Employment Law Changes 2020

The Government intends to introduce a new Employment Bill which will include some changes already anticipated by the Good Work Plan. The Employment Bill will provide for:

  • The right to request a more stable and predictable contract after 26 weeks’ service;
  • The right to neonatal leave and pay for parents of premature or sick babies;
  • A single market enforcement agency to better ensure that vulnerable workers are aware of and can exercise their rights and which supports business compliance;
  • The extension of the period of redundancy protection from the point an employee notifies her employer of her pregnancy until six months after the end of maternity leave;
  • A week’s leave for unpaid carers;
  • Making flexible working the default right where employers do not have a good reason not to allow it;
  • Tips to be received by workers in full; and
  • The Government will also be bringing forward detailed proposals next year following its “health is everyone’s business” consultation. These will include measures to encourage employers to play their role in retaining disabled people and people with health conditions in the workplace. The Government intends to reduce the disability employment gap and to reach the existing goal of an increase of one million disabled people in work between 2017 and 2027
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Severe drop in recruitment activity during March

Quickest drops in permanent placements and temp billings since early-2009

Staff vacancies decline

Slower increases in pay for both permanent and temp staff

The coronavirus pandemic has put the labour market on pause. It does mean massive disruption in the short term, but we need to remember that this has to be done in order to protect businesses and save lives.
What we should be concerned about is how we stop that short-term disruption becoming longer-term economic depression. To do that we need to maintain employment levels as much as possible. Businesses in high-cashflow sectors like recruitment and hospitality need to be able to access government support much more quickly than they currently can, or they will not be able to afford to furlough their workers. This and other measures like government covering statutory sick pay for all firms will help people and firms to stay afloat now, and help the economy bounce back once the crisis is over.

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Furlough – what does it mean?

From relative obscurity just weeks ago, the term furlough has suddenly dominated the public lexicon. You’ll see it splashed all over newspaper headlines, printed across Government updates and probably mentioned in workplace conversations, but what does this weird term actually mean?

In early March, the Government and specifically Chancellor Rishi Sunak, announced that it would put in place measures to ensure that the vast rate of widespread redundancies across the UK were halted as the country dealt with the initial wave of infections due to coronavirus. The solution that the Government devised essentially replaced the concept of redundancy with a ‘furlough’ – AKA the ability to keep staff on the payroll, yet for them to take extended leave as the company’s business shrinks.

The Government confirmed that for all businesses who forgo redundancies and instead place staff on furlough, it would pay up to 80% of staff wages, to a total of £2,500 per individual per month. This amount would be payable through normal monthly instalments and could be applied for via HMRC.

So essentially, furlough is the process of allowing staff to remain employed at your business yet take an extended leave of absence due to turbulent business. Workers who are on furlough aren’t allowed to actually work yet will currently receive up to 80% of their normal pay – with the option to top up the extra 20% in the hands of the employer.

The scheme will initially run for at least three months, from 1 March 2020, with all UK businesses eligible, and will be extended if necessary.

To access the Coronavirus Job Retention Scheme, employers will need to take the following steps:

Designate affected employees as ‘furloughed workers,’ and notify your employees of this change – changing the status of employees remains subject to existing employment law and, depending on the employment contract, may be subject to negotiation.

Submit information to HMRC about the employees that have been furloughed and their earnings through a new online portal (HMRC will set out further details on the information required).

HMRC is working urgently to set up a system for reimbursement, and existing systems are not set up to facilitate payments to employers. If your business needs short term cash flow support, you may be eligible for a Coronavirus Business Interruption Loan.

This applies only to furloughed employees (ie are not performing any work for their employer) and not those whose hours and pay reduces. An employee must be furloughed for a minimum of three weeks, and that compensation can only be claimed for employees who were on payroll on February 28.

The guidance flags the fact that the scheme does not give a ‘right’ to put an employee on furlough. If employers do not have a contractual right to furlough, they will need employee agreement, and the guidance notes that depending on the numbers of employees impacted that might require a collective consultation (typically of 30 days or more). In circumstances where businesses are facing dire cash flow situations the need to address these contractual issues will lessen the value of the scheme.

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Coronavirus: Your Employment-related Questions Answered

What are our obligations from a health and safety perspective in relation to our staff?

Employers have a duty to ensure the health and safety of their employees and non-employees (contractors, members of the public, etc.) so far as is reasonably practicable. This would include taking reasonable steps to control the spread of the coronavirus at sites under the control of the employer. Employers should carry out a risk assessment and then implement reasonably practicable control measures to either eliminate or mitigate the coronavirus hazard. From a practical perspective, we would recommend that employers:

  1. Ensure staff are aware of the symptoms and the latest advice on how to minimise the risk of infection.
  2. Implement a reporting procedure for anyone with symptoms.
  3. Implement a reporting procedure for individuals who have recently visited “high-risk” areas, such as China, Northern Italy, etc. This may mean that staff have to “self-isolate” if they have returned from a high-risk area (see below for further guidance).
  4. Make individuals aware of the latest government guidance.
  5. Ensure any control measures identified by the risk assessment are aligned with the government’s advice. Employees are under a legal obligation to cooperate with their employer and other duty holders to enable them to comply with health and safety legislation.

