World Youth Day 2020

with Rishi Sunak announcing financial packages to increase youth employment, is this the time to review your recruitment strategy?

15th July is World Youth Skills Day.  The United Nations have dedicated this day, as the date to acknowledge and celebrate the importance of equipping young people with skills for employment, decent work and entrepreneurship.  On this day, guided by the United Nations, the world reconsiders their focus in response to the upward trend in the number of youth not in employment, education or training.  Illustrative of this upward trend in the report Global Employment Trends for Youth 2020: Technology and the future of jobs, figures showed that in 2016 there were 259 million young people classified as not in employment, education or training – a number that rose to an estimated 267 million in 2019, and is projected to continue climbing to around 273 million in 2021.

At a time where the world is reeling in the wake of the coronavirus pandemic, what should employers be considering on World Youth Day 2020?  Apprenticeships have always been the obvious solution to youth employment and development, allowing employers to benefit from additional lower cost resource while the apprentice benefits from practical skills development within the workplace and the dual benefit of college driven learning and support.   However, in 2020, could we look further and could we do more?  The answer to this is possibly we can! With Rishi Sunak announcing a number of new initiatives on 8 July 2020, employers now have more options to consider.  The following initiatives have been set out on in the government policy paper “a plan for jobs 2020”:

Kickstart Scheme – The government will introduce a new Kickstart Scheme in Great Britain, a £2 billion fund to create hundreds of thousands of high quality 6-month work placements aimed at those aged 16-24 who are on Universal Credit and are deemed to be at risk of long-term unemployment. Funding available for each job will cover 100% of the relevant National Minimum Wage for 25 hours a week, plus the associated employer National Insurance contributions and employer minimum automatic enrolment contributions.

High quality traineeships for young people – The government will provide an additional £111 million this year for traineeships in England, to fund high quality work placements and training for 16-24 year olds. This funding is enough to triple participation in traineeships. For the first time ever, the government will fund employers who provide trainees with work experience, at a rate of £1,000 per trainee. The government will improve provision and expand eligibility for traineeships to those with Level 3 qualifications and below, to ensure that more young people have access to high quality training.

Payments for employers who hire new apprentices – The government will introduce a new payment of £2,000 to employers in England for each new apprentice they hire aged under 25, and a £1,500 payment for each new apprentice they hire aged 25 and over, from 1st August 2020 to 31st January 2021.  

With the additional financial support available for employers to hire and train our youth, why not take the time to review your recruitment strategy and resource options on World Youth Skills Day? Keep an eye on our communications, as we will update you further when the government provide more information on the development of the above schemes.  Alternatively, if you are considering hiring apprentices, don’t hesitate to reach out to us for a free consultation at https://lexleyton.co.uk/free-consultation/

if a discussion around ensuring that you have the correct apprenticeship agreement in place would help.  There is specific wording that needs to be included in the agreement between the apprentice and the employer; over and above the considerations for a normal contract of employment and this area can be complex.

Social media in the age of coronavirus

Social media has thrived during the coronavirus lockdown as housebound people look for a way to stay connected with the outside world. It has also however, come into its own as a powerful tool for disgruntled employees looking to air grievances that they might previously only have raised internally. Apart from the risk of serious harm this can cause to an employer’s reputation, the employee who complains via social media might also have a strong weapon to wield in a potential health and safety claim against their employer.

In the early days of the lockdown, it became common to see employees using social media to complain about their employer’s decision not to place them on furlough leave, which many employees saw as their right. Now, with employers starting to bring employees back to work, some employees are using social media to voice their fears about returning to the workplace. Many of these posts have a health and safety angle as individuals shine a light on what they perceive as their employer’s failure to adequately address the potential risks that Covid-19 poses for those returning to the workplace.

Before an employer rushes to take action against an employee for such social media posts, they would do well to remember the protection afforded to the employee by section 44 of the Employment Rights Act 1996.  It protects an employee from detriment if the employee reasonably believes that the danger to their health and safety is serious and imminent, and that they are taking steps to protect themselves and other persons from harm. 

Covid-19 is likely to amount to a serious and imminent risk in most workplaces. Social media posts could potentially be relied upon by an employee as evidence that they are taking protective steps.  Much will depend on whether the employee could be said to have had a “reasonable belief” that the danger was “serious and imminent”.

The Government has issued substantial guidance for employers on working safely during the pandemic. However, even where an employer follows the guidance (which is varied and is derived from many different and connecting pieces of guidance and directions) diligently a Tribunal might still find the employee’s belief to be reasonable. We are living in unprecedented times and there is as yet no case law on this point to guide us.

