Welcome to your Quarterly Employment Law Bulletin from Roots HR.
This quarter we update you on…
Emerging HR themes
In the past 1-2 years, several emerging HR themes have gained traction in the UK, reflecting broader shifts in the workforce, technology, and societal expectations. These themes include a stronger focus on employee wellbeing, diversity and inclusion, hybrid working, and the integration of technology into HR processes. Here’s a breakdown of the key themes:
Hybrid and Flexible Working Models
- Post-Pandemic Normalisation: The shift to remote working during the pandemic has now evolved into a more permanent hybrid model for many organisations. Employees expect flexibility in terms of where and when they work.
- Challenges of Hybrid Work: Managing teams in hybrid environments has introduced new HR challenges, such as maintaining productivity, collaboration, and ensuring a positive work culture despite physical separation.
- Work-Life Balance: Employees increasingly value work-life balance, and flexibility is seen as a key component in attracting and retaining talent.
- Engagement in Remote and Hybrid Work: Keeping employees engaged and motivated has become more complex with remote work. Focus on enhancing virtual engagement through regular check-ins, virtual team-building, and digital communication tools.
Employee Wellbeing and Mental Health
- Holistic Approach to Wellbeing: There’s a greater emphasis on not only physical health but also mental, emotional, and financial wellbeing. Social sector organisations are increasingly offering mental health support, such as employee assistance programs, access to counselling, and wellness initiatives.
- Burnout and Stress: The pandemic accelerated issues around stress and burnout, leading HR consultants to advise on strategies to mitigate these risks through workload management, wellbeing support, and resilience training.
Diversity, Equity, and Inclusion (DEI)
- Focus on Systemic Change: The UK has seen a growing movement towards addressing systemic inequalities. HR strategies should clearly incorporate DEI policies aimed at creating more equitable environments.
- Inclusive Hiring Practices: There is a shift towards using tools or processes to remove unconscious bias in hiring – see our latest webinar on strategies to avoid unconscious bias in interviewing.
Talent Acquisition and Skills Shortages
- Skills Gaps: Many sub-sector such health and social care are facing significant talent shortages, with many organisations focusing on upskilling and reskilling their existing workforce.
- Employer Branding: In the face of competition for top talent, organisations are investing in employer branding to appeal to candidates through their organisational values, culture, and social impact.
Legislation and Regulatory Compliance
- Changes to Employment Law: The UK government has introduced several changes to employment law, such as new rules on flexible working requests, pay transparency, and Brexit-related impacts on immigration and labour markets. As we have seen over the last few weeks the government has now announced more changes through the Employment Rights Bill.
Generational Workforce Changes
- Generation Z in the Workforce: Gen Z employees are in the workforce, bringing new expectations around flexibility, purpose, and the use of technology. HR strategies are increasingly being adapted to meet the needs of this tech-savvy and socially conscious generation.
- Multi-Generational Teams: Managing multi-generational teams, each with different expectations and communication styles, is a growing area of focus for HR.
These emerging themes reflect the rapid evolution of the workplace in the UK, driven by technological advancements, changing workforce demographics, and new societal expectations. To remain at the forefront of addressing these challenges, contact us to see how Roots HR can help.
Workers (Predictable Terms and Conditions) Act 2023 shelved
It has been confirmed that the Workers (Predictable Terms and Conditions) Act 2023 will not be brought into force this autumn, as originally expected.
The Act gave workers with uncertain hours the right to request predictability about their working days and times, the number of hours worked, and the length of their contract. The Act received Royal Assent in September 2023 and Acas had published a draft Code of Practice on handling requests made under it. This now all looks to have been shelved.
However, the idea itself is likely to live on. A spokesperson for the Department of Business and Trade gave the following statement to Practical Law:
“We will introduce a new right to a contract that reflects the number of hours regularly worked as part of our significant and ambitious agenda to ensure workplace rights are fit for a modern economy, empower working people and deliver economic growth.”
