Background

Arguably one of the most difficult stated aims in Labour’s New Deal for Working People was its move to ‘ban exploitative zero hour contracts.’

Whilst the term ‘zero hour contract’ has no strict legal definition (and certainly the use of casual labour with no guaranteed working hours is far from a new phenomenon), in recent years the increase in such arrangements under the ‘gig economy’ has led the term to becoming synonymous with the idea of unscrupulous employers taking advantage of vulnerable, low-income workers.

In a laudable attempt to try and slay this employment law dragon, the new Employment Rights Bill introduces a number of new concepts that it hopes will protect staff working under these types of arrangements.

It’s worth noting that the provisions do not currently apply to agency workers, but this is a matter for ongoing consultation.

Guaranteed working hours

The new law will create an obligation to offer workers contracts which include a set number of guaranteed hours which ‘reflect’ the hours they have actually worked over a specific reference period. This will mean employers will not be able to engage staff to work lots of hours without guaranteeing a proportion of those hours under a contract.

The right will apply to those workers who are working under a ‘zero hours’ arrangement or a low number of minimum guaranteed hours. The Government has yet to confirm what amounts to a worker with low guaranteed hours and where this threshold lies will have a huge impact on which arrangements will be affected.

The reference period over which a worker’s hours are calculated is likely to be 12 weeks based on the consultation documents to date but is yet to be confirmed. It’s also unclear how calculating subsequent reference periods will be dealt with.

The offer of guaranteed hours must also set out the pattern of days and times during which those guaranteed hours will be available, conceivably allowing workers to enjoy more predictable working patterns.

Any offers made must form a permanent change to the workers terms and conditions, unless specific exemptions apply. This includes where there is only a temporary need for the worker in question.

If a company fails to make offers to its workers when the right arises, those workers will be able to bring a tribunal claim and most commentators think that compensation will be based on the guaranteed hours that should have been offered.

There are real concerns that if the regulations are too complicated then they simply will not be used (much like the current shared parental leave provisions).

Reasonable notice of shifts

The law intends to make sure workers are given ‘reasonable’ notice, both of their shift patterns and changes to their shift patterns. A minimum notice period will be introduced though what will amount to ‘reasonable notice’ has yet to be defined. The law also starts with a presumption that if the required minimum notice is not given then any notice was not reasonable, unless the contrary is shown.

Where reasonable notice is not given, workers can bring a claim for compensation and such compensation will be the amount the tribunal considers just and equitable in all the circumstances to compensate the worker for any financial loss attributable to the unreasonable notice, subject to a cap (to be specified in regulations).

The level at which any compensation is capped is likely to have a material impact on whether companies will comply with the regulations or just choose to accept any additional financial burden for non-compliance.

Compensation for cancelled shifts

Closely linked to  the above, the law intends to make sure workers are given compensation if they have their shifts cancelled at ‘short notice.’ It also applies when shifts are moved or shortened.

How much compensation will be awarded and what amounts to ‘short notice’ is still to be defined. Most commentators best guess at what ‘short notice’ will be is 7 days and this is already the period set out as the minimum notice for when shifts are curtailed or altered rather than cancelled.

Where ‘short notice’ is given, workers can again bring a claim for compensation and such compensation will be the amount the tribunal considers just and equitable in all the circumstances. However, this will not exceed the amount of remuneration the worker would have been entitled to had they worked the original shift as planned. The regulations may specify different payment amounts depending on the length of notice given.

Conclusion

As ever, and in line with probably the majority of the changes under the Employment Rights Bill, the devil will be in the detail but certainly it won’t be long before employers who operate with more flexible workforces will have a lot more to think about. The changes are expected to be in force some time in 2026.

At the very least, those employers will need to review their current arrangements, consider how to implement more considered and more predictable shift planning, as well as potentially budgeting for additional operating costs.

If you’re a business and would like more information about this issue, please contact Stephen Mutch stephen.mutch@pannonecorporate.com

Published prior to this year’s general election, Labour’s Plan to Make Work Pay, made it clear that a Labour government wanted to strengthen trade union powers. With the publication of the Employment Rights Bill, we have a clearer understanding of the government’s proposed reforms. In this article we look at those changes that will be of most interest to employers.

Background

Prior to the election Labour stated that its aim was to “update trade union legislation so it is fit for a modern economy, removing unnecessary restrictions on trade union activity and ensuring industrial relations based around good faith negotiation and bargaining”.

The previous Conservative governments had introduced the Trade Union Act 2016, the Minimum Service Levels (Strikes) Act, and Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022. This legislation introduced a number of significant changes including:-

• minimum turnout requirements for industrial action ballots
• greater obligations on trade unions prior to industrial action
• time limits on the mandate ballots give for industrial action
• the ability of the government to make regulations providing for minimum service levels during strike action in “relevant services” e.g. railway services, NHS, and border security, and,
• removal of the prohibition on employment businesses supplying replacement workers to employers during industrial action.

In opposition Labour vowed to revoke this legislation. As it was, the removal of the prohibition on providing replacement workers during industrial action was found to be unlawful in 2023 so it was not necessary to revoke this legislation. However, whilst the new Bill removes the Minimum Service Levels (Strikes) Act in its entirety, it does not completely revoke the Trade Union Act 2016

Overview

In short it could be said that the proposed reforms in the Bill are designed to make it easier for trade unions to gain formal recognition in a workplace and generally make the regulatory environment more favourable to unions, make it easier for unions to conduct industrial action ballots and gain a mandate from members for industrial action, and to provide greater protection for employees involved in trade union activity or industrial action. Some of the reforms are more relevant to trade unions and outside the scope of this article but the key changes that will be of relevance to employers are:

• The Bill proposes changes that should make it easier for trade unions to gain access to workplaces and ultimately gain formal recognition within the workplace, by setting out a formal (and complicated) process for requesting access to a workplace.
• The Bill also strengthens the existing right to reasonable paid facility time for union representatives to carry out their duties, and requires employers to provide union representatives with reasonable access to facilities such as office and meeting space and internet/intranet access to enable them to carry out their duties or undergo training.
• A new statutory right for trade union equality representatives to take reasonable time off during working hours to carry out their equality related activities.
• The previous government had introduced a requirement that for a ballot to mandate industrial action there was a requirement that at least 50% of the eligible members must have voted. There was also an additional requirement that in “important public services” that in addition to the 50% turnout requirement, at least 40% of those entitled to vote must have voted in favour of industrial action. The Bill will revoke this requirement, meaning a simple majority of those that choose to vote in a ballot is required to approve industrial action.
• A reduction in the period of notice a trade union must give an employer of industrial action will be reduced from 14 to 7 days, which returns to the position prior to 1 March 2017.
• The ability of the Secretary of State to set minimum service levels for “relevant services” will be revoked.
• The Government intends to consult on simplifying the amount of information that unions are required to provide in industrial action notices.
• The Trade Unions Act 2016 provided that a mandate for industrial action following a ballot would automatically expire six months from the ballot date (or nine months if agreed by the union and employer). The Bill does not propose to repeal this provision but the Government is consulting on whether the time limit should be extended from six to 12 months.
• Prior to this year an employee was protected from dismissal for taking lawful industrial action but there was no protection against a detriment short of dismissal. Following a Supreme Court decision earlier this year this was found to be unlawful. As such the Bill inserts a new section that will provide employees with protection from detriment (short of dismissal) for taking industrial action.
• The Bill simplifies the rules which determine when a dismissal for taking industrial action will be unfair. These current rules depend on whether the industrial action was unofficial or official and, if official, whether it was protected or not. The Bill simplifies the rules meaning an employee will be automatically unfairly dismissed if the reason for their dismissal is that they took protected industrial action.

 Comment

A number of these changes take us back to the pre-2017 position and other changes are in line with arguments the unions and Labour have made for many years. However, the Bill will also revoke some of the more controversial changes made by recent Conservative governments.

When the changes come into force it is likely that trade unions will in the first instance use them to promote union membership within the workplace, with a view to gaining recognition. Formal recognition requires the employer to engage in collective bargaining with unions about pay and other terms of employment, which Labour sees as a positive step towards “increased cooperation between employers and unionised workers, leading to beneficial outcomes for the economy.”

If you’re a business and would like more information about this issue, please contact Michael McNally Michael.mcnally@pannonecorporate.com

In its pre-election manifesto, Labour’s Plan to Make Work Pay, Labour promised to review the parental leave system within the first year of government to ensure proper support for working families, and to make flexible working the default.  As a start, the Employment Rights Bill includes a number of provisions that expand the scope of existing family leave entitlements and entrench the right to request flexible working.

Bereavement Leave

Currently, only parents who lose a child aged under 18 have a statutory right to take bereavement leave.  The Bill builds on the existing statutory right to Parental Bereavement Leave by providing for a wider entitlement to Bereavement Leave.  This is described in the Government’s Factsheet as a “day one right to protected time off for employees to grieve the loss of a loved one.”

Details of who will be able to take this leave through their relationship to the deceased, and how the leave can be taken, will be opened up for consultation on draft regulations yet to be published.

Leave for losing a child will remain as the current period of two weeks whereas all other Bereavement Leave will be set as one week. Bereaved employees will be able to take leave at any time during the period of 56 days after the death.

Paternity Leave

As promised in the manifesto, paternity leave will become a day one right and may also be taken in addition to and following Shared Parental Leave.  In practice, that means employees will be able to give the required notice of their intention to take leave from their first day in a new job.