So, what can employers do to guard against the risk of trial by social media? The prudent employer should first ensure it has complied with all the necessary health and safety measures stipulated by the Government and the HSE. It should also consult with employees or their representatives about these measures to ensure they are on board with the steps being taken.

Further individual consultation may be required with any employees who have expressed particular reservations about returning to work. This can help dispel worries and prevent them ballooning into entrenched positions. The aim is to avoid the employee feeling they have no recourse but to take public action on social media.

It’s also vital to have a social media policy clearly setting out your organisation’s expectations for employees when they use social media and to train employees on its contents. The policy should describe what the organisation considers to be unacceptable use of social media, such as posts that could harm the organisation’s reputation or that could be considered offensive.  This can be tied into any sector-specific code of conduct that the organisation abides by to ensure that the policy is not impractical and self-defeating. It’s important to warn employees that they risk disciplinary sanctions (including dismissal) for breaches of the policy even if the activity was done during time when they were not at work.

LexLeyton can assist employers with advice on any particular issues arising from employees returning to the workplace. Please contact us at [link to register for a free consultation] if a free consultation to soundboard any challenges that you are experiencing would be of help.

Update July 2020

From this month the new Flexible Furlough Scheme is in operation. Under the old scheme an employee had to be furloughed for at least 21 days and could perform no work in that time. The new scheme allows for a furlough of any period and for employees to work part-time. Employees must be paid in full for the time that they are working, with the scheme covering 80 per cent of an employee’s wages for the remainder of the week (capped at £2,500). The Government regards this as part of the process of phasing out furlough altogether by the end of October. For that reason, the Flexible Furlough Scheme is only open to employees who were fully furloughed for at least 21 days under the old scheme. What is more, the number of employees who can be flexibly furloughed is capped at the ‘high water mark’ of employees furloughed under the old scheme. So if the employer had furloughed no more than 50 employees at any one time under the old scheme it cannot place more than 50 employees on flexible furlough.

From August, the employer will have to start bearing some of the costs of paying employees on furlough. At first, they will simply have to pay employer’s national insurance and pension contributions. Then in September, the support provided for employees on furlough will be reduced to 70 per cent of wages (capped at £2,187.50) and in October the Government will contribute only 60% of wages (capped at £1,875). Even in September and October, however, the employer must make up the sum so that the employee receives at least 80% of wages to a maximum of £2,500 per month.

Pressure is now growing on the Government to extend the furlough scheme beyond October for those sectors of the economy that will continue to be hard-hit by the pandemic. That is a big ask of the Treasury given the scale of the intervention that it has already made. Without further measures however, it seems inevitable that large scale redundancies that were avoided in the Spring will dominate the autumn.  The real employment law impact of coronavirus has yet to be felt.

Redundancy

It is now common practice for employers to select employees for redundancy based on their performance at an interview. Often this process appears to be similar to a recruitment exercise, with the employer selecting those who will be offered a place in the new structure.

In Gwynedd Council v Barrett the employees concerned were teachers who were made redundant when the local authority closed the secondary school at which they were employed and opened a new school - on the same site – accommodating both primary and secondary pupils. They applied for posts at the new school but, following a selection process based on an interview, were unsuccessful and made redundant.

An Employment Tribunal found that their dismissals were unfair. One reason for this was that the employees had been offered no appeal against the decision to dismiss them despite the specific requirement in Regulations covering the staffing of maintained schools in Wales that the right to appeal should be given. The Tribunal also based its decision on a lack of consultation throughout the process and the fact that the change in school structure did not necessarily have an impact on their own roles, so the employees were essentially being made to apply for jobs that they already had.

The EAT upheld the Tribunal’s decision. On the issue of a recruitment-style interview the EAT said that the Tribunal had been entitled to find that the employer’s approach had been inappropriate in this case. This was not a ‘forward-looking’ process where the new roles were substantially different from the old ones and the employer had to consider how suitable the employees were to be recruited to them. It was much more akin to a selection for redundancy from an available pool of employees. The Tribunal had been entitled to stress the need for objective selection criteria and proper consultation.

This case does not mean that employers should avoid the use of interviews in redundancy selection exercise. It is important however not to lose sight of the underlying reality of the process. It is the fairness of the dismissal that will be scrutinised in any unfair dismissal claim. Employers will need to show the criteria on which the employee was selected for redundancy and the basis on which they were assessed. Performance in a job interview with no proper assessment of the employee’s actual performance at work is unlikely to be sufficient.   