Should we place restrictions on our staff in terms of work-related international travel?

Today the 16th March the Foreign and Commonwealth Office (FCO) is advising against all and all but essential travel to some countries, cities and regions. You must check the travel advice to the country you are travelling to …

In what circumstances are our staff required to stay away from work?

Again, the position is changing quite quickly, but the latest advice from the FCO is that anyone who has returned to the UK from the certain areas should “self-quarantine” and stay away from work, even if they are not displaying any symptoms. This information is being updated on an ongoing basis, so employers should ensure they monitor the situation.

Other employees should only stay at home if they have travelled to certain countries (see the latest advice from the FCO as this list is changing) and then develop symptoms of a cough, fever or shortness of breath, however mild. As a general rule, therefore, employers should not require staff to stay away from work simply because they have travelled to these countries. Taking any steps to force them to do so (even if under pressure from other members of staff) may amount to a breach of the implied term of trust and confidence. Employees may be willing to work from home for a period of time (the incubation period for the virus is estimated to be between two and 14 days), but employers should be very careful about how they approach such conversations so as not to put themselves at risk of a claim.

Do we have to pay an employee if they self-isolate?

Clearly, if a member of staff is actually unwell with the coronavirus, you should pay them in accordance with your usual sick pay/leave arrangements. 

The position becomes less clear if they are self-isolating in line with the latest government guidance, but are not (outwardly, at any rate) actually unwell. 

We understand that the Health Secretary, Matt Hancock, told MPs: “self-isolation on medical advice is considered sickness for employment purposes. That is a very important message for employers and those who can go home and self-isolate as if they were sick, because it is for medical reasons”.  However, it is not clear on what basis he has reached this conclusion.  It may be a loose reference to the fact there are provisions buried in the legislation under which individuals can be deemed to be sick for SSP purposes in certain circumstances.  Further clarity from the government would be welcome.

Employers should obviously check their own policies/ contracts concerning pay, but it would be unusual for employees to have a contractual right to pay/sick pay in these circumstances. Some employers may choose to treat such periods of absence as sickness for their own company sick pay purposes.

Acas has recommended in its guidance on the coronavirus that employers treat such leave as sick leave and follow their usual sick pay policy or agree for the time to be taken as holiday. 

It would clearly be best practice to pay employees their normal pay in these circumstances and we note that some large employers have already adopted this approach, not least because otherwise employees may try to come into work, putting others at risk. We would, however, recommend that employers take specific advice on this issue before agreeing to anything, as there may be circumstances where it is not appropriate to adopt/continue with this approach.  It may also lead to ‘copycat’ absences once employees are aware that company policy is that they will be paid as normal when absent due to self-isolation. 

If an employee is able to work from home, this makes things simpler, as the employer should allow this and continue to pay the employee as normal. We recognise that this will not be practicable for all employees.

How should we deal with a member of staff who refuses to come to work because they are concerned about the risk of infection?

In light of the current threat level in the UK, it is unlikely to be reasonable for an employee to refuse to come to work on this basis, especially if there have been no cases in their specific workplace. Clearly, however, an employer should take steps to understand an employee’s concerns before taking any action, especially if they may be at greater risk from developing the coronavirus. In light of the current media coverage of the coronavirus and stories about whole offices being sent home, it is not surprising that some individuals are worried about contracting the virus and are keen to take steps to minimise the risk of infection.

If you are communicating with your staff about the virus and what steps the company is taking to protect the health and safety of its staff, the risk of employees refusing to come to work is likely to be reduced. If there is some basis for their concerns, you may want to think about allowing them to work from home for a period of time, taking some annual/ unpaid leave, etc. It might also be useful to remind them of other support services you have in place, such as employee assistance programmes and wellbeing programmes.

What should we do if a member of staff is confirmed as having the virus and has recently been in the workplace?

The current advice from the government is that, in such circumstances, the employer should contact the Public Health England local health protection team to discuss the situation, identify people who have been in contact with the individual and discuss any actions or precautions that should be taken. A risk assessment will be undertaken by the health protection team and advice to the company will be based on this assessment. The government says that closure of the workplace is not recommended. A knee-jerk response risks demonising the sick employee in circumstances where it may not be down to them at all.

If our staff say they want to wear face masks at work, are we entitled to say no?

In the majority of circumstances, yes. The current advice from the government is that employees are not recommended to wear facemasks to protect against the virus. It recommends that facemasks are only required to be worn by “symptomatic” individuals (as advised by a healthcare worker) to reduce the risk of transmitting the infection to other people. Similarly, the latest advice from the World Health Organization is that people only need to wear facemasks if they are treating someone who is infected with the coronavirus.