Unpaid Parental Leave

The right for an employee to take up to 18 weeks’ unpaid leave during the period up to their child’s 18^th birthday is very rarely used. This will however become a day one right under the Bill.

Flexible Working

Earlier this year, the right to request flexible working became a day one right, enabling employees to request changes to their working arrangements twice a year. Employers are required to handle requests in a “reasonable manner” and must only reject requests for one of eight specified reasons. The current framework allows for a broad interpretation of “reasonableness” provided one of the eight statutory grounds for rejection is met.

Labour’s pre-election promise that flexible working would become the “default” is reflected in the Employment Rights Bill, in the form of a more onerous obligation on employers to justify their rejection of a flexible working request.

Employers may still (and must only) reject requests for one or more of the eight statutory reasons however they will also need to explain why they consider it reasonable to refuse the request based on these grounds. Employers are essentially being asked to show their working out and provide contemporaneous justification for the refusal.

For example, if an employer refuses a flexible working request because it would lead to a “burden of additional costs,” the employer will need to explain the specific nature of those costs and why they consider those costs unreasonable in the context of their business.

The penalty for a breach of the flexible working provisions will remain unchanged at 8 weeks’ pay.

For more information about these issues, please contact Ciara Scanlon – ciara.scanlon@pannonecorporate.com

Before the election, Labour set out its stall as the party of equality, committed to building on the successes of previous Labour Governments to ensure that everyone thrives at work. The Employment Rights Bill marks the start of that commitment, containing a number of provisions aimed at promoting equality and preventing harassment in the workplace.

Preventing Sexual Harassment

Labour pledged to require employers to create and maintain workplaces and working conditions free from harassment and has made good on that pledge in the Bill.

The Worker Protection (Amendment of Equality Act 2010) Act 2023, which came into force a few days ago on 26 October, requires employers to take reasonable steps to prevent sexual harassment, and whilst the Equality and Human Rights Commission has published updated guidance to help with the new preventative duty, many employers are still in the process of assessing what “reasonable steps” might mean in their organisation.  The Bill makes one important change to the new preventative duty, namely that employers must take all reasonable steps to prevent harassment.

On the face of it, that is a massive ask for employers, and in fact the word “all” was taken out of the Worker Protection Act before it was brought into force for that very reason.  However, the Bill also provides that future regulations may specify the steps that will be regarded as “reasonable” for the purposes of the preventative duty, including carrying out assessments of a specified description; publishing plans or policies of a specified description; steps relating to the reporting of sexual harassment; and steps relating to the handling of complaints.  If, as seems likely, the beefed-up preventative duty is supported by a statutory list of “reasonable steps”, it may in fact be more straightforward for employers to comply.

Third Party Harassment

A more radical change to the Equality Act is the introduction of protection from third party harassment, although employers who have been in business for a long time may recall that third party harassment was covered by the Equality Act for a period of time until 2013 so this “new” protection is not entirely new.

Under the Bill, an employer must not permit a third party to harass one of its employees in the course of their employment. An employer will be taken to have permitted harassment if it failed to take all reasonable steps to prevent that harassment. For “third party” read customers, clients, service users, suppliers, contractors, agency workers, interns, volunteers and members of the public – anyone who is not an employee of the employer.

Helpfully, the current EHRC guidance makes it clear that taking reasonable steps to prevent sexual harassment includes sexual harassment from third parties, so employers should already be thinking about the risk to employees posed by third parties. However, the new protection will apply to all harassment, not just to sexual harassment, so employers will need to broaden the scope of their risk assessments to include the risks of any kind of third party harassment occurring in the course of employment.

Whistleblowing Protection

As a final step, the Bill introduces a new category of protected disclosure for the purposes of the whistleblowing legislation, namely the disclosure of information that tends to show that sexual harassment has occurred, is occurring or is likely to occur.  This doesn’t really add to the existing protection available to employees who report sexual harassment, but it will arguably make it clearer to employees that they have protection.

Protection for pregnant workers

In its policy paper published alongside the Bill, the Government says it will strengthen protections for pregnant workers, making it unlawful to dismiss them within 6 months of their return to work except in specific circumstances.  In fact, the Bill simply provides that the Secretary of State may, by regulations, make provision about dismissal (other than by reason of redundancy) during, or after, a protected period of pregnancy, so the detail for this policy is yet to come.

Equality Action Plans

The Bill sets out the option for future regulations that may require employers to develop and publish an “equality action plan”, setting out the steps they are taking in respect of gender equality and publishing specified information about gender equality in their workplace. Gender equality is defined as advancing equality of opportunity between male and female employees and includes addressing the gender pay gap and supporting employees going through the menopause. This reflects the commitment in Labour’s manifesto to introduce a requirement for large employers to produce Menopause Action Plans

Once implemented, this obligation will only impact private sector employers with 250 plus employees.

In the pipeline

The Government has also committed to publishing a draft Race and Disability Bill “during this parliamentary session”, which will extend the right to equal pay to cover ethnicity and disability and introduce mandatory ethnicity and disability pay reporting for employers with 250 or more employees, so watch this space!

For more information about these issues, please contact Fiona Hamor – fiona.hamor@pannonecorporate.com

Following the highly publicised mass dismissal of P&O employees in early 2022, ‘fire and re-hire’ has become an emotive topic and Labour made it part of their manifesto pledge to end unscrupulous fire and rehire tactics and to strengthen collective redundancy rights. That pledge has been unequivocally fulfilled in the provisions of the Employment Rights Bill.

Fire and re-hire

Currently, employers are permitted to dismiss employees who refuse to agree to a change in their contract and offer them immediate re-engagement under a new contract to effect the change. Although uncommon, the threat of ‘fire and rehire’ can be a tactic used by employers to ensure employees agree to necessary changes in their contract.  Dismissals because of a refusal to agree to a change to terms will be fair for ‘some other substantial reason’ provided the employer can demonstrate they have a sound business reason for seeking to change the contract and they have followed a fair process, including consulting and considering alternative options.

The current approach is supported by a statutory Code of Practice, published in July this year, which sets out the minimum requirements for a fair process in these circumstances.

Reform

The Employment Rights Bill makes a significant change to this approach.  Where an employee is dismissed for failing to agree to a change in their contract, or if the employer dismisses an employee to replace or re-engage them on varied contractual terms, that dismissal will be treated as automatically unfair unless:

• the employer can evidence financial difficulties that were affecting, or were likely in the immediate future to affect, the viability of the business as a going concern
• the reason for making the change was to eliminate, prevent, significantly reduce or significantly mitigate the effect of those financial difficulties, and

• the need to make the change in contractual terms was unavoidable.

Even where the employer meets that test, an employment tribunal will still assess whether the dismissal was carried out fairly.  Relevant factors will include:

• whether the employer consulted with the employee, trade union or other employee representatives, and
• whether the employer offered the employee anything in return for agreeing to a variation to their contract.

Comment

The Bill imposes a high threshold on employers wishing to force through changes to contractual terms. Effectively, it will be unfair to dismiss in these circumstances unless the employer’s business is in dire financial straits.

It is worth noting that the new ‘automatically unfair’ reason covers not just employees who are dismissed because of a refusal to sign up to new terms,  but also employees who are dismissed and replaced with someone else who is willing to carry out the same or a substantially similar role on the varied terms.

Collective redundancies

When it comes to collective redundancy rights, the current position is that employers must inform and consult with trade unions or employee representatives if they propose to dismiss 20 or more employees because of redundancy at one establishment in a 90 day period.

The Employment Rights Bill removes the words “at one establishment” from the equation, meaning that employers who make a small number of redundancies at each of a number of sites or units, but where the total number of redundancies is 20 or more, will find themselves having to inform and consult about those redundancies where currently they don’t have to.

For more information about this, please contact Fiona Hamor: fiona.hamor@pannonecorporate.com

One of the most widely discussed Labour proposals before the election was to make the right not to be unfairly dismissed a “day one right” for employees. The Employment Rights Bill stands by this proposal, although it isn’t clear exactly what it will look like in practice. What is clear however is the impact it is likely to have for employers. Currently, only employees with at least two years’ continuous service can bring a claim for ‘ordinary’ unfair dismissal, so by making this a day one right, the Bill widens the pool of potential claimants significantly.

Overview

The headline in the Bill is the repeal of the two-year qualifying period needed to claim ‘ordinary’ unfair dismissal – employees will be able to bring an unfair dismissal claim from the first day of their employment.

Employees will not ordinarily be able to claim unfair dismissal before they have started work, unless the reason for dismissal:

• is one of the automatically unfair reasons currently listed in the Employment Rights Act, such as whistleblowing or trade union activities
• relates to their political opinions or affiliation, or
• is connected with their membership of one of the reserve armed forces.

The Government has always recognised the need for some sort of probationary period so employers can ensure that a job is a good fit for both the employee and the employer, and the Bill provides for an ‘initial period of employment’, during which dismissals may not be subject to the usual requirements of fairness if the reason for dismissal falls within a particular category, such as dismissal for capability, conduct, or some other substantial reason.

The Bill also provides for the repeal of the two-year qualifying period for the right to written reasons for dismissal. Employees will qualify for this right instead after the ‘initial period’.

The length of this ‘initial period’ and the detail of how employers can dismiss fairly during this period is not set out in the Bill but will follow in regulations yet to be published.  We do however have some idea of what the Government is proposing from the Factsheet that accompanies this part of the Bill. The Government proposes that for the first nine months of employment (described as a ‘statutory probationary period’), a lighter touch and less onerous process for businesses to fairly dismiss someone who is not right for the job will apply.