Wrongful dismissal

An employee dismissed without notice will often claim both unfair and wrongful dismissal. These are two distinct claims. Unfair dismissal is concerned with the reasonableness of the employer’s decision to dismiss the employee. Wrongful dismissal is a contractual claim centred around whether the employer was entitled to dismiss the employee without giving the full contractual notice required. That in turn depends on whether or not the employee was actually guilty of gross misconduct. An employer might reasonably believe that the employee committed gross misconduct and successfully defend the unfair dismissal claim, but lose on the issue of wrongful dismissal because the Tribunal believes in the employee’s innocence. In such a case the employee would be entitled to damages covering the notice that should have been given.

Tribunals still struggle sometimes with the distinction. In East Coast Mainline Company Ltd v Cameron the employee was a shunter in a train depot. He was dismissed when he allowed a goods train to move off while the driver of another train was out of his cabin. The driver was ‘brushed’ by the goods train and could easily have been killed.

At the first hearing the Tribunal found that the dismissal was fair because the employer had reasonably concluded that the employee was guilty of gross misconduct - and dismissed the wrongful dismissal claim on the same basis. The EAT sent that issue back so that the Tribunal could determine whether the employee was guilty of gross misconduct. When the case was re-heard the Tribunal upheld the wrongful dismissal claim. The conduct in question was not deliberate and was a one-off incident of carelessness. Taking into account the employee’s length of service (more than 30 years) what he had done did not amount to gross misconduct.

A second appeal to the EAT led to this finding being overturned. Length of service was not a legally relevant question in a wrongful dismissal claim. What mattered was the seriousness of the conduct itself, not whether it was reasonable to dismiss. A single act of carelessness could amount to gross misconduct if the lapse was serious enough – and it was certainly so in this case where it had very nearly led to a loss of life. Rather than send the matter back to be considered for a third time, the EAT simply held that the wrongful dismissal claim should fail.

Unfair dismissal – gross misconduct

In considering a wrongful dismissal claim, the Tribunal needs to decide whether or not the employee is guilty of gross misconduct. When it comes to unfair dismissal that is precisely what the Tribunal should not do – at least until it comes to assess compensation. It should ask whether the employer reached a conclusion that was reasonably open to it – not whether it agrees with that conclusion. A good example of the wrong approach is the case of Tai Tarian Ltd v Christie. Mr Christie was a maintenance worker for a housing association. He was dismissed when a tenant complained that he had made a series of homophobic remarks when working on her property, making her feel uncomfortable. He denied the allegations completely and argued that his dismissal was unfair.  

The Tribunal upheld his claim. It relied on the fact that the employer had accepted that Mr Christie was not actually homophobic and concluded that they could not have therefore believed that he had said what he was accused of saying. The EAT held that this was clearly wrong and was no basis for finding that the employer had not believed that the comments had indeed been made.

The Tribunal had been entitled to criticise the employer for not allowing the employee to see the full notes of evidence taken from the anonymous witness but had not explained why it was unreasonable of the employer to accept her account. The Tribunal had held that she had embellished her story, but the evidence did not bear that out, showing only minor inconsistencies in the two separate accounts that she had given to the employer. The Tribunal had pointed out that she had a potential motive for fabricating her story (as a result of a previous interaction with Mr Christie) but had not considered whether the employer’s acceptance of her account was reasonable. Clearly the Tribunal had started from the position that it believed Mr Christie’s denials and then worked backwards from there.

The finding of unfair dismissal was overturned, and the case sent back to a fresh Tribunal to be re-heard.  

Right to Work

An employer must be careful to avoid employing someone who does not have the right to work in the UK. Doing so knowingly is a criminal offence and inadvertently employing someone who is working illegally can lead to a civil penalty of up to £20,000 for an employer who has not carried out a proper documentation check. At the same time it is important not to react too hastily in assuming that an employee’s permission to work has expired. A genuine but mistaken belief that an employee is not entitled to work in the UK can be a fair reason for dismissal, but the employer still needs to behave reasonably. Tribunals will understand that an employer needs to behave promptly, but that will not excuse a failure to examine the situation calmly and make proper enquiries – as the case of Sanha v Facilicom Cleaning Services Ltd shows.

Mr Sanha was dismissed when his employer believed that his permission to work in the UK had expired. The Home Office online checking service had no record of him making an application to renew his permission, and the employer therefore believed that they had no choice but to dismiss. As it turned out, however, he had made such an application. What was more, he was married to an EU citizen working in the UK and was entitled to work in the UK on that basis alone. The dismissal was held to be unfair because the employer should have made more detailed enquiries into his status and realised that the application he had made would not have made its way into the Home Office’s system by the time they carried out the check.

