employers are feeling;
  • Rather than going to the doctor, employee and workers will be able to get a sick note by contacting 111;
  • Statutory sick pay will be paid to all employees who are advised to self-isolate even if they don’t have symptoms; and
  • Business rates will be abolished for firms in the retail, leisure and hospitality sectors with a rateable value below £51,000

For the full summary of government's tax and spending plans for the year ahead, please see here.

Lexleyton will of course update you as we receive more information.”

Certainty on Shared Parental Pay?

The rules on Shared Parental Leave (SPL) and Pay have been in place for almost five years.  Uptake has been low in general, caused by a combination of the complicated nature of the rules and a lack of promotion by employers.  Fortunately, some clarification has arrived which will be helpful in promoting SPL on both of those fronts.  Until recently, the thorny question of enhancing Maternity Pay but not enhancing Shared Parental Pay had been the cause of uncertainty.  Whether this amounted to sex discrimination was the basis of two cases: Hextall v Chief Constable of Leicestershire Police and Ali v Capita Customer Management Ltd, although each argued the point differently.

The Court of Appeal found in both cases that it was not discriminatory to enhance Maternity Pay while only offering Shared Parental Pay (SPP) at the statutory minimum level.  The rationale for the first of these decisions was based on the identity of the correct comparator for a claim of direct discrimination (the correct comparator for a man on SPL is a woman on SPL, as opposed to a woman on Statutory Maternity Leave).  In terms of the claim for indirect discrimination, the Court made reference to the special nature of Maternity Leave (and the consequent more favourable treatment that is allowed under the law for new mothers) along with pointing to the materially different circumstances of women on Maternity Leave and men on SPL.

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Happy International Women’s Day!

8 March 2020 is International Women’s day. Having come a long way since the UN first celebrated this day in 1957, there are still areas where inequality for women and girls persists. 

From an early age, boys and girls are unconsciously treated differently which causes discrepancies when it comes to what they think they can achieve. Girls generally perform better at school yet, according to a study conducted by Heidrick & Struggles, only about 5% of working women are in CEO and upper management positions. As highlighted by the Institute for Fiscal Studies, in an overwhelming amount of companies, women do not receive the same promotion opportunities or pay parity with their male counterparts.  

Ensuring that women have the opportunity to participate to their full potential in the labour market provides personal fulfilment and financial autonomy to them, however there are also a wealth of benefits for employers

  • It will increase your business’s financial profitability

Diverse workforces generally achieve higher levels of performance in many of the most common metrics used to measure commercial success. According to a study by McKinsey & Company, businesses in the top 25% for gender diversity on their executive team were 21% more likely to experience above-average profitability, than companies in the bottom 25%.

In a survey conducted by Accenture, those numbers are primarily explained by the fact that more women in an office conjures more innovation, as well as more challenging and robust decision-making. An individual’s mindset is invariably shaped by their experiences and ideas. Diverse teams increases the variety of experiences that team can bring to bear.  Practically, it is a reasoned hypothesis that a diverse team is more likely to examine business strategy and challenges from several angles.  Solutions become more informed and optimised as a result.

  • It will improve your business’s reputation

In this modern age of digital advertising, social media and other ultra-fast communication tools, news travels fast. Businesses that have a track record of giving equal opportunities for promotion and development to every employees obtain both reputational and commercial advantages. 

Being an inclusive company is also crucial for companies to attract new customers. A demonstrable culture and ethos of inclusion permeating a business may be critical in situations such as tendering for contracts.

  • It will widen your talent pool

In any industry, it makes little sense to draw from a smaller source of potentially suitable candidates.

That means that the reward that comes with developing, retaining and advancing women is significant: it allows companies to tap into the broadest possible pool of talent.

The upcoming generation of workers, for example, harbour forward-thinking and inclusive perspectives and expectations when it comes to working in a diverse environment. 

What does this all mean on a day where we celebrate womanhood? It means everything. The direction of travel is in recognising and appreciating the commercial, ethical and moral power of feminism. In business, more power to women is often aligned to more success. This international Women’s Day, we will raise a glass to that.

Coronavirus – the cost of “doing the right thing”

In a sneak preview of the Government’s proposed emergency legislation to deal with Coronavirus, Boris Johnson used today’s Prime Minister’s Questions to announce his intention to relax the rules on Statutory Sick Pay (SSP).