The length of the probationary period and how the lighter touch dismissal process will operate will be the subject of consultation in due course. Most commentators believe that some form of statutory dismissal process will be put in place during the probationary period, for example with a requirement for a meeting at which the employee has the right to be accompanied.

The consultation will also seek views about the unfair dismissal compensatory award regime for dismissals during the probationary period.

Comment

Even if employees can be fairly dismissed within the first nine months of employment by following a straightforward statutory process, they will still have the right to being a claim for unfair dismissal, however unmeritorious.  So, it will inevitably become more risky to dismiss employees with short-service, and we are likely to see an increase in unfair dismissal claims in the employment tribunal. The question is whether the increase in unmeritorious unfair dismissal claims will be offset by a decrease in unmeritorious claims for discrimination, whistleblowing and other automatic unfair dismissal claims – the sort of claims employees without unfair dismissal rights currently lodge with the employment tribunal.

The Government has confirmed that these changes will not be implemented before Autumn 2026. In the meantime, employers would be well advised to look at how they are managing probationary periods at the moment and consider whether recruitment and performance monitoring practices could be improved in order to ensure new recruits are the right fit for the business and the role.

If you’re a business and would like more information about this issue, please contact Lorna Croft – lorna.croft@pannonecorporate.com

Top 10 tips for defending an employment tribunal claim

Employment tribunal claims are an occupational hazard for all employers. With the best will in the world its not always possible to prevent claims. So, what should an employer do to put itself in the best position to defend a claim…?

1. Prevention is better than cure. Take time to develop effective HR policies and processes, give your managers appropriate training, and develop a culture in which staff are treated fairly. Employers that do this best will usually have fewer claims.

2. If it is necessary to discipline or performance manage employees make sure the right managers are dealing with the process. If the matter ends up in tribunal it will be these managers who are called as witnesses on behalf of the business.

3. Tribunals like to see contemporaneous documentation.. Documentary evidence of what happened is likely to be more convincing than witness recollections.

4. Engage in the ACAS conciliation process. Prior to issuing a claim and during the claim itself ACAS will be available to help the parties settle a claim. Explore whether some agreed resolution is possible to avoid the cost, stress, and risk of having a contested hearing.

5. If your business receives an employment tribunal claim ensure you respond to the claim within the appropriate deadline. The claim will not go away by ignoring it.

6. Engage in the tribunal process. Comply with the tribunal directions and engage with other parties as appropriate.

7. Remember, an employment tribunal is a court of law!

8. Ideally, if your budget allows, you will be in a stronger position if you instruct lawyers to advise and represent you.

9. Be realistic. Understanding the risks and appreciating that tribunal outcomes can be hard to predict will make it easier to manage expectations. It can also help the business make clear and commercial decisions.

10. If you are a witness in a hearing ensure you are well prepared. Giving evidence can be tough so preparing well and knowing the case will make it that bit less stressful!

At Pannone we have significant experience in supporting clients in defending tribunal claims from early advice through to representation at the hearing. If we can be of any help or you have any questions do not hesitate to let us know.

For more information about how Pannone can support your business through HR Plus – a fixed fee employment law and HR support service – contact michael.mcnally@pannonecorporate.com or click here

A positive duty for employers to prevent sexual harassment

With effect from 26 October 2024 employers have a positive duty to prevent sexual harassment in the workplace. Here we take a brief look at what this will mean for employers…

•  The legislation will introduce a positive duty on employers to take reasonable steps to prevent sexual harassment of their employees. This duty is anticipatory meaning an employer should not wait for a problem to arise before taking action.
• The duty is a continuing one meaning employers must monitor, review and refresh the steps they take regularly.

• Tribunals will be able to uplift compensation by up to 25% where an employer is found to have breached this duty.

• The Equality and Human Rights Commission have recently published guidance on steps employers will be expected to take. Here at Pannone we have developed a Toolkit to help employers comply with their obligation.

• A key aspect of the new duty will be the need to carry out risk assessments. An employer is unlikely to be able to comply with the duty if it has failed to carry out a risk assessment.

• Employers should take steps to ensure they have up to date policies and procedures.

• Employers must ensure employees receive frequent training on equality, diversity and inclusion.

• Steps should also be taken to encourage employees to raise complaints about harassment and be confident those complaints will be taken seriously.

For more information about how Pannone can support your business through HR Plus – a fixed fee employment law and HR support service – email stephen.mutch@pannonecorporate.com or click here

How to get managers to ‘buy-in’ to the HR process

A common problem HR experience is getting managers to ‘buy in’ to the HR process. Some managers see HR issues as something others should deal with. If you are responsible for HR in your organisation what  can you do to get manager ‘buy in’?

• Make the business aware of just how costly and stressful it can be to get it wrong. Very few managers look forward to the prospect of appearing as a witness in an employment tribunal!

• Ensure managers are aware that they could be personally named in a discrimination or whistleblowing claim and could therefore be personally liable.  

• Give managers the challenge of dealing with HR issues and push back if they try to avoid it. 

• Encourage managers to see HR policies and best practice as a management tool. Better use of these tools will lead to staff retention, boost employee engagement and get enhanced productivity from their employees.

• Promote the commercial benefits of getting the HR process right. Good HR practices promote diversity within the workplace and have been proven to help SME’s grow their business.

For more information about how Pannone can support your business through HR Plus – a fixed fee employment law and HR support service – contact michael.mcnally@pannonecorporate.com or click here

Baby on board….

What are the things an employer needs to know about making an employee on maternity leave redundant….?

• Firstly, it’s possible. There’s a common misconception you can’t dismiss someone simply because they’re on maternity leave. This is untrue; it is perfectly lawful to dismiss someone whilst on maternity leave. It just needs to be considered very carefully.

• It is unlawful to select an employee on maternity leave redundancy simply because they will already be absent for a prolonged period and vice versa (i.e. not selecting someone because they are already absent).

• Be careful not to use selection criteria, such as attendance records or sales figures, that might be distorted by an employee’s absence on maternity leave.

• Be careful that any consultation process accommodates a pregnant employee’s absence from the office – offer remote meetings, or meetings at a neutral location or even their home.

• Any redundancy payments are based on their original pay and not any reduced level of maternity pay.

• Be careful of overcompensating – even a national law firm got in wrong by overcompensating how a pregnant employee was dealt with in a redundancy situation. The other employees successfully sued their employer on the basis she had been given unlawfully preferential treatment.

• In a rare example of lawful positive discrimination, employees on maternity leave who are ‘at risk’ of redundancy must be given first refusal on any suitable alternative roles – even ahead of other ‘at risk’ employees.

Careful advice is always needed when dealing with employees on maternity to avoid expensive and time-consuming legal challenges.

For more information about how Pannone can support your business through HR Plus – a fixed fee employment law and HR support service – email stephen.mutch@pannonecorporate.com or click here

I’ve hired a liar….!!

What are the things employers need to know when they discover that someone has been dishonest during the recruitment process….?

• If the lie is sufficiently serious, a dismissal for gross misconduct (i.e. without notice) is possible.

• However, if the employee has yet to start work, your safest option can be to dismiss with notice. Usefully only the part of the notice period that falls after their intended start date (if any) needs to be paid.

• Contracts of employment should always make it clear what notice period applies during the period before they start the job. This is because the shorter notice period that is stated to apply during their probation might not apply to the period before they actually start. 

• Lying about your qualifications to get a job can amount to a criminal offence.

• Any emails or messages exchanged about a candidate may well have to be provided to that candidate if they request them.

• Be very wary of asking an employee if they have brough previous employment claims. It may create an assumption that’s why you’ve not hired them – and that would be unlawful.

• Not disclosing a disability or a medical condition will almost never count as dishonesty. The onus is an employer to find out about a candidate’s medical issues and even then, only when it directly relates to their job duties. Employers should always avoid asking sweeping questions about a candidate’s health.

• Neither does not disclosing a pregnancy!

A well thought-out and considered recruitment process is essential for avoiding expensive and time-consuming legal challenges.

For more information about how Pannone can support your business through HR Plus – a fixed fee employment law and HR support service – contact michael.mcnally@pannonecorporate.com or click here

The General Election is just around the corner and is expected to bring a changing of the guard, with Labour firm favourites to take over the post.

A change in government would bring a change in approach, and while the manifestos are light on the detail, they do give us an indication of where possible reforms may come.

Labour has pitched itself as the party that will ‘make work pay’ for working people, in a bid to improve both living standards for those in employment and economic growth. This includes stimulating more funding for training, skills and technology, to help make the UK more efficient and increase productivity levels – something we currently lag behind on compared to our international peers.

An important dynamic in the productivity debate is how workforces function and the legislation that sits around them. So what could we see from a Labour government when it comes to employment law and HR? Let’s look at the detail.

Zero hour contracts

Labour’s plan to ‘make work pay’ includes ending “one-sided” flexibility by banning “exploitive” zero-hour contracts and providing a baseline level of security and predictability for all jobs.

The party believes that too many working people face insecurity when it comes to their working hours, bearing all the risk and being unable to plan and live well. However, the inclusion of the word “exploitive” suggests that Labour has moved away from its earlier pledge for an outright ban on zero-hours contracts.