The appeal to the EAT was concerned with compensation – should the award be reduced to reflect the contributory fault of the employee? The EAT accepted that the employee’s conduct could be regarded as blameworthy in that he had been less than forthcoming about his correspondence with the Home Office. On the other hand the employer’s decision to dismiss was not actually influenced by the employee’s failure to provide a fuller account of his status. The employer had acted purely on the basis of the results on the online checking service, so the employee’s conduct had not contributed to the decision to dismiss.

Transfer of Undertakings – changing contracts

The Transfer of Undertakings Regulations (known as TUPE) provide that an employee’s terms and conditions cannot be changed because of the transfer of their employment from one employer to another. It has been argued in the past that this provision only applies to negative changes and that actual improvements in terms and conditions can be valid even though a strict reading of the Regulations themselves suggests otherwise. The issue was tested in Fergusen & ors v Astrea Asset Management Ltd in which an asset management company lost the contract to manage a high-value area of real estate in Kensington and Mayfair belonging to the Abu Dhabi Royal Family. This was effectively the only contract the company managed and so it was accepted that all employees would transfer under TUPE. This included the senior leadership and directors who promptly agreed that they should be paid hefty bonuses once the transfer had gone through - and that they would be entitled to generous termination payments if they were dismissed. These changes were incorporated into their contracts of employment and presented to the new employer. The new employer was not impressed and promptly dismissed the individuals concerned – refusing to honour the new terms.

One of the many issues that fell to be considered in the subsequent tribunal proceedings was whether these changes in terms and conditions were valid and binding. The Tribunal held that they were not. The only reason for the changes was that the contracts were being transferred to a new employer. They were therefore void under TUPE. The EAT agreed. The Regulations were clear that any purported change in terms and conditions was void if the reason for it was the transfer itself. That was certainly the case here as there was no other commercial justification for the changes being made. Suggestions that positive changes were permitted were not based on the Regulations themselves which were unambiguous on the point.

Marriage Discrimination

One of the least often claimed grounds of discrimination is marriage and civil partnership. Prejudice against married people is hardly widespread and there are few circumstances in which an employer might treat an employee less favourably because they were married. The case of Gould v St Johns Downshire Hill demonstrates how difficult it is for an employee to make a successful claim of direct discrimination on the grounds of marriage. The Reverend Gould was employed as a vicar in a ‘proprietary chapel’. This is a church which enjoys semi-independent status from the Church of England and the clergy are directly employed by a governing body of trustees under a normal contract of employment. Rev Gould was dismissed by his governing body after serving for some 15 years on the stated ground that it had lost trust and confidence in him.

The governing body had become increasingly unhappy with his conduct, citing a range of governance issues, his lack of communication with trustees and his management of junior clergy. As a background to all of this, however, was the breakdown of his marriage. A number of the trustees took a conservative approach to marriage and believed that a failed marriage would make a minister’s position untenable. Advice was taken from the local bishop who made it clear that any decisions made about Rev Gould’s future should not be based on the state of his marriage but his performance and behaviour in the role.

After his dismissal, Rev Gould claimed that he was discriminated against on the grounds of marriage. He argued that the failure of his marriage was an important part of the background to many of the issues the governing body had with his performance. Had he not been married these concerns could not have arisen.

The Employment Appeal Tribunal (EAT) upheld the tribunal’s finding that there was no discrimination. In a direct discrimination claim the less favourable treatment complained of had to be ‘because of’ the protected characteristic – in this case, marriage. That meant that marriage had to be part of the reason for the decision itself and not just a background circumstance. The fact that the whole situation would have been different if Rev Gould had been single was not sufficient. The Tribunal had found that there were a range of issues quite unrelated to his marriage that led the trustees to dismiss him and that the trustees had followed the bishop’s advice to disregard any concerns they had on that issue. While a dismissal on the grounds that a marriage had broken down could be discriminatory, that was not what had happened here. The fact that some of the conduct for which Rev Gould was dismissed had arisen in the context of his marital problems, did not mean that those problems were the reason for his dismissal.

The issues raised in the case are real enough, however. Too much emphasis on joining in with corporate social activities can certainly amount to indirect discrimination if these are focussed on the interests of the majority. A ‘laddish’ culture could also help persuade a Tribunal that direct discrimination lay behind a decision on dismissal or promotion. This case may have failed on the facts, but that does not mean that employers can afford to ignore the culture they create.

Continuity of Employment

Only employees with two years’ continuous service have the right not to be unfairly dismissed. This qualifying period is measured to the day - so it is important to be clear about precisely when an employee started work.