With the prospect of widespread absence from work, there has been a great deal of comment on whether the current rules on SSP go far enough to protect workers who are unavoidably unable to come to work.  The weekly rate of SSP is currently £94.25, rising to £95.85 from April.  SSP is payable from the fourth day of absence, with the first three days termed ‘waiting days’.  Crucially, not all absent workers are eligible to receive SSP – in line with many employment-related payments, it is subject to the Lower Earnings Limit, which is currently £118 per week.  Frances O’Grady, General Secretary of the TUC, and Jeremy Corbyn have pointed out that there are, by their estimation, two million workers who fall below this limit and who will receive no SSP. 

Download Coronavirus - Guidance for Employers now for free

The Government’s proposal is to remove waiting days and therefore to make SSP payable from day one.  In the announcement, the Prime Minister appeared to tie this move to the expected need for a period of self-isolation – a step which he underlined that the Government has not requested from the workforce to date.  Jeremy Corbyn has sought to describe the situation facing workers as a “terrible choice between health and hardship.”   In response to questioning, the Prime Minister suggested that nothing will be done to remove the Lower Earnings Limit from the eligibility criteria; rather, the application process for Universal Credit may be amended.

The Government has a difficult job in balancing the need to respond to a potentially damaging virus with the need to protect employers – since 2014, companies have no longer been able to reclaim SSP from HMRC and therefore foot the bill themselves.  While removing the Lower Earnings Limit would extend SSP to those low-paid workers who will miss out, the Government has consulted on ways of reforming SSP on various occasions over the past few years and these consultations have not suggested such a move. 

With the potential scenario of a large number of workers taking time off due to Coronavirus itself and the potential of two weeks of self-isolation thereafter, the cost to employers could conceivably be huge.  The Government’s proposal appears to take a middle ground somewhere between maintaining the status quo and relaxing the SSP rules fully.  In terms of the financial impact on employers and employees, this approach is better news for both and strikes a much-needed balance.

The rhetoric of the Prime Minister has perhaps belies the fear that employers will have.  His continued repetition of self-isolation being an example of workers “doing the right thing” carries a certain implication.  Where self-isolation is necessary, clearly it is the ‘right thing’ in dealing with a potential medical crisis.  However, self-isolation for the sake of it (or where this might be an abuse of the current situation) is not to be rewarded.  Employers have ways of ensuring that absence is genuine and also the power to make sure that those workers who are “doing the right thing” do not suffer as a result of this.  Although the development of the virus is hard to predict, a common sense approach from all parties will hopefully prevail to allow businesses and workers to respond to any threat in a measured way. Ensuring you have a clear policy and procedure that will enable you to implement and manage the new rules is vital. Contact us if a free consultation will help your plan to get ready for the change.

Zero discrimination day

Zero Discrimination Day is observed every year on 1st March. Although the day is universal in nature and aims to highlight issues related to discrimination in general, there is a particular focus on HIV, AIDS and other health-related issues.

The HIV virus attacks the immune system and weakens the body’s ability to fight infections. AIDS is the final stage of HIV infection when the body can no longer fight certain infections and diseases. While there is no cure for HIV, there are treatments available that can alleviate symptoms and enable infected individuals to live relatively normal lives.

HIV is deemed to be a disability under the Equality Act 2010 from the point of diagnosis. An employee with HIV does not have to notify their employer of their diagnosis. If they do, then the employer must ensure this sensitive information is kept confidential and is only disclosed to others with the employee’s express consent.

Where an employer is aware that a particular employee has HIV, they must consider what reasonable adjustments they may need to make. The employer must also take care not to subject the employee to any detriment as a result of their medical condition as to do so could amount to disability discrimination.

Certain jobs might be off limits to an HIV positive employee, particularly types of work where there may be contact with blood or body fluids. Examples include work in health care and social services.. However, careful risk assessing any specific role would be fair and reasonable, so as to avoid making any discriminatory presumptions.

Discrimination does not occur in a vacuum. A December 2019 report by the Office of National Statistics on disability pay gaps in the UK found that in 2018 disabled workers faced a startling 12.2% pay gap compared to non-disabled workers.  The pay gap varied depending on the type of disability suffered. Workers who suffer from progressive illnesses such as HIV suffered a pay gap of 7.4%. This inequity has led to increased calls for pay gap reporting to be extended from gender to race and disability as well.