Under Labour’s proposals, everyone will have the right to have a contract which reflects the number of hours typically worked by reference to a 12-week period.  Workers will also be entitled to receive reasonable notice of any change in shifts or working time, whilst also receiving compensation (proportionate to the notice given) for any cancelled shifts. Anti-avoidance measures will be implemented where necessary to protect the integrity of these policies.

The plans will not prevent workers from the right to be paid overtime rates, nor will it prevent employers from offering fixed-term contracts such as seasonal work.

Basic day one rights

Labour has indicated that it wishes to address what it sees as the unfairness of the current system that requires employees to have two years’ continuous service* before they can bring a claim of ordinary unfair dismissal. The party believes this is an arbitrary requirement which is preventing people from changing jobs and enjoying the resultant wage increases that often accompany such moves, and preventing employers from being able to hire the best candidates.

The length of service required for employees to bring a claim of ordinary unfair dismissal has fluctuated since its inception as a right in 1971. The current requirement of two years’ service was introduced by the Conservative government in 2012 (the requirement remains 12 months in Northern Ireland).

An unintended consequence of the two-year bar has been a rise in the number of discrimination claims brought by employees seeking to find a remedy for the termination of their employment in its early stages. It will be interesting to see if such claims reduce if the right of unfair dismissal becomes available from day one.

Labour has assured employers that they will still be able to operate probationary periods, although how this will work in practice is not yet clear. Commentators have speculated that perhaps dismissals within an employee’s probationary period will be deemed fair so long as a set process is followed.

*While we wait for the outcome of the election, it is worth flagging a point that often catches employers out. Where an employee is dismissed with immediate effect and paid in lieu of notice, the statutory minimum notice period of one week is added on to the dismissal date, meaning that employees dismissed after 103 weeks (one week less than 2 years) can still claim unfair dismissal.

Discrimination, equal pay, and the menopause

Labour’s ‘New Deal for Working People’ plan also includes proposals to promote equality, by tackling the gender pay gap and providing support in the workplace for those going through the menopause.

Large firms will be required to develop, publish and implement action plans to close the gender pay gap. Similarly, employers with more than 250 employees will be required to publish information about ethnicity and disability pay gaps.

There is also a commitment to re-instate the ability for equal pay claimants to draw on comparators in other organisations, where workers’ terms and conditions can be attributed to a single source, and to put a stop to employers outsourcing services to avoid paying equal pay. Labour plans to implement a regulatory and enforcement unit for equal pay with involvement from trade unions.

In relation to the menopause, businesses with more than 250 employees will be required to produce Menopause Action Plans, setting out how they will support employees going through the menopause. For smaller employers, Labour will produce and publish guidance on measures relating to uniform, temperature, flexible working and how employers should record menopause related leave and absence.

Right to switch off

To address what it describes as the ‘inadvertent blurring of the lines’ between work and home life caused by the change in working practices following the pandemic, Labour has committed to bringing in a ‘right to switch off’.

This isn’t a new concept. We can look to a number of European countries which have already given employees some form of right to disconnect, including Ireland. A voluntary code of practice statesthat employees should not be required to carry out work outside normal working hours regularly and should not be penalised for refusing to do so. The code also sets out that employees must respect their colleagues by avoiding work-related contact outside of normal working hours.

Labour’s proposal indicates that it will follow a model similar to that adopted in Ireland, ‘giving workers and employers the opportunity to have constructive conversations and work together on bespoke workplace policies or contractual terms that benefit both parties.’ It seems most likely at this stage that a code of practice will be introduced which can be taken into account by employment tribunals on liability and compensation, but does not in itself create a standalone claim, much like the current Code of Practice on Disciplinary and Grievance Procedures.

Working in partnership with trade unions

Unsurprisingly, one of the areas of employment law that a new Labour government would address is industrial relations.

Its stated aim is to bring in a new era of partnership that sees employers, unions and government working together in co-operation and through negotiation, rather than what it describes as ‘the Conservatives’ scorched earth approach to industrial relations.’

As a starting point, Labour would repeal the trade union legislation brought in by Conservative governments over the past 14 years, specifically, the Trade Union Act 2016, the Minimum Service Levels (Strikes) Bill and the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022.  In particular, repeal of the Trade Union Act 2016 would potentially remove the requirement for at least 50% of all eligible members to vote in a ballot for industrial action in addition to a majority vote in favour, and reinstate the previous minimum period of seven rather than the current 14 days’ notice of strike action.

Referring to the disruption caused by strike action over the past two years, Labour believes its proposals will remove the barriers that currently make it harder for unions to engage in the bargaining and negotiation that settles disputes, and put the UK in line with high-growth economies that benefit from a more co-operative industrial relations culture.

A matter of time

If the polls are right and we have a new Labour government on 5 July, we expect the employment landscape to change quite quickly. Labour has committed to implementing its new its deal for working people within the first 100 days in government.  Over the coming months, it’s essential that businesses keep a watchful eye over a changing landscape to ensure their policies and procedures keep up with the changes.

If you’d like to discuss this blog in more detail, contact Fiona Hamor.

Photo credit: Chrisdorney

Following our AI in the Workplace event last month (May), our guest speaker, Dr Richard Whittle, University Fellow, University of Salford Business School, takes a closer look at AI and the future of work, looking at the uncertainty that exists, as well as the potential. Read more here…

AI and the Future of Work: A landscape of uncertainty

I doubt it is an exaggeration to say that virtually every time you look at the news, your socials or LinkedIn you see another story about Artificial Intelligence (AI). The subject is everywhere and headlines range between an AI utopia of less work and increased productivity, and the AI dystopia of science fiction nightmares. The AI of today is a long way from either extreme; however, it is fast becoming a feature of modern work and life.

You are hearing about AI everywhere you turn, as over the last 18months or so – in waves of increasing sophistication – a new type of AI is producing human realistic outputs in a manner which is both highly accessible and relatively inexpensive. Text, code, images and more can be produced quickly, cheaply and by anyone.

This is Generative AI (GAI) and we will talk more about this later. We will be mostly talking about ChatGPT which many of you will have heard about and may be using, but I should note impartially that there are other models with similar capabilities.

In order to get to grips with the implications of this new technology we must briefly mention the history of AI, this helps us to think about what this technology actually means for us and put the hype into context.

A Brief History of AI: Booms, Busts, and the Path to Today

The journey of AI is a fascinating tale of ambition and unpredictability. Since its inception in the 1950s, AI has experienced periods of significant hype, known as AI booms, followed by phases of disillusionment and stagnation, termed AI winters. These cycles were characterised by overpromises and unmet expectations, as researchers and technologists grappled with the complexities of replicating human intelligence.

This latest boom is marked by tangible breakthroughs that have brought AI out of the lab and into everyday applications, from chatbots to creative content generation. However, history teaches us to approach these advancements with a balanced perspective, mindful of both the potential and the limitations of AI. In recent years, we’ve witnessed a resurgence in AI, fuelled by advancements in machine learning, deep learning, and, notably, generative AI. Here I will borrow a definition from the Turing Institute’s fascinating Generative AI lecture series.

Generative = Create new content.

AI = Automatically with a computer program.

I tend to be cynical of ‘this time is different’ positions, however the accessibility and quality of generated output means that economies, markets and institutions will need to adapt to the ease at which some outputs can now be produced as well as consider the implications of these tools on processes and products. For me, the best way to think about this is in terms of radical uncertainty.

Radical Uncertainty in the Age of AI

The rapid development of AI technologies has plunged us into an era of radical uncertainty. The Resolution Foundation consider that AI “is unknowable in a way that rules out even envisaging some of the possible outcomes, and provides no sensible basis for attaching probabilities to any of them”. Unlike the risks we encounter in traditional scenarios, where probabilities can be assessed and managed, the impacts of AI on the future of work are far more elusive. This radical uncertainty stems from our inability to foresee the full scope of AI’s influence on job markets, economic structures, and societal norms. In short, how do we plan for something we cannot imagine?

Predicting the exact trajectory of AI’s impact on work is challenging. Will AI lead to massive job displacement or create new categories of employment? How will different sectors adapt to the integration of AI? These questions remain open-ended, and our current understanding provides only a glimpse into the possible futures shaped by AI.

Uncertainty is a better way to think about AI, rather than to think about it in terms of risk. Risk is knowable, we can put likelihood and chances onto outcomes, uncertainty doesn’t allow us the luxury of that.

Organisations, policy makers and individuals need to attempt to turn uncertainty into risk in order to plan for ‘the age of AI’. This will allow people to take appropriate risk with incorporating Artificial Intelligence.

You will note that I said appropriate rather than low risk, the potential reward and disruption of AI is great, and purposely low risk adoption may not be possible. The challenge with AI is that its rapid evolution and diverse applications introduce unprecedented levels of uncertainty. Acknowledging this uncertainty is the first step toward developing strategies that can adapt to the unpredictable nature of AI’s future.

As organisations contemplate the integration of AI, they face a paradoxical dilemma: incorporating AI carries inherent risks, yet failing to adopt AI is equally perilous. Embracing AI could lead to operational efficiencies, innovative products, and competitive advantages. However, it also brings challenges such as job displacement, ethical concerns, and security vulnerabilities.  Not embracing AI may however lead to falling behind competitors and consumer expectations.

Disruption in the World of Work

Generative AI is poised to be particularly disruptive in various sectors. In creative industries, AI tools can generate content, design graphics, and even compose music, challenging traditional roles and workflows. In finance, AI algorithms are streamlining processes, analysing vast datasets, and making real-time decisions that previously required human intervention. Digital twins allow us to test new products costlessly and AI product development means the cost of a business trying new things may be virtually nil.