If staff are concerned about contracting the virus, they should follow normal best practice about reducing the risk of infection, e.g. washing hands frequently, disposing of tissues, etc.

If the situation worsens and we are considering closing one of our sites, do we have a right to lay off staff in these circumstances? Are we obliged to continue to pay them?

In certain sectors, employees’ contracts of employment or collective agreements may contain “layoff” provisions, which give employers a contractual right not to provide employees with work for a short period of time, usually as a way of avoiding redundancies. Employees can be laid off without pay where there is a contractual term to this effect, but they may be entitled to a statutory guarantee payment from the employer.

Employers may be able to rely on these provisions in certain circumstances, but as employees may bring claims if layoffs are not handled correctly, we would recommend that employers take specific advice on this issue before requiring staff to stay away from work, especially if they wish to be able to do so without paying them. Acas has produced guidance for employers on layoffs and short-time working.

Can we prevent staff from going on holiday to high-risk areas?

It may be possible to turn down a holiday request by issuing a counter-notice in accordance with the provisions of the Working Time Regulations 1998, but a better (and less antagonistic) approach at this stage may be to remind staff about the latest government guidance on high-risk areas and the circumstances in which they would be required to self-isolate on return to the UK, possibly without pay. Employers should ensure they do not do anything that could give employees the right to bring a constructive dismissal/ discrimination claim, etc., but they can certainly encourage staff to insure against holiday cancellation on these grounds.

Practical Tips for Employers

  1. Stay up to date with the latest guidance – The situation is obviously changing quite quickly, so employers should ensure they stay up to date with the latest government guidance and advice from public health agencies. Links to key websites are provided below:
    1. The government’s guidance for employers and businesses. This contains useful advice for employers in providing advice to staff on the virus, what to do if someone with the virus has been in a workplace setting, etc.
    2. Acas has published some guidance for employers on what they should do to protect the health and safety of their staff.
    3. The latest travel advice from the FCO.
    4. The latest advice from the NHS.
    5. Employers should review their approach in light of the latest guidance.
  • Avoid knee-jerk reactions – Employers should ensure they adopt a proportionate response to the coronavirus outbreak, based on the current level of risk in the UK, the nature of their business, available medical opinion, etc. Knee-jerk reactions could result in grievances and, at worst, claims.
  • Communicate with your staff – While the risk to health in the UK is currently still low to moderate, the extensive media coverage of the coronavirus is making many people concerned about the risks, especially if they are more vulnerable to infection, e.g. the elderly and those with certain health conditions. Employers should, therefore, ensure they are communicating with their staff about the virus, letting them know what they can do to protect themselves against the risk of infection, together with the steps the company is taking to deal with the risk, e.g. suspending business travel to China, etc. Employers should clearly be careful about the tone of their communications to avoid any unnecessary panic.
  • Have contingency plans in place – It would be sensible to review your business continuity plan to ensure you know what to do if the threat level increases. In addition, ensure that you have up-to-date contact details for your staff, emergency contact details, etc. Consider what you can do in advance to facilitate home working and to maintain key trading functions.
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Reduce stress at work and prevent burnout – a psychologist explains how

How did those new year’s resolutions work out for you? Old habits will have already returned for many – you’re not alone if you’ve already stopped using that new gym membership. Similarly, you’re in good company if 2020 is already stressing you out.

Stress, and more chronic exhaustion such as burnout, is commonplace within the modern workplace. People are sinking under the pressure of an attendance culture that glorifies being present at work at the expense of their health. But why exactly does this happen and what can you do to prevent it?

Presenteeist cultures, which see employees working longer hours, have been linked to higher rates of burnout. This is the opposite of absenteeism. People attend work when sick, or even overwork, and it is a habit that is more common than we think. Employees feel they’re unable to challenge this culture because they see everyone else doing the same thing.

People that go to work when ill or work longer hours than expected often work at less than their full capacity. Studies show this results in a decline in productivity.


Read more: Long hours at the office could be killing you – the case for a shorter working week


One study in the Netherlands looking at a variety of jobs found that presenteeism may appear to be profitable for companies at first because of the reduced absence of employees. But in the long term, presenteeism resulted in higher levels of sickness and absenteeism later on.

Other studies have found that presenteeism can cause a decline in productivity in the individual employee by at least one third and is more costly to the employer than its counterpart, absenteeism. It is also what makes employees sick.

The World Health Organisation officially classifies burnout as an “occupational phenomenon”. It is defined as “a syndrome conceptualised as resulting from chronic workplace stress that has not been successfully managed”. And it is characterised by feelings of energy depletion or exhaustion, negative and cynical feelings towards your job, and a decline in performance.

Starting at the top

Tackling burnout is the responsibility of both organisations and their employees. If improving your health is a priority for you, your work health plays a crucial part in this – both physically and mentally.