There is an ever growing body of evidence showing that increasing diversity and removing discrimination in an organisation increases profitability and innovation.  Further, there are links between increased diversity with stronger corporate governance and problem-solving. In short, the resilience and effectiveness of a business can often be directly connected to a diverse and inclusive environment. 

Successfully sustaining a culture where all employees thrive in an environment free from discrimination should be the aim of all businesses and those who have achieved that status, which is still too rare should be rightly proud to be leading the way in making the working world a better place for all. If you would like a soundboard on how to increase inclusivity and diversity in your business get in touch. It really could be the best step you could take in building a business fit for a sustainable future.

Post Brexit – Employee Settled Status And Pre-Settled Status

settled status

In the week when the UK Government announcing proposals for a points-based immigration system, we consider the position of the EU citizens already living and working in the UK.  3.2 million applications have already been received by EU citizens seeking permission to remain and work in the UK. With business leaders concerned about meeting the flexibility of the UK workforce to meet future labour market demands, here is LexLeyton’s guide on what UK employers ought to know about the EU Settlement Scheme.

Even though freedom of movement continues to apply for EU citizens during the transition period, on 31 December 2020, EU citizens will no longer have an automatic right to live and work in the UK.

EU citizens currently living in the UK need to apply for ‘settled’ or ‘pre-settled’ status before 30 June 2021 under the EU Settlement Scheme.

30 June 2021 is the deadline for applying; not for being granted either settled or pre-settled status.

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Whistleblowing

Section 47B of the Employment Rights Act 1996 says that an employer must not treat a worker badly (subject them to a detriment) if they have 'blown the whistle' on wrongdoing (made a 'protected disclosure'). In Tiplady v City of Bradford Metropolitan District Council, the Court of Appeal looked at what being treated badly 'in employment' means.

The employee was a senior planning officer for the Council. During her employment, she was also in contact with the Council as a householder about sewer issues and building a shed on her property. The employee thought the Council dealt with these issues unreasonably. She resigned and claimed she had been treated badly because she had blown the whistle on the sewer and shed issues.

The employment tribunal said that she could not bring whistleblowing claims under section 47B. She had 'blown the whistle' as a householder rather than an employee. Any detriment was levelled at her in a private capacity and not as an employee. (The tribunal didn’t much like the facts either, saying that the detriments either hadn’t happened or were unrelated to a protected disclosure.) The employee appealed. The Employment Appeal Tribunal and the Court of Appeal agreed with the employment tribunal. The question was whether any detriment had been suffered 'as an employee'. In this case any alleged detriments were levelled at the employee as a householder and not as an employee. She couldn’t bring a claim under section 47B.

This situation will be rare but might be helpful to businesses who provide services to individuals who also work for them. Although detriments in a field other than employment can't be actioned under s47B, retaliatory treatment should always be avoided in business. It's better to deal with issues head on rather than trying to dodge them.

Equal pay

The Equality Act 2010 sets out the law in relation to equal pay. Male and female workers should be paid the same for doing the same job (like work), work which is given the same rating under a job evaluation scheme (rated as equivalent) or work of equal value, unless there is a reason for the pay difference that is not discriminatory. This non-discriminatory explanation is called the 'material factor defence'. It means that there is something (a material factor) other than discrimination which explains the pay difference. If a man is paid more than a woman doing the same job because the market rate for the job was higher at the time of his recruitment, that might be a material factor defence.

Equal pay has hit the headlines recently. The BBC's Samira Ahmed won her case for equal pay. The employment tribunal agreed that her work on Newswatch was 'like work', or work of equal value, to Jeremy Vine's job on Points of View. The BBC were unable to show that the difference in pay was due to something other than sex discrimination.

What do high paid BBC executives have to do with small businesses? The BBC equal pay cases are a reminder of how unequal pay between the genders is still a problem, even when the individuals are in plain sight in front of a national audience. The best way to avoid equal pay claims is to have transparent processes for determining pay, with jobs rather than people determining pay rates where at all possible.

Employees’ happiness

Are you doing enough at work to contribute to your employees' happiness? In his new book 'Can we be happier? Evidence and Ethics', Richard Layard looks at happiness in general in the modern world. He advocates the Happiness Principle, where people should aim to produce the greatest happiness possible and create the least misery. He looks at how employers can play a part in this plan.