In O’Sullivan v DSM Demolition Ltd, Mr O’Sullivan claimed unfair dismissal from his role as a Demolition Safety Supervisor. He said that he had been employed from 19 October 2015 to 21 October 2017. In replying to his claim however the employer said that his start date was 2nd November 2015. That was the date given on his written statement of terms and conditions. It was also consistent with the employer’s payroll records.

Mr O’Sullivan argued that prior to the formal start-date of 2 November 2015 he had already been working for the employer. He had, at the employer’s request, undergone a medical assessment which was a requirement of the certification he needed to work on demolition sites. He had also undertaken some informal work for one of the employer’s clients. However the Tribunal found that he was not paid by the employer for such work – he had actually been paid in cash by the client and the employer was not involved in the transaction. The Tribunal concluded that any work that he had done did not form part of the employment that began on 2 November. The Tribunal held that he did not have two years’ service and dismissed his claim.

The EAT upheld that finding. Mr O’Sullivan’s period of employment did not begin when the contract was first agreed upon. Tasks done in preparation for the start of his employment -such as the medical examination – were not part of the employment itself. The Tribunal was also entitled to find that the work he did on site was not work done under the contract of employment, but was separate and distinct from it.

Constructive Dismissal

A constructive dismissal takes place when an employee resigns in response to a fundamental breach of contract on the part of the employer. A fundamental breach may, if it is serious enough, consist of a single act. It may also be made up of a number of more minor incidents culminating a ‘final straw’. In Williams v Aderman Davies Church in Wales Primary School a teacher resigned and claimed constructive dismissal over the way in which the employer had handled a complex disciplinary case against him. He was concerned that evidence had been withheld and that this was part of a pattern of unfair treatment towards him and a failure take account of his mental health condition.

In the end, his resignation was prompted by the employer’s decision that another employee who was his union representative, but who had also been accused of misconduct in the handling of his case should not be allowed to contact him until after the case was completed. The Tribunal felt that this was not a matter on which the employer could be criticised – although they found much to criticise in the employer’s earlier handling of the case. They therefore dismissed the constructive dismissal claim. The employer could not rely on this decision as being ‘the last straw’ in conduct amounting to a fundamental breach of contract because it was, in itself, innocuous.

The EAT held that this was the wrong approach. What mattered was whether, when the employee resigned, the employer was in fundamental breach of contract. The incident that prompted the resignation did not have to be part of that breach as long as the employee – as in this case - was motivated at least in part by the overall conduct of the employer.

It was true that once the breach had taken place the employee had a limited period in which to decide what to do. Too much of a delay would lead to the employee ‘affirming the contract’ and losing the right to claim constructive dismissal. In those circumstances an entirely innocuous incident could not revive the right to resign without notice. In the case of Mr Williams however, there was no suggestion that the final incident occurred following an unreasonable delay. There were no grounds on which the Tribunal could have found that he had affirmed the contract. What was more, the Tribunal’s criticisms of the employer’s earlier conduct were so severe that it was clear that there had been a fundamental breach of contract. In the circumstances the EAT ruled that Mr Williams had been constructively dismissed.



And finally…

An Employment Tribunal has dismissed a claim that an employer discriminated against the only female member of its leadership team by talking about football all the time. In Liebenberg v DS Smith Packaging Ltd the employee argued that she was regarded as ‘not being one of the lads’ because she could not take part in their sporting discussions over boozy dinners. The Tribunal did point out that the gender imbalance in the leadership team was ‘unacceptable’ – although that is not the same thing as ‘unlawful’ - but it rejected her claim. The real reason for her dismissal (with less than two years’ service) was the employer’s genuine concerns with her leadership style. In fact there was no undue emphasis on football in conversations within the leadership team and the dinners were rather sober affairs with participants generally having about half a bottle of wine each. 



Are we nearly there yet? Employee engagement and the ‘new world of work’

Social distancing

On 10 June 2020, Boris Johnson further eased lockdown restrictions and introduced the concept of the ‘support bubble’.  As we look forward in hope towards the further lifting of restrictions, we look into what this may mean for the world of work and consider how to keep employees engaged on the journey?

Many businesses have had their employees working remotely for months and for most, the majority of their professional interactions have been through voice or video calls.  In the face of continued adversity this ‘new normal’ will continue with no obvious indicator of a date for change.  In respect of the numbers ‘People Management’ magazine undertook a survey of over 500 readers, asking “have the majority of staff returned to work?” 4% responded that their staff returned after the 11th May Government announcement, 24% responded that ‘staff will return when the Government say it is safe for their sector and 55% of respondents confirmed that ‘most staff will work from home for the foreseeable future’.  With the continued uncertainty, we ask what we have learnt from the past few months and consider where a business may want to be.