Leaders need to lead by example. There is a trickle-down effect in leadership where subordinates copy those above them. They don’t want to appear weak and feel they need to push themselves more. If leaders start taking lunch breaks, going for a walk in the middle of the day, and leaving at a reasonable hour, that sets a good example to their team.

If you’re a manager and you see more and more presenteeist behaviour, shame culture could be affecting your organisation. Consider tackling this head on. Provide fruit, encourage walks outside and tell your staff to leave on time. These are just some of the small changes you can make to help create a healthier, happier workplace. If you can, get workplace wellness consultants to run workshops for you and your team.

Health starts at home

If you’re an employee, you shouldn’t expect your boss to solely be responsible for your workplace wellbeing. You also need to make changes yourself. There’s no shame in returning to those new year’s resolutions you set back in January.

Here are some tips to relieve your stress and lower your chances of burnout:

Pick a priority. Write down exactly what you want to happen this year. Are you looking for a career change or a promotion? Do you want to prioritise your life outside of work? Once you’ve defined what you want, you can start making small changes to work towards this.

Set some goals. Once you have established exactly what you would like to achieve, set some monthly objectives. Work at a pace that suits you. Achieving smaller goals can result in a dopamine boost that will increase your sense of accomplishment and motivation.

Get better sleep. Prioritising rest and improving your sleep hygiene will boost your immune system. Getting disciplined about logging off electronic devices one to two hours ahead of going to sleep at night will also improve the quality of your sleep.


Read more: How a lack of sleep affects your brain – and personality


Get more exercise. If you’re in a sedentary job, get out more. Taking a lunch break can help get the mental clarity needed to be productive and accomplish more challenging tasks. You will also avoid the afternoon slump.

Help others around you. Research shows that behaviour like supporting others and giving positive feedback to colleagues can help reduce your own stress levels and the effect that your stress has on your mental health.

Reducing stress at work and mitigating the effect it has on you is down to a mix of physical and mental pursuits. It’s everyone’s responsibility

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Changes to UK employment law 2020

What are the changes for UK employment law in 2020?

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In this article, Sean Dempsey and Richard Lister of UK law firm, Lewis Silkin, take a look at what’s coming up in UK employment law in 2020

Lewis Silkin is the UK member firm of Ius Laboris, an HR and employment law firm alliance.

Looking ahead to 2020, various Good Work Plan reforms are coming into effect in April and the Government is planning to introduce a new Employment Bill, which will pave the way for a number of further employment law reforms. It is clear that the Government’s main priority is ‘getting Brexit done’, but we can expect several employment law reforms to be progressed during the course of this year, many of which are to be included in the proposed new Employment Bill.

Brexit impact on employment law

The prime minister has brought the Withdrawal Agreement Bill back to Parliament, and expects MPs to ratify it prior to the UK leaving the EU on 31 January 2020. The Government has, at least for the time being, ruled out extending the transition period beyond 31 December 2020. The Conservative manifesto contained no detail about long-term plans for employment law, though did include a pledge to ensure high standards of worker’s rights. For more information about the implications of the current divorce deal, and the scope for long-term divergence from the EU on employment rights, see our Brexit portal.

New IR35 rules

Changes to the operation of IR35 regime are due to take effect from 6 April 2020. Private-sector businesses engaging contractors who supply their services personally via an intermediary (e.g. a personal service company) will become responsible for determining whether IR35 is applicable. If the business considers IR35 applies, the person paying the intermediary will be responsible for operating PAYE and national insurance on the fees it pays.

Companies affected should urgently prepare for these important changes by, for example: auditing their labour supply chain to identify contractors using intermediaries; deciding on a methodology for assessing their status; and reviewing their onboarding process and documentation for contractors going forward. Before the general election, the Chancellor Sajid Javid said there would be a review of the proposed IR35 changes to ensure they were ‘right to take forward’. It seems more likely than not the reforms will proceed in April, so it remains sensible to continue preparations.

Written statements

One of several reforms being implemented from the Government’s Good Work Plan is a revamp of the rules requiring employers to supply staff with a written statement of key particulars of their employment. From 6 April 2020, statements will have to be provided to those with ‘worker’ status in addition to employees, by day one of employment. More information will need to be set out in the statement, including details of the full benefit and remuneration package. Many employers are likely to be recruiting for April starters, so now is the time to start reviewing and amending their standard documentation.

Agency workers

The law on agency workers is also changing in April. When the UK first implemented the EU Agency Workers Directive, it enacted the so-called ‘Swedish Derogation’, which provides that certain agency workers are not covered by the principle of equal treatment. This is being abolished with effect from 6 April 2020. Businesses will need to decide what to do about any agency workers on Swedish Derogation contracts and, where appropriate, migrate them onto standard agency contracts or take them on as direct hires.

Holiday pay

The reference period for calculating holiday pay is increasing from 12 weeks to 52 weeks on 6 April 2020. This change may create practical problems in relation to people who work intermittently for just some weeks of the year. Employers should review their current approach to calculation and identify any changes required, and perhaps conduct a dry run to assess any cost impact.