These new technologies generate questions around skills, investment, work and more broadly what type of economy do we want and what will we end up with?

AI could automate repetitive and mundane tasks, allowing humans to focus on more creative, strategic, and interpersonal roles. This shift will necessitate significant upskilling and reskilling of the workforce. Education and training systems must evolve to prepare individuals for jobs in the age of AI, emphasising skills that can be completed by AI rather than compete with it.

Currently though, Generative AI, by automating creative knowledge tasks, is challenging this more traditional view of the role of AI. As X user @AuthorJMac succinctly puts it “I want AI to do my laundry and dishes so that I can do art and writing, not for AI to do my art and writing so that I can do my laundry and dishes.”

Picture credit: gorodenkoff

Radhika Das joined Pannone in July 2018 as a Paralegal from a well-known HR services provider. In the last six years, Radhika has progressed to become an Associate in the firm’s employment team.

Radhika began her career at Pannone mid-way through its 10-year journey at which point it was clear what set it apart from other firms. “I was aware of the Pannone name and that it is well respected in the industry,” she says. “When I joined, the firm had been going for four years post-MBO and I felt it was an exciting time to join.”

In that time, a lot has changed at Pannone, with the employment team, in particular, growing to eight lawyers – a team that has plenty of experience behind it. “I received a team sheet on my first day which had the details of my team members, including the years they qualified,” explains Radhika. “I remember being impressed by the experience in the team and that some of them qualified in the 1990s!”

But it’s the team approach that Radhika values the most about the firm. “It sounds cliché but the people really are the best thing about Pannone, definitely,” she says. “Even though we operate a hybrid model, the office is always busy on any given day, and I think that is because everyone here genuinely enjoys working with their colleagues.”

The last six years have thrown up some real highlights for Radhika, including helping to plan the firm Christmas party in 2019. “It was the best work Christmas party I have been to, even if I do say so myself!”

She certainly has a lot to be proud of. “I joined the firm as a Paralegal,” she explains. “I qualified as a Legal Executive in 2021, I went back to University in 2022 to do my LPC part-time whilst continuing to work, and I finally cross-qualified as a Solicitor in 2023. I took the more scenic route to qualification, but I would not change a thing.”

While the firm has undoubtedly grown and developed during her time at Pannone, so too has the business community that sits around it. So what of the next 10 years?

“The North West business community is already growing rapidly and I can only envisage that this will continue over the next 10 years to level up with the South,” she says.

“In terms of the firm, I would like Pannone to continue investing in its people and talent and to carry on supporting alternative routes to qualification. Without that support, I wouldn’t be where I am today,” she adds.

It’s hardly surprising that when asked to sum up Pannone in one word, the first that springs to Radhika’s mind is ‘talent’.

Facts of the case

Gabriela Rodriguez worked as a cleaner at the offices of Devonshires Solicitors for two years, via contractor Total Clean. She claims she was sacked last year after Devonshires complained that leftover sandwiches were not being returned. She admits eating a £1.50 leftover tuna sandwich, which she thought would be thrown away. Ms Rodriguez is part of United Voices of the World union (UVW), which claims that cleaners (most of whom are migrant workers) are “routinely dismissed on trivial and […] discriminatory grounds. Many describe feeling like the dirt they clean.”

UVW claims Devonshires would not have complained about Ms Rodriguez if she was not a Latin American with limited English. She has brought claims for unfair dismissal and direct race discrimination against Total Clean, and direct and/or indirect race discrimination against Devonshires Solicitors. Devonshires deny that they made any complaint about Ms Rodriguez and Total Clean maintains that it followed a proper process before dismissing her.

Takeaways

It is difficult to comment on the rights or wrongs of the case without having more detail about what exactly happened. However, it would seem the rules that applied to Ms Rodriguez may not have been clear enough. Many employees would not consider eating a sandwich they believe will otherwise be thrown away as dishonest.  If it counts as dishonesty in your organisation, you should make that clear.

It remains to be seen whether Ms Rodriguez will succeed with her claims or if the matter will even reach a full hearing in the tribunal – but it is certainly one to keep an eye on!

In this short article, Jack Harrington and Radhika Das from our employment and pensions team consider the use of mediation as a conflict resolution tool. They look at why employers should be utilising mediation, the benefits of doing so, and how to implement mediation in your workplace.

A recent Acas study found that workplace conflict costs employers around £30bn per year. It reported that nearly half a million employees resign each year as a result of conflict, costing employers around £2.6bn annually. A further 874,000 are estimated to have taken sickness absence each year as a result of conflict, at a cost of around £2.2bn annually.

The study found that while 35% of respondents had experienced an incident of conflict or ongoing difficult relationships at work, just 5% had taken part in workplace mediation. Of those who did go through mediation, 74% said their conflict was fully or largely resolved.

Mediation is a flexible, voluntary and confidential form of dispute resolution increasingly being used for resolving disputes in the workplace as an alternative to more formal procedures. A CIPD survey suggested that ‘mediation is an effective approach to help resolve workplace disputes [which] should be required before using the formal grievance process.’

Larger organisations have set up their own internal mediation schemes in order to train employees to act as mediators. Often, employers prefer to engage an external mediator. External mediators offer a number of benefits, including:

• Saving resources: setting up an internal scheme can be costly and employees often don’t have the time to commit to facilitating a mediation process.
• Conflicts of interest: it can be difficult for an employee to remain impartial and unbiased.
• Seniority: if those involved in the mediation are senior individuals within the business, it can be difficult for an employee to feel comfortable facilitating the mediation.
• Confidentiality: disputes often concern sensitive or confidential information. An external mediator can help to control the spread of that information within the organisation.

A simple first step on the journey to introducing workplace mediation is to include mediation in internal policies and procedures as part of the organisation’s approach to people management. For example, as the CIPD survey referenced above suggests, encourage mediation to be considered before the formal grievance process is used.

It is increasingly being recognised that mediation can be a ‘win-win’ approach – employees are able to reach a resolution without going through a lengthy and adversarial process, and employers are able to improve staff retention and avoid expensive tribunal claims. It is unsurprising therefore that the reported number of mediations carried out in England and Wales jumped from 2,000 in 2003 to 12,000 by 2018 and 16,500 by 2020.

Our employment and pensions team have qualified mediators who would be happy to assist you with implementing mediation as an approach to resolve workplace disputes. For more information, please contact jack.harrington@pannonecorporate.com.

We will be talking more about the benefits of workplace mediation and practical tips on approaching it at our next HR Club on 14 September 2023 – contact jolanta.jones@pannonecorporate.com to register your place.

In this short article Michael McNally and Lorna Shuttleworth from our employment and pensions team consider the use of external investigators when carrying out workplace investigations. They look at why an organisation may instruct an external investigator, the benefits of doing so, and the issues to consider when instructing external investigators.

On 21^st April 2023 the Government published Adam Tolley KC’s investigation report into complaints about the conduct of the Deputy Prime Minister, Dominic Raab MP. Mr Raab resigned the following day. A few days later, on 24^th April, the CBI wrote an open letter on the recommendations of Fox Williams, an external law firm, following its appointment to carry out an investigation after reports in The Guardian in early April of a ‘toxic culture’ at the CBI and other serious allegations. Both stories involve external lawyers being appointed to conduct investigations into serious workplace issues. Whilst these are two high profile examples, organisations will often instruct barristers, law firms, and other independent professionals to investigate serious issues that arise in the workplace.

In this article we look at why, based on our experience of carrying out external investigations on behalf of organisation, an organisation may instruct an external investigator, the benefits of doing so, and the issues to consider when instructing external investigators.

1. Seriousness

External investigators are usually appointed when a matter concerns the most serious types of allegations and/or relates to senior individuals. This was the case in both the Raab and CBI investigations. For example, in the case of the CBI, the external investigation was focused on “whether the CBI’s leadership was aware of any of the events before the recent media reporting, and if so what steps they took or failed to take in response.” In relation to that particular issue, it would be very difficult for someone within the CBI to have looked into that question because it specifically concerned the actions of the CBI’s leadership.

2. Perception

That last point leads on to the next reason why an external investigator may be appointed, namely ‘perception’.

In the case of Mr Raab, the CBI, and other examples such as the allegations of discrimination at Yorkshire County Cricket Club, it could undermine any findings if the organisation was seen to “mark its own homework”. This principle is also true of lower profile, albeit serious, matters.

To be able to draw a line and move on, it’s not enough that an organisation takes the matter seriously, it must be seen to have taken it seriously. Interested parties need to have confidence in the findings. History is littered with examples of investigations and inquiries that are perceived to have been a “whitewash”. Whilst instructing an external party to investigate concerns will not always ensure the right perception, it can certainly help to do so.

3. Complexity

Workplace investigations need to be handled properly and thoroughly. If they are not, there can be serious legal, financial and reputational consequences for the business.

In respect of grievances for example, Acas states that it is highly recommended that anyone appointed as an investigator should be trained in the relevant area wherever possible. If there is no one within the business who is suitably qualified, experienced, and confident to deal with the investigation, it is advisable to instruct a third party with the relevant experience.

The process of identifying relevant issues, questioning witnesses, analysing the evidence, and making findings can be difficult and external investigators will often be chosen for their skills in these areas. For the most serious issues, which as mentioned earlier are usually the subject of external investigations, it is vital that these things are done as well as possible.