Many positive changes have come from the period of enforced homeworking with many conceding that perhaps the old ways of working were not necessarily the best ways?  Do people need to travel to meet face to face or can time and efficiency savings be made by embracing this ‘new normal’?  Can people survive on virtual interactions or do employees need face to face contact to be productive in the long run and do employees need face to face interactions to feel engaged with and part of their organisation?  When considering the answers to these questions alone, a business can merely speculate as to the best way forward, however the route to certainty and increased engagement is to proactively involve employees and to seek their feedback and opinions on what the ‘new normal’ should be.  After all people support what they create.

Whilst businesses had to adapt overnight when lock down was imposed, the current uncertainty of when restrictions will be lifted, presents the gift of time to work out where the organisation wants to be.  Involving employees in this journey will be key to keeping them engaged during such uncertain times.   Focussing on employee engagement in 2009, the MacLeod Review (Engaging for success: enhancing performance through employee engagement) summarised the four key ‘enablers’ of employee engagement as follows:

  • Leadership that gives a ‘strong strategic narrative about the organisation’.
  • Line managers who motivate, empower and support their employees.
  • Employee voice throughout the organisation, to involve employees in decision making.
  • Organisational integrity that stated values are reflected in the actual organisational culture; what we say is what we do.

Considering planning for the future through the lens of employee engagement, a business should therefore consider:

  • Communicating the visions for the future and setting the direction to shape the values of the organisation. 
  • Ensuring line managers are regularly reaching out to employees?  Do managers understand any concerns employees have?  Are managers looking at ways to remove constraints to allow employees to be productive?
  • Opening communication channels with employees and soliciting opinions and feedback on how the ‘new normal’ should look.  What makes the organisation different or special?  Which of the business’ core values do employees identify with?  What is out of date and what has changed? What do employees want the organisation to look like in the future and can they help identify the vision.
  • Once the strategic direction is communicated and the ‘new normal agreed’ leaders should ensure the strategic vision flows and is reinforced throughout the company via aligned employee objectives, so everyone is working toward a common goal and can clearly see where their individual roles fits within the business.

The future world of work may look different for many, however communicating with employees and bringing them along on the journey, will go a long way to ensuring employees remain engaged with the business moving forward, no matter how uncertain the rest of the world may look. 

Take PRIDE in your workforce

 

June is Pride Month and it usually means weeks of rainbow-drenched parades, concerts and festivals (however, in order to respect social distancing rules, most events will be organised online this year) - but in 2020, why is Pride still so vitally important to celebrate??

Although homosexual acts are no longer punishable by hanging (since 1861) nor are they criminal offences (since 1967) and whilst it is very important to appreciate how far the UK has come on LGBT rights, many significant challenges remain.

(more…)

Fathers in focus – “We are in this together”.

We keep hearing this phrase ‘we are in this together’, and it is true.

As lockdown progressed through the weeks and more and more of the colleagues, clients and contacts I spoke with via video conference had the pleasure of meeting my children, I wondered about the titular phrase.

Our obligations to our community are all the same; maintain social distancing, abstaining from seeing loved ones and adhering to the other measures designed to minimise transmission of Covid-19. However, it is less clear whether the impact on our personal lives has been doled out in equal measure.  With Father’s Day 2020 approaching on 21 June, I asked some other working dads to share their stories of life before lockdown, how they have handled the past 3-4 months and whether that has created any aspirations for them in future.

Each of these working dads has faced the challenge of balancing family and work life that many others will have also experienced since March. These stories put into real words some of those challenges; from health and financial wellbeing to increasing parental responsibility. I am indebted to them for their openness and candour. It is my hope that their succinct stories will allow others to reflect and to promote mutual respect and understanding.  Time to put fathers in focus.


Gary, Customer Relationship Manager

Before the pandemic, how did you find juggling your responsibilities as a father (or father-to-be) and working life?

As a relatively new father, I found it difficult to maintain a healthy work-life balance. Each day I would leave the house before my daughter woke and return just in time for her to get a bath and go to bed. I have a fairly demanding job, in a business which operates 24/7 and managing a team which works 7 days per week - this can make it difficult to switch off when out of the office. Ultimately, I wasn't spending as much quality time with my daughter as I wanted to and was overly reliant on my wife to make plans.

How have you found being a working father during the coronavirus pandemic?

