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.

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.

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 23^rd of April and ends on the evening of the 23^rd 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.

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 6^th 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.

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 6^th 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.

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

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.