This statement is in-line with the briefing note which accompanied the King’s Speech in July, where proposed legislation “banning exploitative zero-hours contracts” was linked to “ensuring workers have a right to a contract that reflects the number of hours they regularly work”.
Policy paper setting out what to expect from Low Pay Commission on national minimum/living wage from next year
The Low Pay Commission (LPC) has published a Policy Paper setting out how it will respond to its updated remit from the government. The LPC is an independent body that advises the government on the National Minimum Wage (NMW) and National Living Wage (NLW) each year.
Following July’s general election, the LPC’s remit has been updated to require it to take account of the cost of living and expected inflation up to March 2026, and to not fall below two-thirds of median hourly earnings when setting recommendations for NMW/NLW. Given that wages are currently rising faster than inflation, the two-thirds of median hourly earnings currently forms the ‘floor’ for the LPC’s recommendations.
To assess the cost of living, the LPC states that it will use a broad range of metrics and evidence, including headline measures of inflation, the ONS Household Cost Index (HCI) and other qualitative measures of living standards.
Points to take from the Policy Paper which may assist employers with what might be coming up in terms of the level of NMW/NLW from April next year include:
- An expectation that there will be a larger increase to the 18-20 year old rate, than to the 21 and above rate. This is to bring the two rates closer together and work towards the government’s aim of abolishing the 18-20 year old rate in due course.
- The LPC’s current central estimate is that an NLW increase to £12.10 (5.8 per cent) would be required to maintain the ratio of the NLW to median hourly pay at two thirds of median earnings. However, this figure is likely to be subject to change (it has already increased from an estimate of £11.89 back in March).
The LPC is due to submit its recommendations to government by the end of this month, October 2024.
Sickness and holidays
If an employee falls ill during a period of booked holiday, then, provided they notify you as the employer, they are entitled to convert the holiday to sick leave. This saves them holiday days which can then be used at another time. What does this mean for employers?
Here are some key points:
- Time off on holiday is paid as normal pay. Sick leave rules are different. If you pay Statutory Sick Pay, only then will this be payable (if the employee is entitled to it). If you operate enhanced sick pay, then this would be payable instead, unless policies state otherwise.
- Make sure that the absence is logged as sickness on any attendance management system. Absences on holiday are not generally monitored, but the monitoring of sickness absence is very important. Again, a clear rule on this makes it less likely that employees will seek to re-categorise their leave as sick leave without good reason.
- Consider what evidence you can require the employee to produce in relation to their sickness. If the employee is abroad, then they may struggle to obtain a medical note. However, you could include in your sickness policy a requirement to produce medical evidence if possible. You could even agree to reimburse the cost of obtaining a doctor’s note abroad.
- If calling in sick whilst on holiday is a particular issue for your business, then consider amending your sick pay policy to state that any absences for sickness during pre-booked holidays will be paid at Statutory Sick Pay only. This provides a financial disincentive.
- If an employee falls sick whilst on holiday and there is not enough time in the current holiday year for them to take the holiday days they have effectively ‘recouped’ whilst being off sick, then the employee must be allowed to carry over the holiday into the next holiday year. This rule applies to four weeks every holiday year (or the full 5.6 weeks for part year and irregular hours workers for holiday years beginning after 1st April 2024). The carried over holiday must be taken within 18 months of the year it accrued.
5 things you should know about part-time workers
According to the UK Parliament’s UK labour market statistics, over 8 million people are currently employed on a part-time basis. Part-time workers in the UK have protection from discrimination in the form of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. Here are 5 things you should know about this legal protection:
- Equal Treatment: Part-time workers must receive the same treatment as full-time workers, including pay rates, benefits, and leave entitlements, unless there is a justified reason for the difference.
- Pro Rata Basis: Benefits such as holiday entitlement and pensions should be calculated on a pro rata basis, meaning part-time workers should receive a proportionate amount compared to full-time workers.
- Right to Request Full-Time Work: Part-time workers have the right to request a move to full-time work if a suitable position becomes available.