Information and consultation

The final April 2020 Good Work change is a reduction in the threshold for demanding information and consultation arrangements under the Information and Consultation of Employees Regulations 2004 from 10% to just 2% of employees.

Termination payments

After significant changes to the tax treatment of termination payments were introduced in April 2018, a related requirement for employers to pay employer NICs on any part of an ex gratia termination payment exceeding GBP 30,000 was put on hold. This change will now come in on 6 April 2020, making termination payments more expensive.

CEO pay ratio reporting

The first reports will be due this year under the new legislative regime requiring directors of UK-listed companies with 250 or more employees to report annually on the difference in pay between their CEO and average workers.

Parental Bereavement (Pay and Leave) Act 2018

A new right to parental bereavement leave, giving parents two weeks’ paid leave if they lose a child under 18, is expected to come into force sometime this year. Regulations setting out details of how the right will operate are still awaited.

Discrimination

The Government has promised to implement a planned reform to provide priority access to redeployment opportunities for pregnant women and new parents in a redundancy situation. The new Employment Bill will include provisions to implement these new rights.

Regulation of NDAs

The Government is expected to bring forward legislation introducing new restrictions on confidentiality clauses in employment contracts and settlement agreements. This follows the publication of a consultation response on the issue last July. There is no draft legislation yet and the implementation date is unknown.

Family and carers’ rights

The Government will be taking forward plans to allow parents to take extended leave for neonatal care (following a consultation published last July). The Employment Bill will also provide for a new right for carers to take a week’s leave each year. The Conservative manifesto said they would look at ways to make it easier for fathers to take paternity leave, but no further details have been released.

Making flexible working the default

The Government intends to encourage flexible working arrangements and consult about making them the default unless employers have a good reason otherwise. Details are not yet clear, but the plans could go further than the proposals currently under consultation that would require employers to say if flexible working is available in job adverts and publish their flexible working policies.

Employment status and protections

Despite the unresolved issue of employment status (see above), the Conservative manifesto did promise that workers would gain the right to request a more predictable working contract. This is something which had already been promised in the Good Work Plan, and forms part of the requirements of the EU Transparent and Predictable Working Conditions Directive.

The right to a more predictable working contract will form part of the new Employment Bill. The manifesto also mentioned other ‘reasonable protections’, which may refer to rights to reasonable notice of work schedules and compensation for shift cancellation, which are already under consultation.

Staff tips

The new Employment Bill will provide for legislation requiring employers to pass on all tips. The Government also plans to introduce a new Statutory Code of Practice to ensure that tips are distributed fairly and transparently.

New state enforcement body

The Conservative manifesto also pledged to create a new state enforcement body to tackle non-compliance in the labour market, following a consultation published last year.

The plan outlined in the consultation was to bring together the existing patchwork of enforcement under the remit of a single body, and then expand its remit to cover holiday pay for vulnerable workers and umbrella companies operating in the agency workers sector. The Government is likely to focus on targeting the most exploitative employers.

Upcoming cases in 2020.

Important employment cases to be decided this year include the following:

  1. Data protection

The case of Morrison Supermarkets plc v Various claimants was heard by the SC last November and the judgment is expected soon. Morrisons is appealing against the CA’s ruling that it was liable for the wrongful disclosure of payroll data on around 10,000 staff by an aggrieved employee.

2. Minimum wage

In February, the SC is due to hear Royal Mencap Society v Tomlinson-Blake, a case of huge significance for the care sector. The CA decided that care workers carrying out ‘sleep-in’ shifts were not entitled to the national minimum wage for the whole shift, but only when they are required to be awake and working.

3. Employment status

In Uber BV v Aslam and others, a case of major interest for the gig economy, the CA upheld by a majority the finding that drivers engaged by Uber are workers rather than self-employed, whenever they are signed into the relevant app and ready to work. The SC is scheduled to hear Uber’s appeal in July.

4. Equal pay

Asda Stores Ltd v Brierley (see here) is likely to be decided by the SC this year. A hearing date for Asda’s appeal is awaited.

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Emails Outside Work..are they illegal?

It is common for many employees to send, read and reply to work emails at all hours of the day and night, including weekends. This change in work culture developed in recent decades and has accelerated with the advent of smartphones. But is this a breach of employment law? The short answer is that ‘it depends’ and we need some test cases to clarify the situation, not least in the UK.

Some workplaces have a culture of long working hours and it can be difficult for an individual employee to go against it. The contract may refer to a 40-hour week but the reality may be very different. Smartphones and other digital devices have contributed to a culture of ‘digital presenteeism’.

Staff may feel that, if they don’t keep up with the always-on culture, their job may not be safe. It doesn’t help when senior people talk up their own commitment to long hours. Perhaps it made some workers at the University of Cambridge uncomfortable recently when Professor Mary Beard tweeted that she works 100 hours a week, for instance.