4. Neutrality

Best practice is that an investigator is impartial and acts fairly and objectively. For day-to-day workplace issues it will usually suffice that the investigator is not directly involved in the matters being investigated. However, for more serious matters the issue of neutrality needs to be carefully considered.

If the investigator is found, or even just perceived, to have been biased,  it leaves the findings of the investigation open to challenge. Appointing an external party, seen to be a neutral actor in the process can also help in ensuring witnesses are willing to co-operate and are candid when giving evidence.

However, one thing to consider on this point is to what extent the investigator is said to be independent.

Depending on the nature of the investigation external investigators may conduct the investigation on behalf of the organisation (in the same way an internal member of staff might). Whilst this may not be independent in the strictest sense of the word, the fact the issue is being looked at by someone from outside the organisation with specialist skills can still be beneficial. Alternatively, whilst the organisation may ultimately pay the external party for their services, some external investigations are conducted with a view to them being truly independent, for example we have seen published reports that will make it clear that the investigator’s fee will be paid before a report is delivered. If instructing an external investigator it is important to consider the exact nature of their role and ensure that is clearly communicated to anyone with an interest in the process.

5. Privilege

In some circumstances, including where litigation is anticipated, an investigation report may be legally privileged. The scope of this privilege may be wider if lawyers, rather than other third parties, carry out the investigation. Legal privilege is particularly helpful where the organisation does not know what the investigation will reveal, enabling a confidential investigation into  the concerns in order to determine how best to deal with them. Without the benefit of legal privilege, some organisations might well be deterred from carrying out an investigation for fear of what they may find.

We know from our experience of carrying out, supporting, and advising on workplace investigations that these issues play a part in deciding whether to appoint an external investigator. And, whilst we are not privy to the thought process of those who instructed external investigators in the examples cited in this article, no doubt some of these considerations played a part in their decision.

If your business has an issue which requires further investigation, please contact michael.mcnally@pannonecorporate.com.

Pannone Corporate has strengthened its HR and employment law offering for businesses with the launch of a menopause toolkit.

The menopause toolkit will provide employers with a package of materials and legal support to ensure businesses can provide meaningful support to employees managing symptoms of the menopause. 

The launch follows a lengthy inquiry by the House of Commons’ Women and Equalities Committee (WEC) into menopause and the workplace at which Pannone Corporate gave evidence, providing legal insight from an employer’s perspective to illuminate best practice and shared challenges.

According to the WEC, almost a million women in the UK have left jobs as a result of menopausal symptoms. A recent survey commissioned by the committee also found that nearly a third of women miss work due to menopause symptoms and that the vast majority don’t ask for support, mainly because of concerns about how others may react.

The Pannone Corporate menopause toolkit includes an initial assessment of current relevant policies and procedures, a menopause policy which is tailored to each individual business and their needs, guidance for managers, delivery of staff training alongside the policy launch, and a six-month review meeting.

Chloe Pugh, an employment associate at Pannone Corporate, said: “The menopause is a topic that is being discussed in public arenas more than ever before and the subject is, quite rightly, becoming less of a taboo. As awareness of this issue increases, it is important that employers create a culture where staff feel they can request, and will get, support with any menopause related issues they are facing. A failure to deal with such requests appropriately or at all could result in businesses losing valuable employees and potentially facing tribunal claims for sex, age or disability discrimination.”

If you are interested in getting the menopause toolkit for your business, please get in touch with Fiona Hamor on fiona.hamor@pannonecorporate-com.stackstaging.com or call (0)7717 342049

“Before anything else, preparation is the key to success,” said Alexander Graham Bell. Sometimes as HR leaders, it can feel that you have to prepare for every eventuality as you can never predict what the next call or issue may be. But how can you prepare for you or any of your colleagues giving evidence at an employment tribunal?

Our mock employment tribunal training session gives managers and HR teams the opportunity to experience what could happen at this type of hearing and to take part as witnesses! Based on a fictional scripted scenario, we explain the set up and procedure of an employment tribunal hearing and provide you and your colleagues with the experience of giving witness evidence and being cross examined by a legal professional. You will have the opportunity to consider and discuss whether the claimant will win or lose, before hearing the final judgment.

This preparation can make a world of difference to future outcomes because participants will better understand the importance of following fair processes, documenting decisions and the potential consequences of failing to do so. It also gives you the opportunity to see how an employment tribunal operates and what sort of factors make the difference between winning and losing, as well as being quite good fun!

Here’s what some of our participants said:

John Wrigglesworth, Operations Manager, Rail Gourmet

“I found the mock tribunal very useful. Certainly, in how the judge rules, and the rationale behind it. Understanding the legal rationale more than I did and then the emphasis on witnesses coming across as credible were my main takeaways.

“Prior to that I thought the written evidence/bundle held far more sway but your credibility on the stand counts for a lot.”

 James Turner, Head of People Services, SSP

“A fantastic event which prompted really good participation and discussion throughout from the audience. Essential training for any leader who hosts any type of ER meeting with colleagues. Relevant case studies from outside of the business really helped bring alive the need to manage cases thoroughly, applying fair judgement, not just policy and process.”

Kerry Rodgers, Operations Manager, SSP

“It was a fantastic day and certainly an eye opener. It certainly will make me think more when doing grievances and appeals.”

To find out more about how we can support your business through training and development opportunities like these, take a look at the Pannone Academy website.

The Legal 500 is positioned as the ‘client’s guide to the best law firms’ because it is underpinned by client feedback and insight about how a firm and its lawyers work. It’s an important benchmark, which celebrates our team, allows us to build on success and strive for continuous improvement.

The Legal 500 rankings for 2022 – highlighting the practice area teams who are providing the highest quality legal advice – feature Pannone Corporate in 15 areas of law, moving up in two corporate & commercial, and commercial property.

The rankings include Tier 1 listings for our contentious trusts and probate, media and entertainment, and debt recovery teams. As well as the teams’ success, three people were named in the Hall of Fame, the firm had six namechecks for ‘leading individuals’, two ‘next generation partners’ and four mentions for ‘rising stars.’

Beyond the numbers and fantastic recognition in the rankings, we’re proud to see all the feedback from clients. Here’s what they said:

Contentious trusts & probate

“What sets them apart is their ability to combine their knowledge of the law, the softer skills of client care and an ability to be direct. The clients I have referred to them are by the nature of the specialism in a highly emotional state and every one of them has been gushing in their praise of the work done by this team.”

Debt recovery 

“An engaging, tenacious team who are practical and efficient in what they do. They have worked with us and our functions to provide a seamless recovery service to suit our business needs.”

Media & entertainment

“Liaison with clients takes on a personal form and the relevant legal staff do not need reminding about issues. They keep in touch.”

Employment 

“Responsive, accessible and commercial practitioners who work with us, as the client, to arrive at the right outcomes for our business.”

Health & safety

“A new team but one with excellent experience and technical expertise with a dynamic can-do approach and a personable demeanour.”

Intellectual property

“…amazing from our first meeting right to the conclusion of my case, our first meeting gave me hope in a situation which I had long since deemed a lost cause… extremely empathetic to my situation and secured a settlement against a formidable adversary.”

IT & telecoms

“Attentive, personal and always available for advice and guidance.”  

Professional negligence

“Highly specialised firm with a strong track record in claimant professional negligence work.”’

Commercial litigation

“Pannone Corporate has lawyers at the top of their respective disciplines and a client base to match. Customer service is a key ethos at the firm with a high degree of partner involvement ensuring the client gets the service it needs. Electronic document management and searching ensures that key documents are identified early in the case.”

Corporate & commercial

“…adaptive and pragmatic in their guidance and advice. We completed three transactions with them and found them to be sensibly priced and adaptive in their approach to the size and scale of due diligence required.”

Property litigation

“Pannone Corporate strikes an excellent balance: they have the big-firm capacity to handle large and complex cases, but the small-firm responsiveness and personal touch. They have the flexibility and skills to manage cases that cross between different fields, for example real estate litigation that raises company law, insolvency or property damage issues.”

Commercial property

“The approach of Pannone and their staff is very much aligned to our values, what is important to us and the way we like to operate, Pannone recognise this and it’s reflected in the service they provide. It’s important when dealing with legal matters that a firm has the ability to tailor its service to work in partnership with its clients, take time to understand our objectives, the way we operate and therefore offer a more bespoke service to deliver the right outcomes. I feel that this is a specific strength of Pannone.”

Insolvency & corporate recovery 

“The team are always ready to help and have found innovative solutions to technical problems.”

Construction 

“All of the partners feel like extended members of the in-house team. They are flexible and accommodating.”

As employers welcome back staff in the coming weeks, Fiona Hamor catches up with People Management magazine to talk about what employers need to be aware of from a HR and employment law perspective.

While remote working has thrown up significant challenges for employers, a return to the office will equally create newfound problems generated by COVID-19. Recent employment tribunal rulings have highlighted some of the issues that have arisen from the pandemic, which have led to unfair dismissal claims being made.

Fiona says: “COVID-19 has undoubtedly left an indelible mark on the workplace and businesses have had to adjust to new ways of operating. The return of workers over the coming months will continue to pose unprecedented challenges to employers. The need to understand, assess and act on potential risk is clear, if businesses are to remain operational and to protect against any potential future claims.”

Read the full article on the People Management website. https://www.peoplemanagement.co.uk/experts/legal/what-to%20consider-employees-return-to-workplace

In our latest My Life in Law, we speak to employment director, Stephen Mutch, about his career in law and his love of bass playing in indie/alternative group, BC Camplight.