Personally I feel like I have been a better father during this period. I have been working remotely for a couple of months now and this has given me time back that would previously have been spent on my commute. I've enjoyed reinvesting this time towards Jessica and my own physical health. From feeding her meals to simply playing with her for a few minutes while I take a break from the laptop. I feel like our relationship is growing quickly than it would do otherwise while my wife is also benefitting from the support.

What are your aspiration for the future, once lockdown is lifted, regarding your work-life balance?

Once lockdown is lifted I plan to ensure the 'new normal' includes more frequent remote working. I am fortunate that my employer is generally flexible towards this and has already demonstrated an appetite to encourage this when we return to normality. The additional time I have spent with my daughter during this period has meant I feel like I am doing a better job as a father while also committing time to look after myself and my wife. This in turn, has led to a positive frame of mind and improved the quality of my work.


Gordon, Architect

Before the pandemic, how did you find juggling your responsibilities as a father (or father-to-be) and working life?

Juggling responsibilities between work and the needs of my pregnant wife was quite challenging. I would try and make sure my wife was always top priority. However, this is quite difficult in a corporate world and explaining this to your boss or a client - there is very little sympathy. I never did complain about it and always managed to find a way to keep everyone happy.  

How have you found being a working father during the coronavirus pandemic?

I have actually enjoyed the experience. Our new born arrived in mid-April – a few weeks into the lockdown. It has been nice to spend much more quality time than I would have probably had in a normal situation. Working from home means I get an extra 2 hours back to spend precious time with my son - that would normally be spent on my commute.

What are your aspiration for the future, once lockdown is lifted, regarding your work-life balance?

I have always tried to be a great believer that although careers goals and aspirations can be considered important, Family always has to come first. The current situation that we find ourselves in, has really emphasised this attitude. As my late gran always said. “Work to Live, don’t ever Live to Work"


Pearse, Dentist and Business Owner

 Before the pandemic, how did you find juggling your responsibilities as a father (or father-to-be) and working life?

Finding the balance between work and home life prior to the pandemic has always been challenging. I’m luckier than most because I have a short commute to work and have a half day once a week so I can spend time with my daughter. Despite this my business takes up the majority of the rest of my time including some time at the weekends to catch up. After a busy week at work it can be hard to switch off and drop back into parent mode. 

 How have you found being a working father during the coronavirus pandemic?

Working has been pretty much impossible during the pandemic which has given me so much more time with my daughter and wife. Although it can be stressful in lock down with a toddler, we have had so much fun together. When we look back at the last 2 or 3 months I think the overriding sentiment will be one of happiness and gratefulness; firstly that we have all remained healthy and also that we have had so much quality time together. Our daughter has grown and progressed so much over this time period and it’s been a privilege to be there to experience it all first-hand. When I've had to work it’s been difficult to get uninterrupted periods to focus however I’m lucky enough that my workload has been relatively light. I think if I had to work normal hours if would have been unmanageable.

What are your aspiration for the future, once lock down is lifted, regarding your work-life balance?

I would like to try and find a better work/life balance after lock down has been lifted. I’ve been lucky that I’ve had almost 3 months of time with my daughter which probably equates to 1 year of weekends which is incredible.  I would like to continue to finding more time to spend with her during these precious years.


Andrew, Strategic Planner

Before the pandemic, how did you find juggling your responsibilities as a father (or father-to-be) and working life?

Pre-lockdown looking back I feel I had a healthy routine with work/family life. Our childcare for the kids (4 and 1) involved a mixture of nursery and grandparents which meant I could go to work and also have some time to myself to go to the gym, cinema, out for dinner with my wife etc.

How have you found being a working father during the coronavirus pandemic?

Challenging. My wife and I both work full-time and still are, however we now have to plan our working weeks around also watching the kids and entertaining them throughout the day as we don’t have an alternative. As difficult as this is I am spending much more time with them which is great as we are building an even stronger relationship.

What are your aspiration for the future, once lockdown is lifted, regarding your work-life balance?

Once lockdown is lifted there will no doubt still be many restrictions in place and working from home will almost become the new norm. I don’t actually mind this as I like getting to see my kids anytime throughout the day and get to see them develop and reach different milestones which I might have missed out on if I had been at work all week.


Donnie, Senior Software Engineer

Before the pandemic, how did you find juggling your responsibilities as a father (or father-to-be) and working life?

Careful planning and an understanding employer helped me manage a successful work/family balance.  Where possible I always try and work around the kids to make sure I missed none of those significant childhood milestones. 

How have you found being a working father during the coronavirus pandemic?