The EU Working Time Directive

The employment relationship is contractual so, in principle, there is freedom to contract as both parties see fit. But many regulations limit this freedom, usually to redress a perceived imbalance in the bargaining power between employers and employees.

The EU Working Time Directive, introduced in 1993 and revised in 2003, specifies that an employee’s average weekly working time should not exceed 48 hours. It also contains requirements on daily rest periods, weekly rest periods and annual holidays. Member states can decide that aspects of the working-time rules do not apply to workers who decide their own working hours.

The directive was grounded on principles of health and safety at work. It is obviously unsafe for workers, such as drivers or medical staff, to have long working hours, as they are more likely to make a mistake if they are tired. But long working hours are unsafe for all workers, as they may contribute to stress, burnout, fewer opportunities for exercise, poor diet and in some cases heart disease.

In the case of employees who work to a set schedule, perhaps with ‘clocking in and out’ systems, it is relatively easy to check whether the 48-hour limit is being breached. Many employers do not keep records of hours worked by salaried employees, however.

In a recent case brought from Spain — Deutsche Bank (2019) — the European Court of Justice held that to satisfy the Working Time Directive, EU member states must require employers to set up an objective, reliable and accessible system so that each worker’s daily working hours can be measured. One implication might be that national laws would require employers to keep more detailed records, thus potentially drawing attention to after-hours time spent dealing with emails.

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Job Market December 2019..  KEY FINDINGS

  • Permanent placements continue to fall

 

  • Permanent vacancy growth stuck at decade-low

 

  • Softer increases in starting pay

 

Permanent placements decline at quickest rate since June

The seasonally adjusted Permanent Placements Index signalled a ninth successive monthly drop in permanent staff appointments across the South of England in November. There were numerous reports that employers were holding off or cancelling hiring plans due to political and economic uncertainty. Furthermore, the rate of reduction quickened to the most marked for five months and was solid overall. Permanent placements meanwhile fell only modestly at the national level.

 

Fastest reduction in permanent labour supply for five months

The number of people available to fill permanent job roles in the South of England fell further in November. The rate of deterioration accelerated to the steepest since June, and remained much quicker than the series average. According to anecdotal evidence, uncertainty stemming from the upcoming election and Brexit had deterred many people from seeking out new roles. The reduction in permanent candidate numbers also outpaced the UK-wide average.

 

Starting salaries rise at slowest rate for over three years

Recruitment consultancies in the South of England signalled a further increase in salaries awarded to permanent new joiners in November. Though still sharp overall, the rate of growth was the least marked since August 2016. Higher starting salaries were widely associated with candidate shortages and efforts to attract skilled workers. A softer rate of permanent pay growth was also seen at the UK level.

 

FOR THE UK IN GENERAL

Candidate availability

Permanent candidate availability continued to deteriorate across the UK in November, with the pace of decline accelerating to the fastest for five months and remaining marked overall. The reduction was driven by falls across all of the four monitored English regions, with the South of England posting the fastest rate of contraction. The North of England reported the softest deterioration, albeit one that was sharp nonetheless.

Similar to the trend for permanent availability, the supply of temporary candidates fell at the UK level in November, with the pace of decline accelerating from October to a solid rate overall. Of the four monitored English regions, the Midlands reported the steepest rate of reduction. Meanwhile, the North of England bucked the overall downward trend, and registered a modest increase in temporary candidate supply.

Pay Pressures   

Permanent starting salaries across the UK rose in November, as has been the case in every month since May 2012. The latest increase was solid, albeit the slowest for almost three years. All of the four monitored English regions reported a rise in permanent starters’ pay, with the rate of salary inflation most marked in the North of England.

Meanwhile, November data highlighted a further increase in average hourly pay for temporary workers. The rate of wage inflation eased, however, and was the slowest for three years. The South of England recorded the strongest rate of pay growth of the four monitored English regions. The weakest increase was meanwhile seen in the North of England.

 

Commentary

The jobs market in the South appears to have caught a winter cold. A decline in hires for permanent and temporary positions points to a business community that is a little under the weather. Political and economic clarity will be the perfect tonic for employers and address the lethargy that is holding back new roles being created and stopping job seekers from considering new opportunities.

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UK employment rights in a no-deal Brexit

Introduction

What might a no-deal Brexit mean for UK employment rights? What could employers do now to prepare? And what might the future hold in a no-deal scenario?

Prime Minister Boris Johnson is clear that he would be prepared to leave the European Union without a deal if necessary and the current legislation commits the United Kingdom to leaving the European Union at 11:00pm on 31 October 2019. Thus, it seems like a good time to revisit the employment law implications of a no-deal Brexit.

What can employers do now to prepare for a no-deal scenario?