- Protection from Discrimination: It is illegal to treat part-time workers less favourably solely because of their part-time status, ensuring they are protected from unfair treatment and discrimination.
- Access to Training and Promotion: Part-time workers should have the same access to training opportunities and career progression as full-time workers.
Statistically speaking, women and those with disabilities are more likely to work part-time than other people. Employers should bear in mind the separate and distinct risk of sex or disability discrimination claims in circumstances where part-time workers are treated less favourably than their full-time colleagues.
Anti-Islamic aspects of Claimant’s belief in English nationalism not a protected belief under Equality Act 2010
Under the Equality Act 2010 employees have protection against discrimination on grounds of ‘religion or belief’. Whether or not a person’s views should be regarded as a ‘protected belief’ is often a contentious initial issue.
In Thomas v Surrey and Borders Partnership NHS Foundation Trust, the Claimant said that his assignment had been terminated by the Respondent because of his belief in English nationalism. As a preliminary issue, the employment tribunal considered whether his belief was a ‘protected belief’ under Equality Act 2010.
The tribunal held that, although many aspects of the Claimant’s belief in English nationalism would have been found to be protected by Equality Act 2010, his belief included anti-Islamic beliefs. He believed that there was no place in British society for Muslims or Islam itself and that Muslims should be forcibly deported from the UK. The tribunal held that his belief fell foul of the fifth criteria from Grainger v Nicholson: that the belief must be worthy of respect in a democratic society, must not be incompatible with human dignity and not conflict with the fundamental rights of others. The Claimant’s belief was not protected. The Claimant appealed.
The Employment Appeal Tribunal agreed with the tribunal. UK law had to be interpreted, insofar as possible, in accordance with the European Convention of Human Rights (the Convention). Article 17 of the Convention states that a person cannot claim the protection of the Convention where to do so would allow the performance of any act “aimed at the destruction of any of the rights and freedoms” set out in the Convention. The EAT noted that forcible deportation of Muslims from the United Kingdom would undoubtedly amount to the destruction of their Convention rights. The language used by the Claimant fell within the grave forms of “hate speech” which are not protected under Equality Act 2010.
The EAT held that, whilst the threshold for protection under the Convention, and therefore under Equality Act 2010, is low, the tribunal was right to find that the Claimant’s beliefs did not pass that threshold.
Recruitment decision made based on who would ‘fit in’ with the team found to be discriminatory
Employers need to be able to demonstrate that decisions on recruitment have been made fairly, based on criteria which have been applied to all applicants. Allowing subjectivity to creep in risks any decision taken being challenged as discriminatory.
This happened in the recent case of James & Saine v London & Quadrant Housing Trust. The Respondent advertised three vacancies for leadership positions. There were six internal candidates, three were white and three were black (and/or black/white mixed). The Respondent appointed two white candidates. The two claimants (who were both black) were not appointed. The Respondent decided to re-advertise the third vacancy externally despite having found that that the Claimants were not ‘not appointable’ to it. The Claimants claimed that the decision not to appoint them was direct race discrimination. The tribunal agreed. The Respondent based its decision on who to appoint on a subjective view of who would ‘fit in’, rather than objectively considering qualifications and suitability for the job. The tribunal stated, “basing recruitment decisions on subjective views, or gut feelings, increases the risk of stereotypes and unconscious bias coming into play”.
The oversight was a costly one for the Respondent, who ended up paying out £95,000 in compensation to the two claimants.
This case reminds us that recruitment processes must be free from discrimination and minimise the risk of unconscious bias. Recruitment and interview processes should be reviewed to make sure that they stand up to scrutiny and are based on an objective assessment of suitability. If you have any queries in regard to your recruitment and selection processes, please contact us.
And finally, changes are afoot in employment legislation, if you haven’t already read our blog on the new Employments Rights Bill – make sure that you are signed up to our newsletter to receive our latest updates, blogs and webinars!