•  When did you join Pannone Corporate?

I’m what’s called a ‘one club man’ in football.  I joined Pannone Corporate’s predecessor firm as a fresh-faced trainee lawyer back in 2003. This isn’t actually that rare at Pannone Corporate – there are a good handful of people here who joined when I did.

• What was your role/experience prior to joining?

I joined Pannone straight from university, having completed a law degree at the University in Sheffield and a post-graduate in Chester.

• Why did you join Pannone?

They had a great reputation and a very varied portfolio of legal work. Even back then, they prided themselves on having a more human element than most firms – something I still think is true after nearly 20 years.

• Having gone to university, why did you choose this route?

I’m rather ashamed to say that back then it was simply what most people did. Progress has been made, in terms of alternative routes into a career in law, but there’s still a very heavy reliance on a ‘good’ degree from a ‘redbrick’ university to open up doors. Lots more still needs to be done.

• What is the most satisfying aspect of your job?

I like the intellectual challenge and getting to speak to and help people run their businesses. Employment lawyers are almost always a ‘distress purchase’, so it’s nice to help people with the problems or challenges their business are facing.

• What does a typical day look like?

I spend most of the day on the phone or emailing clients providing advice, mixed in with a healthy dose of preparing clients’ defences for employment tribunal proceedings.

• What are your career ambitions?

I’ve always enjoyed helping more junior lawyers navigate what can be a very difficult first few years, so more involvement in what I enjoy. That’s on top of the usual partnership, world domination type ambitions of course…

• What would you be doing if you didn’t have a career in law?

I would be a penniless and struggling musician (please see below)

• What can lawyers / the legal profession do to better support clients? Does anything need to change?

I think some lawyers can still be a bit stuffy. Rarer these days, but clients don’t want that kind of lawyer anymore. Being user friendly and pleasant to deal with is top of most client’s priorities.

• What do you enjoy doing outside of work?

I play bass in indie/alternative band, BC Camplight, which releases records under the Bella Union label in London, so that takes up a lot of my time. We’ve been on the radio a fair bit and get to do around 30-40 shows a year. We’ve toured in Europe and played some of my favourite venues, such as the Roundhouse in London and the Paradiso in Amsterdam (Nirvana played there!) – there were 3,000 people in the audience, and I turned off my own instrument for our last song. Not cool! Our next record is out in the Spring.

I am also a trustee for a local arts-based charity called Art with Heart. Check them out here  https://artwithheart.org.uk/

• Do you have any particular skills/talents that your work colleagues may not know about?

I would say ‘please see above’, but I bore everyone to death with my tales of the (not so) rock ’n’ roll lifestyle!

The latest figures from The Advisory, Conciliation and Arbitration Service (Acas),  show the significant financial impact workplace conflicts can have on a business.

In its latest report, Estimating the Costs of Workplace Conflicts, Acas has said that workplace conflict costs UK employers £28.5 billion every year, an average of just over £1,000 for every employee. This is based on the total cost to organisations in handling workplace conflict that includes informal, formal and legal processes, as well as the cost of sickness absences and resignations.

During a period where margins are being stretched, additional costs such as these will only increase the considerable financial pressure being placed on businesses. If you add to the fact that, according to Acas, nearly half a million employees resign each year as a result of conflict, then the argument for taking a proactive approach to workplace conflicts has never been clearer.

Handling disagreements and complaints early before employment relationships are damaged not only helps to save businesses time and money in managing those claims, but it can also prevent unnecessary recruitment costs further down the line.

So, as a business, what can you do to try and prevent workplace conflicts from materialising?

A proactive approach

The key is prevention. Having a robust set of policies and procedures in place that are clearly communicated to employees and managers is an important step in creating an open and transparent workplace. If your business instils agreed customs, ideas and behaviours that everyone buys into then you can create a positive culture where people believe they are being listened to and one that encourages employees to handle any potential conflicts in a proactive and positive way.

Handling grievances

It’s essential to have a formal, written grievance procedure in place that is reviewed on a regular basis in line with any changes in legislation or official guidance, and managers should receive relevant training, so they know the steps to be followed. Ensure that when a grievance is raised, you refer to your procedures immediately – allowing you to manage workplace conflicts effectively and in a formal way. This includes investigating grievances fairly and consistently; creating open lines of communication for everyone involved; taking action and making decisions as soon as possible; and allowing the employee the right of appeal.

Focusing on diversity and equality

Creating a culture of fairness and inclusion is key when focusing on diversity and equality. This should be displayed throughout an employee’s journey with the company – from recruitment, through to day-to-day activities and any formal exit interview. Ensure key members of the team are aware and follow the correct procedures and are actively identifying and acting upon any potential breaches. Finally, arm each and every member of staff with the skills and training to ensure diversity and inclusion become a natural part of the organisational makeup of the business, and not something that you simply pay lip service to.

Bullying and anti-harassment

A policy on bullying and anti-harassment is also helpful as it can set out the company’s standpoint on such behaviour, give examples of what this can look like and make it clear it won’t be tolerated. This can reassure employees who feel they are being bullied or harassed that they can raise any concerns in a safe space, and set out the steps for you to take action against any perpetrators where appropriate. Training for staff and management on this subject can also help to the avoid behaviour arising in the first place, by illustrating that it is not acceptable in your workplace and highlighting the potential consequences.

In a world where more than half of employees are currently working from home, it’s vital to have the right systems in place that provide you with the flexibility to manage potential grievances that may arise remotely, while ensuring they’re firmly in place once people start to return to the office.

If you would like to discuss providing training for your staff around any of these issues, contact Chloe Pugh on chloe.pugh@pannonecorporate-com.stackstaging.com call 07500 797553, or visit our training website Pannone Academy at https://www.pannoneacademy.com.

The impact of the coronavirus pandemic has been complex and far-reaching. No facet of business, or society, has escaped the effects of COVID-19 and serious questions have been asked of both employers and employees. 

While the issue of fraud – and more specifically employee fraud – has been on the radar for many years, the unique challenges posed by the pandemic have brought the problem under the spotlight in recent months. 

Whether it’s payment fraud, procurement fraud, personnel management, travel or subsistence fraud, exploiting assets and information, or receipt fraud, cases of employee fraud are common. According to Action Fraud, nearly 1 in 5 small businesses have been defrauded by an employee at some point during their trading history, causing significant loss and damage. Unsurprisingly, recent figures from NatWest show that UK businesses have been hit by fraud at a cost of £190 million a year, with 40% being caused by internal employees.

Despite a general perception around the issue, fraud isn’t always the product of malicious intent. Quite often, it materialises from despair, a lack of ability, or even inexperience. With many employees working remotely, and feeling disconnected from the structure and security of the workplace, it’s little wonder the problem of employee fraud has come under the spotlight. 

Times of economic uncertainty or economic boom, as evidenced before and as a result of the 2008 financial crash, often lead to an increase in fraud. Circumstances created by the pandemic – homeworking, job insecurity and financial hardship, and availability of financial support from the Government – all create an environment in which workplace fraud can increase.

Pre-pandemic, the fear of the boss “looking over the shoulder” could be a key factor in limiting employee wrongdoing and minimising the risk of employees falling victim to fraud from third-parties. However, the pandemic has forced employers to rely to a greater extent on its internal policies and procedures, as well a trusting its employees to do the right thing.

 To minimise the risk of fraud by employees, employers should consider:

• Reviewing and (as appropriate) improving their internal policies and practices, so that employees understand what is and is not acceptable in the workplace.
• Ensure their IT security is fit for purpose now that many employees are working from home and will continue to do so long term.
• Deal with concerns promptly and proactively before they escalate. This approach can help maintain high standards within the workplace and promptly deal with issues before they get out of hand.
• Implement mandatory periods of annual leave, job rotation and other similar measures to protect against employee fraud.
• Review the financial incentives provided by the employer and consider whether they could in fact encourage employee wrongdoing.
• Ensure employees receive adequate training on the employer’s systems and their obligations under the likes of the Bribery Act 2010.
• Work on creating a culture in which employees feel they can talk to their employer about concerns, such as financial worries. If the employer does not have one it could look at implementing an employee assistance programme.

 To minimise the risk of employees’ actions resulting in fraud by others:

• Make sure employees know that they can speak to their manager if they have concerns or are worried about anything.
• Ensure employees receive adequate training and support.
• Educate employees on the risk of fraud and how fraudsters may target them individually or the employer’s business. 

Whilst a determined and sophisticated fraudster will always find a way, most workplace fraud (committed by or against employees) is often opportunistic and possibly due to lapses in oversight, poor management, or simple human or technology error. Taking a risk-based approach to identifying the greatest areas of risk within a business can help an employer effectively review, monitor, and minimise risk and to put in place the appropriate systems and defences to protect against internal fraud.

 If you would like to discuss the topic of employee fraud, contact employment director, Michael McNally, on 07736617394 or email Michael.McNally@pannonecorporate-com.stackstaging.com

Background

The employee, who is of Pakistani descent and her religion is Islam, was working for a food retail company in the sales team. She pursued a claim for direct discrimination and harassment on the grounds of her race and religion for various matters, including: 

• That she had higher targets than her colleagues and her concerns regarding this were ignored;
• That she was not awarded a salary increase;
• That her manager treated her differently to her colleagues in the way he addressed any performance concerns with her; and 
• That her manager asked her to pick up an item that went against her religious belief, namely a pork product, and allegedly laughed at her when she said it was against her religious belief.