European works councils

Employers must have pre-designated their new representative agent if their European works council is currently located in the United Kingdom. If the European works council is (or will become) located in another EU country, employers must decide what to do about their existing UK representatives after Brexit (for further details please see “European Commission confirms its views on European works councils and a no-deal Brexit“). Employers that are currently negotiating a European works council agreement or have a European works council operating under the default subsidiary requirements should consider relocating their arrangements now if they have not done so already.

Data protection

If a no-deal Brexit approaches, employers may need to take steps to protect data flows from the United Kingdom to the European Union.

Impact on business

There are certain legal requirements that employers should contemplate if they are considering restructuring or relocating after Brexit. The key point is that employers may need to consult on the business case for closure before any decision to close a business is taken. Employees should also be offered the opportunity to move with the business if it is relocating, subject to them meeting any relevant language, immigration or qualification requirements.

Following a no-deal Brexit – what would it mean?

Employment law

In the event of a no-deal Brexit, the European Union (Withdrawal) Act 2018 will convert all EU employment law as it stands before Brexit into UK law. The Employment Rights (Amendment) (EU Exit) Regulations 2019 will make some small technical changes and introduce new provisions intended to preserve UK-located European works councils (although it has been argued that the European works council arrangements do not actually work) but, apart from the changes made by those regulations, employment law will remain the same in the immediate term (for further details please see “Will Brexit frustrate your European works council?“).

Business travel to EEA and Switzerland

The rules for British citizens travelling to Ireland will not change and they will be allowed to undertake any activity without restriction. After Brexit, British citizens travelling to the other EEA countries or Switzerland will be exempt from visa requirements for up to 90 days in a 180-day period. This is for visits only, including for attending business meetings. However, British citizens will be unable to undertake paid work, so employees must understand the scope of the proposed activities on each trip and obtain any required work permissions if these go beyond the activities allowed for visitors. It will also be important to calculate the time spent in the Schengen area on a rolling basis to ensure that the 90-day maximum stay is not exceeded. British citizens will also need to have a passport which is valid for at least six months from the time that they enter the European Union. Note that some British passports are issued for more than 10 years in total but only the first 10 years of validity can be counted towards this six-month requirement. The government has produced a calculator that people can use to check if they have enough time left on their passport to cover a visit.

Business travel to United Kingdom

If the British government proceeds with its original plan to bring in new primary legislation to end the free movement of EEA and Swiss nationals to the United Kingdom, there is likely to be a short period after a no-deal Brexit in which free movement will still apply. However, recent press reports suggest that the government may seek to end free movement using secondary legislation. It is likely this will ultimately prove to be unfeasible. However, if the government is successful in using secondary legislation, it could mean that free movement will end on exit day. After this, Irish nationals will continue to undertake business travel to the United Kingdom without restriction due to the common travel area arrangements. The arrangements for EEA or Swiss citizens arriving in the United Kingdom between the date that free movement ends and 31 December 2020 are currently unknown. The government previously announced that they would be able to enter visa-free for up to three months and would be allowed to undertake any activities without restriction; however, this plan has now been scrapped and its replacement is yet to be announced.

What would a no-deal future look like?

In the longer term, there are lots of potential employment implications for which employers should prepare.

Possible divergence from ECJ case law

Pre-Brexit decisions of the European Court of Justice (ECJ) will remain binding on most UK tribunals and courts, but need not be followed by the Supreme Court. New ECJ decisions will not be binding on any court or tribunal, although they could be considered if relevant. Overall, the UK courts are likely to continue to respect most ECJ rulings, as long as UK and EU legislation remain the same.

No new directives

The United Kingdom would not be required to adopt the Transparent and Predictable Working Conditions Directive, the Work Life Balance Directive, the Whistleblower Directive or any future EU directives. However, the United Kingdom:

  • has already committed to implementing some aspects of the Transparent and Predictable Working Conditions Directive;
  • is one of the few EU countries to already have whistleblower protection; and
  • already provides some of the rights established under the new Work Life Balance Directive.

Thus, while differences in employment law could open relatively soon, they will be quite small.

Longer-term changes to employment law

Larger gaps will open if the UK government dismantles EU-derived employment laws after Brexit. Theresa May was always emphatic that her government would look to enhance workers’ rights after Brexit, not reduce them. However, other prime ministers may take a different stance.

Boris Johnson is reported to be keen to renounce the Working Time Directive. He gave evidence to a select committee that it has proved too expensive to implement in the United Kingdom and it would be surprising, given the strength of his previous statements, if his government made no changes to EU-derived working time laws. However, it is hard to imagine any modern UK government ending all rights to paid holiday. Instead, the United Kingdom can reasonably expect the scrapping of EU rules on working time limits and record-keeping requirements, but the retention of some rights to paid holiday (possibly paid at the rate of basic pay only). Similarly, some rights provided by the Agency Workers Directive could be abolished (eg, the right to pay parity after 12 weeks), but limited agency worker rights are likely to remain.