Layard quotes a study by Daniel Kahneman which looked at the times of day which are happiest for people. The study found that the worst time of day is when an employee is with their boss. The study also found that most people don't like their jobs. It's difficult for employers to change the work that people are employed to do, but Layard says there are things that employers can do to improve happiness among employees:

  • Allow workers to influence how work is organised;
  • Reward team rather than individual performance;
  • Appoint managers who can inspire and lead effectively;
  • Run courses on wellbeing;
  • Take mental illness seriously, with managers who can spot it and know where to get help.

Employee happiness isn’t the only gain here. Happy employees are likely to be more productive, more willing to go the extra mile for their employer. Greater productivity means greater profit. And that will make employers happy too.

National minimum wage

You may remember that the Low Pay Commission reported to government back in Autumn 2019 and recommended increases to the national minimum wage and national living wage. The national living wage is the minimum pay required for workers who are aged 25 and older. It is a legal requirement to pay the national living wage where it applies rather than a choice.

From April 2020, these changes to minimum hourly rates will come into effect:

  • NLW for workers age 25 and over – from £8.21 to £8.72 per hour;
  • NMW for workers aged between 21 and 24 - £7.70 to £8.20;
  • NMW for 18-20 year olds - £6.15 to £6.45;
  • NMW for 16 and 17 year olds £4.35 to 4.55;

The NLW is expected to rise to £10.50 per hour by 2024. There are also plans to reduce the age at which the NLW applies from 25 to 23 by 2021, and to 21 within 5 years.

These pay rises, all of which are well over inflation, will add up. They will have a particular impact on small employers, especially in a time of economic uncertainty. The Federation of Small Businesses has said the wage hikes might result in lower recruitment, cancelled investment plans and redundancies. The BBC reports that businesses have urged the government to reduce costs elsewhere. Look out for further developments.

Harassment

Employers must protect their workers from discrimination and harassment. An employer will be legally liable for harassment at work if they have not taken reasonable steps to prevent it. The Equality and Human Rights Commission has published some technical guidance on sexual harassment and harassment at work.

The guide is quite long at 84 pages but is very readable. It takes the reader though the legal definitions of harassment in relation to a range of protected characteristics such as race, age and sex. The section on harassment (section 2) is particularly helpful at demonstrating what harassment can look like at work. The guide also covers victimisation, the legal claim an employee can bring if they are treated badly by an employer after raising allegations of discrimination or harassment. Victimisation can play a role in employees not reporting harassment. The guide contains helpful examples, some of which are based on real cases.

The most useful part of the guide for employers is section 5 which sets out how to prevent and respond to harassment as an employer. It takes a tour through the importance of policies and procedures, including helpful guidance on what a good policy should contain. It also contains guidance on detecting harassment, assessing risks relating to harassment in the individual workplace and responding to harassment allegations when they are made. Read the guidance here:

https://www.equalityhumanrights.com/sites/default/files/sexual_harassment_and_harassment_at_work.pdf

Unfair dismissal – suspension

Many employers automatically suspend an employee accused of misconduct while they investigate the allegations. Many employees don’t object. The employee in Harrison v Barking, Havering and Redbridge NHS Trust did object and brought a claim in the High Court to stop what she said was an unfair suspension.

The employee was Deputy Head of Legal Services. She was suspended from work due to allegations about her handling of a clinical negligence case. She wasn’t provided with the details and ended up going off sick with stress. The employer asked her to return to work on restricted duties. When she refused, she was suspended for failing to follow a management instruction. The employee brought a court claim for an injunction to stop the suspension and return to most of her normal duties. She said the employer's behaviour in suspending her breached the duty of mutual trust and confidence.

The High Court granted the injunction. There were strong grounds for arguing that the suspension breached mutual trust and confidence because there was no reasonable or proper cause for suspending her from most of her duties. The employer's arguments purporting to justify suspension – namely criticisms of the employee's work – came after the decision to suspend rather than before and no evidence had been provided.

Injunction proceedings are rare in employment cases. However, this case is a reminder that knee-jerk suspension decisions can come back to bite an employer. ACAS recommends that suspension should only happen in misconduct cases when the allegation is serious and when there has been a severe breakdown of the working relationship, or there is some other risk, such as the employee interfering with evidence or witnesses. Employers should always consider other options first, such as a temporary team move or different hours of work.