Some of the allegations relied upon were outside of the Tribunal’s time limit, however the Tribunal had to consider all of the allegations to understand whether time should be extended on the basis that the treatment complained of was a ‘continuing act’. 

The ruling

All of the employee’s allegations failed. The Tribunal found that she was not treated differently because of her religious beliefs, nor was she forced to pick up an item that went against her belief or laughed at when she informed her manager that it was against her beliefs.

 Why is it important?

The case is a useful reminder that if a poorly performing employee is the only individual within the company of a certain race or religion, this will not necessarily translate into a claim if an employer can clearly evidence the underperformance.

The allegation that the employee was asked to purchase and handle an item of food that went against her religion is of particular interest. It’s likely that many employers in the food and hospitality industry will come across employees who adhere to certain values or beliefs. This may mean that they don’t consume or handle certain food or drink items for this reason, but who would be expected to handle such items during the ordinary course of their employment. 

This case serves to demonstrate that employers should be aware that there could be a risk of discriminating against employees if they are asked to handle items that go against their religious beliefs and they should be mindful of this when allocating tasks. 

The saving grace for the employer in this case is that no pressure was put on the employee to purchase or handle the pork product. In fact, when the manager in question was informed that this request went against the employee’s religion, he immediately told her he could organise for someone else to source this product, but the employee said she would be willing to do it provided her contact with the item was minimal.

If you would like to discuss any employment related concerns within your workforce, contact Katie Kennedy on Katie.Kennedy@pannonecorporate-com.stackstaging.com or call 07711 767099.

The mental and physical wellbeing of employees will be the biggest HR challenge for businesses in the next 12 months, as concerns grow about the welfare of remote workforces. 

More than half of HR professionals (55%) admit that the issue will be the main focus in the year ahead, with an overwhelming 83% saying they have concerns about the overall mental wellbeing of employees as a result of the pandemic.

According to our survey of HR professionals, carried out during a recent HR Forum, managing the ongoing COVID response, including the Coronavirus Job Retention Scheme (CJRS), redundancies and health and safety, was also a significant HR obstacle. Furthermore, managing change for future working ranked highly amongst HR professionals, as they continue to adjust to a new hybrid of home and office working, the impact on wellbeing, recruitment, flexible working and performance management.

The survey found that a significant number of respondents planned to make permanent operational changes in 2021, as a result of their lockdown experience, with nearly half (44%) intending to introduce flexible working, and a further 44% looking at a working from home model.

Jack Harrington, partner and employment lawyer at Pannone Corporate, commented: “The workplace has changed beyond recognition in the last 12 months, with what were sometimes seen previously as peripheral HR issues being brought to the fore as a result of the pandemic. 

“Unsurprisingly, the majority of HR professionals (94%) anticipate an increase in flexible working requests as restrictions are gradually lifted, with nearly half (44%) planning permanent changes to contracts of employment or HR policies, as businesses continue to adjust to the new ways of working that COVID-19 has forced many employers to adopt.”

Currently, all employees have the legal right to request flexible working – not just parents and carers. Employees must have worked for the same employer for at least 26 weeks to be eligible for making a ‘statutory application’. However, campaigners, including employment and discrimination barristers Ijeoma Omambala QC and Rebecca Tuck QC, presented their ‘Flexible Working Beyond a Crisis’ report, funded by Sir Robert McAlpine, to the Law Commission last month. This follows a six-year campaign to make flexible working a right for everyone from day one. 

A staple in every employment contract, the non-compete clause serves to act as a deterrent for any employee looking to jump ship and set up a similar business in direct competition with their former employer.

Despite being somewhat difficult to enforce, it’s their mere presence in a contract of employment that makes them as effective as they are, particularly when coupled with other clauses, such as confidentiality and protection of intellectual property.

However, there are two schools of thought emerging on the non-compete clause – one that thinks they’re an essential way of protecting a business, by deterring employees from taking ideas, clients and staff to set up shop round the corner within a certain period of time; and then another, which believes that the contractual clause is actually stifling entrepreneurship, particularly in the technology sector, inhibiting economic growth and innovation.

According to reports, the government falls into the latter and will launch a public consultation within days to determine what changes need to be made to non-compete clauses, and to make it harder for employers to block staff from leaving to set up rival companies, in an effort to nurture more start-up businesses.

Apparently, the government is concerned that current use of the clauses is thwarting workers from leaving jobs and setting up their own businesses. As such, ministers are looking at whether reform in this area could enable free movement of future talent – as seen in California and, more specifically, Silicon Valley.

For many business owners, the thought of diluting such a clause, regardless of how difficult it is to enforce, is a worrying one – particularly smaller businesses that don’t have the means to challenge employees who go on to set up rival companies. Importantly, ministers are not expected to ban non-compete clauses altogether, but instead focus on whether they are well targeted and reasonable.

Regardless of the outcome, the fact still remains that the detail within an employment contract is crucial – not only in protecting a business, but also employee rights. We see time and again the value in getting contract wording right. Nothing can be put down to interpretation; nothing can be stretched to fit a certain situation; you have to have an employment contract that is properly drafted to enable an employer to show that the restriction goes no further than is necessary to protect its legitimate business interests. This point was illustrated in the recent case of Gemini Europe Ltd v Sawyer where the High Court agreed to uphold an interim injunction, enforcing a nine-month non-compete clause in a former employee’s contract of employment. This centred on the managing director of Gemini, a company that operates in the emerging and highly lucrative cryptocurrencies sector, leaving the business and joining a competitor three days after his employment came to an end.

Despite a complex contractual arrangement, the court found in favour of the business and was satisfied that the contract was valid, enforceable and that Gemini was entitled to protect confidential information which would have given the competitor an unfair advantage.

Whether a government-inspired public consultation will lead to a reform of non-competing clauses is yet to be seen, but what it does emphasise is the importance of regularly reviewing employee contracts to ensure that not only their restrictive covenant clauses are appropriate and reasonable, but also the confidentiality provisions are up-to-date and relevant.

What’s more, any changes to non-compete clauses can only serve to emphasise and heighten the significance of other clauses contained within employment contracts, such as confidentiality and protection of intellectual property.

If you would like further information on ensuring your employment contracts are watertight, contact our employment team.

Employees are what makes a business tick but what happens when the employment relationship goes wrong?  Sometimes workplace relationships break down, issues with performance or conduct arise, disputes develop, and if these can’t be resolved internally or result in a dismissal, a tribunal claim may follow. 

Dealing with an employment tribunal claim can be costly and involve substantial management time and work, as well as being worrying for colleagues who are involved as witnesses, but there are steps you can take to minimise the chances of receiving a claim. 

Contracts and Policies 

When it comes to avoiding employment claims and protecting your business, there are no easy answers, however putting in place effective employment contracts and HR policies and applying them consistently is the first and most important step.  

The second step is to keep those contracts and policies up to date. Employment is an area of law where the goalposts are constantly being moved or removed, so a regular review of your contracts and policies will ensure that you remain compliant with current legal standards and requirements and minimise the risk of employment tribunal claims.

Training

Contracts and policies don’t work in isolation.  Ensuring that your managers are well prepared on how to, and more importantly how not to, deal with formal grievances, investigations and disciplinary hearings is a crucial step in preventing a straightforward matter from escalating into a tribunal complaint. There are a number of clear procedural stages that need to be carried out for a dismissal to meet the legal test of fairness – providing training sessions for managers will equip them with the relevant knowledge to follow the appropriate procedure. 

Training for employees on equality and diversity and the standards of behaviour you expect in the workplace is also important – conduct that some employees consider to be harmless may in fact make others feel very uncomfortable at work and may be unlawful. 

Equality and diversity training is also essential as part of a “reasonable steps” defence for your organisation in the event that a member of staff is harassed by a rogue employee.

The Human Element

An informal face to face meeting with an employee who has a concern, or about whom you have a concern, can work wonders if handled in a sensitive way. Where appropriate, a friendly, honest chat in the early stages can resolve a complaint before it develops into something more formal and if an employee feels they have been listened to and dealt with reasonably, they may be less likely to take the matter further. Similarly a word to the wise may lead to an improvement in performance or conduct without the need to take formal disciplinary action – if the problem persists you still have the option of moving to a more formal stage of the disciplinary process with the advantage that this will come as less of a surprise to the employee. 

The Letter from the Tribunal 

What happens if, despite your best efforts, you receive an employment tribunal claim?

You will often (but not always) have advance notice of an incoming claim in the form of a telephone call from an ACAS conciliator – all potential claimants must contact ACAS to discuss early conciliation before lodging a claim although there is no obligation on either party to pursue conciliation. 

In any event you should be on the look out for the arrival of a claim form – note that forms are not always sent to the right place or person so alert all managers.

Once the claim form lands, it is essential to take advice and act quickly – the time limit for responding to a claim is 28 days from the date it is sent out to you. Ignoring a claim is not an option, a failure to lodge a defence is likely to result in a default judgment being entered against you. You will need to gather all the relevant evidence and speak to the people involved as soon as possible so you are in a position to lodge the best possible defence. 

Our expert employment team here at Pannone Corporate can provide bespoke in house training and carry out contract and policy reviews, as well as supporting and advising you to defend tribunal claims. If you’d like to discuss any of these matters, or for advice on HR and employment law issues more generally, please don’t hesitate to get in touch with us on 0800 131 3355 or fill out our contact form.