A total nightmare. Looking after two young children - 5 and 7 - while my wife worked in a covid hospital ward has led to a set of interesting challenges that I did not expect to encounter. The ability to fully concentrate on anything for more than 10 minutes without interruption during the day has been almost impossible. 

What are your aspiration for the future, once lockdown is lifted, regarding your work-life balance?

I will throw a party once the schools return! On a serious note I do think that I had a great work/life balance pre covid and I would like to return to that or as close as possible. 


Coronavirus Job Retention Scheme: Important Update from the Chancellor

The Government announced on Friday that the furlough scheme will end on 31 October 2020, with contributions required from employers increasing gradually over the coming months.  The key changes impacting employers are:

  • From 1 July 2020, employers will be able to take advantage of ‘flexible furlough’, where employees can work part-time while furloughed. 
  • Employers will need to place workers on furlough by 10 June 2020, in order to benefit from the new flexible approach to furlough. This deadline is three weeks before the end of the original furlough scheme.  As there is likely to be an urgent need for employers to consider how to make best use of flexible furlough, businesses must act urgently to ensure employees agree with their furlough and that a claim is made via the existing scheme. 

Employer contributions will increase in three stages:

  • From 1 August 2020, employers will be required to pay employee National Insurance contributions and pension contributions.  Currently, these costs can be reclaimed through the scheme. 
  • From 1 September 2020, the Government will only reimburse 70% of salary, as opposed to the current 80%. Employers are required to contribute the 10% salary ‘top up’ to 80% (or more, depending on what was agreed with the employee). 
  • From 1 October 2020, the Government will only reimburse 60% of salaries with employers having to top up their employees’ salary to 80% (or more, as per individual agreements). 

Now that it is clear how the Government will scale back and end furlough, businesses will be in a better position to plan for their workers’ return to work.

For many, however, considering what adjustments need to be made to fixed overheads to continue to weather the ongoing economic challenge presented by COVID-19 is now urgent. The ‘easing back’ of the furlough scheme means that many businesses will now have consider how their operations will need to be restructured. LexLeyton is offering a free consultation to any company which needs support with their business planning, and advice around the impacts arising on their workforce.

Please contact us at legal@lexleyton.co.uk or 020 3949 8230 for further information.

Global Day of Parents – Thinking Family Friendly

 Day of

The UN has designated 1 June the Global Day of Parents as an opportunity “to appreciate all parents for their selfless commitment to children and their lifelong sacrifice towards nurturing this relationship”.  Unfortunately such appreciation doesn’t come with a guarantee of an uninterrupted night’s sleep or a break from the demands of home schooling, which might be more welcomed by working parents currently juggling balancing work and child care through the lockdown. It is however an opportunity for businesses to think about their family friendly policies and how these can benefit both employer and employee.

Even before the sweeping public health safeguards introduced by the Government came into force, many employers were looking at ways to set themselves apart from the crowd and attract new talent, and this included promoting their family friendly policies, including agile and flexible working practices. 

The coronavirus pandemic forced companies to switch to remote working very quickly, and the ability to do this was critical in allowing parts of the economy to survive. As we start to emerge from the strictest measures of the lockdown, there is increasing talk of ‘the new normal’ and especially what this might look like for future working practices.

Facebook has announced that it expects half of its workforce to move to working outside of its offices, Twitter said that its employees could work at home “forever” if they wish, whilst over in New Zealand, the Prime Minster Jacinda Adern has talked about moving to a four day working week. 

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. However, a move to remote working also means that there is the potential for businesses to save money on expensive office space. Law firm Slater and Gordon has announced that it will move out of its London offices when the lease ends in September and instead look to find smaller office space suitable for hosting meetings with staff working remotely.

Research has already shown that creating enabling and flexible environments can enhance productivity, creativity and wellbeing in staff, and the internet is awash with articles of the positive feedback coming from employees about their new at home working arrangements.

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.

The lasting effects of the current pandemic remain to be seen but certainly it is forcing businesses to rethink the way they work. Of course, what we must remember is this is not ‘normal’ home working and, for the majority, it was imposed without the opportunity for proper planning. For working parents it has also meant trying to get in as many working hours as possible whilst teaching maths or meeting never ending snack demands; it just isn’t reflective of real life. Whilst the current lockdown has been something of a dress rehearsal for different ways of working, sustainable businesses looking to make a more permanent move to flexible working practices will need to think about ensuring that they have the right tools, structure and culture to ensure its success.

LexLeyton can help businesses to create strategies for developing and maintaining family friendly policies, including flexible and agile working plans, to benefit culture and sustainable growth. Contact us for a free consultation and to discuss how we can help.

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.