In the longer term, if a Conservative government remains in power, the country might also expect to see collective redundancy consultation being abolished or made less onerous and the restrictions on changing terms after a Transfer of Undertakings (Protection of Employment) (TUPE) being lifted (although TUPE is unlikely to be scrapped). Previous governments have explored whether discrimination awards could be capped (eg, at one or two years’ pay) but this was problematic under EU law. Capping discrimination awards is unlikely in the short term, not least because of the #metoo movement, but it could come back on the table later.

Ultimately, the United Kingdom faces the same challenges as any other modern economy: how to regulate the increasing volume of platform and contingent working and respond to the impact of demographic and technological change on the workplace. The United Kingdom’s withdrawal from the European Union will mean that the United Kingdom will need to find its own regulatory solutions to these challenges.

Discrimination rights

UK law prohibits workplace discrimination on grounds of nationality and national origin. In the (hopefully unlikely) event of any EU citizen experiencing abuse or harassment in the workplace, employers must be ready to respond under their anti-harassment policies. Employers may want to check that they already cover nationality as well as race.

Interestingly, UK equality legislation goes further than the EU minimum requirements in explicitly preventing nationality discrimination in the workplace. This is one of a number of instances where UK law actually provides more rights than the EU minimum and illustrates that, although the United Kingdom may dismantle some EU-derived employment rights following a no-deal Brexit, there are still likely to be areas of employment law where it goes further than the European Union.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide

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Employment Law the facts…

Employment law regulates the relationship between employers and their employees. It covers every aspect of employment from the hiring process through to the exit process, ensuring every individual is treated fairly.

Employment law is potentially full of pitfalls. Getting it right means keeping up with developments and really thinking about your policies before carefully implementing them. Getting it wrong can be extremely expensive.

There are seven areas of employment law likely to affect you. Here are the main things to be aware of in each area.

1) Recruitment

If you recruit the right people, you’ll have fewer problems to deal with later. We all make instant judgments about people and may even decide about a candidate’s suitability before they’ve said a word. Train interviewers to be aware of, and avoid, unconscious bias: ask standardised questions to give each candidate an equal chance. You must also check they have the right to work in the UK. Use probationary periods effectively and have regular reviews, if there are early signs the employee is likely to be unsuitable you can usually dismiss without risk.

2) Hours, leave and pay

You must adhere to the Working Time Regulations regarding working hours, rest breaks and paid annual leave. Ensure employees are paid at least the minimum wage, with everyone receiving a wage slip, and you must operate PAYE for tax and National Insurance contributions.

3) Employee rights

All employees should receive a statement setting out the main terms and conditions of their employment. Plus, certain ‘rights’ will be implied. There must be a relationship of ‘trust and confidence’ between employer and employees; a reasonable amount of privacy, the right to belong (or not) to a trade union, and the entitlement to ‘blow the whistle’ on employer wrongdoing; employers must provide a secure, safe and healthy working environment, and most employees are entitled to keep their jobs if the business changes hands. Everyone has the right to ask for (but not necessarily get) flexible working after being with an employer for 26 weeks.

4) Discrimination

Underpinned by the Equality Act 2010, it’s crucial that employers get this right as they are legally responsible for discrimination and harassment by their staff. Discrimination can be direct (e.g. not employing somebody because they are gay) or indirect (applying a policy equally to everyone that disadvantages one group, e.g. irregular shifts for women who may be carers). Harassment is often dismissed as ‘just banter’, but it’s not the intention that’s the issue, it’s how it was perceived. To prevent discrimination or harassment, employers need a workplace policy, should train their staff about what is and isn’t acceptable, and take prompt action against anyone who oversteps the mark. .

5) Disciplinary and grievance

You need to have disciplinary and grievance procedures that follow the ACAS Code of Practice in place. If you’re going to dismiss someone, you’ll need a good reason and it must not be unlawful or unfair (genuine redundancy can be grounds for dismissal). You don’t necessarily have to go through the rigmarole of a series of verbal and written warnings – you can go straight to a final written warning or dismissal in serious cases.

6) Sickness

Tackling illness in the workplace can be tricky – particularly if the employee has a disability and is protected under discrimination legislation. We’ve all come across an employee who seems to have a sickness bug on Monday mornings (short, intermittent illness) or those who are off for over a month (long-term sickness). All employees should be asked to attend a back-to- work interview after any period of illness: the key thing here is, where necessary, to offer adjustments that ease people gently back into work. Not all illnesses incapacitate a person so much that they need to stay in bed, or remain at home – this is particularly true of conditions such as stress or depression.

7) Working parents

When an employee is expecting a baby or is a new parent, they have extra rights at work. An employee and their partner could be entitled to: paid time off for ante-natal care, maternity leave and pay, paternity leave and pay, shared parental leave and pay, adoption leave and pay, and unpaid time off to care for a child. These rights apply to same-sex relationships as well as opposite-sex relationships. Employees can also have a few days’ ‘unexpected emergency leave’ for domestic emergencies

Original piece written by Irwin Mitchel

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