The Coronavirus Job Retention Scheme is set to close at the end of October, and many employers will be forced to consider making redundancies

The following list highlights some important points for employees to be aware of regarding their rights in respect of redundancy.

Redundancy pay

Employees on furlough leave retain the same rights to redundancy payments.

Employees with two years’ service are entitled to a statutory redundancy payment. This amounts to 0.5, 1 or 1.5 week’s pay for each full year the employee has worked for the employer capped at 20 years, the amount dependent on the employee’s age

Employees will receive 0.5 week’s pay for each full year they were under 22, one week’s pay for each full year they were 22 or older, and 1.5 week’s pay for each full year they were 41 or older.

Notice

Employees made redundant are entitled to between one and 12 weeks’ statutory notice, dependent on the employee’s length of service. Employees may have to work out this notice period or spend it on furlough leave, or employers may pay employees in lieu of notice.

Employees may be entitled to more than the statutory notice period depending on the rights afforded to them in their contract. It is important to review any written agreements that have been made with the employer to check the contractual entitlement to notice and redundancy rights in general.

If the contractual and statutory notice periods differ, the longer notice period will apply.

Outstanding payments

Employees are entitled to outstanding payments owed including any unpaid wages, expenses, and accrued but untaken holiday. Employers can require employees to take their holiday entitlement during their notice period providing that the employer gives the requisite amount of notice – twice the amount of days as the number of days required to be taken as holiday.

Insolvency

If the employer is insolvent and has not made the payments owed, employees can apply to the Insolvency Service to claim back any outstanding payments.

Volunteering for redundancy

Employers may ask employees if they wish to volunteer for redundancy. This still classifies as a dismissal, entitling the employee to the same statutory redundancy rights as someone who didn’t volunteer.

If only a limited number of redundancies are being made and an employee was thinking about moving jobs or retiring in the near future anyway, taking voluntary redundancy may be financially beneficial if their length of service means their redundancy pay would be generous.

Suitable alternative employment

If an employer offers suitable alternative employment within the company and this is unreasonably turned down by the employee, the employee may lose their right to statutory redundancy pay.

The question of whether the job offer is suitable can be contentious, so employees should try to have open conversations with their employers to discuss any alternative job offers.

Consultation

Employees who are being made redundant have the right to be consulted either individually, or if at least 20 employees within the company are being made redundant in a 90 day period, collective consultation rules apply which affects how the consultation takes place and the minimum length of the consultation.

Employees are able to put forward comments and suggestions including alternatives to redundancy, which the employer should listen to and consider.

A failure by an employer to properly inform and consult where at least 20 employees are being made redundant may entitle an employee to a Protective Award payment from the employment tribunal.

The amount of compensation awarded is at the tribunal’s discretion and can be up to 90 days’ gross pay to each employee affected. Claims for a Protective Award must be brought within three months of the date of the last dismissal.

Time off

Employees made redundant with two years’ continuous service by the date their notice period ends are entitled to seek a reasonable amount of time off work, to look for new employment or to make arrangements for training to help find another role. Pay is limited to 40% of one week’s pay for the entire time taken off.

Right to appeal

Employees may have the right to appeal the redundancy decision by writing to their employer and setting out the reasons for appeal.

Unfair dismissal and discrimination rights

In order for a redundancy to be fair, a selection criteria must be drawn up along with a pool of employees to select from for redundancy. The employer must then engage with this process fairly and select employees based on transparent and objective criteria. Once a provisional decision has been reached, the employer must follow a fair procedure for consulting with employees over this process.

An employer also needs to show that alternatives to redundancy were properly considered and that reasonable efforts were made to find alternative employment.

Employees with two years’ service are entitled to bring a claim for unfair dismissal. A claim for unfair dismissal could be made if an employee believes they were unfairly selected for redundancy, the employer didn’t follow a fair redundancy process or if the dismissal was not genuinely for the reason of redundancy.

Discrimination claims could also arise if an employee is selected for redundancy on the basis of a protected characteristic under the Equality Act, for example, or the employee’s working pattern.

Typically, unfair dismissal claims must be brought three months less one day from the last day of employment, and discrimination claims must be brought three months less one day from the last act of discrimination complained of

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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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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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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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The exemption from disclosure for confidential employment references….

The General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA), which implemented many of its provisions, are now over a year old.  The aim of the GDPR was to increase the protection of individuals’ personal data.  Employees are better informed than ever of their data protection rights, with employers receiving an increased number of subject access requests from their employees.

Interesting, however, under the DPA, individuals are not entitled access to a confidential employment reference written about them; neither from the author of the reference i.e. the ex-employer, nor from the recipient of the reference i.e. the new or prospective employer.  In order for ex-employers to refuse disclosure (should they wish to do so), the reference should clearly state that it is confidential, intended for the attention of the recipient only and that the author does not give permission for it to be disclosed to the subject.

Under the previous Data Protection Act 1998, the exemption relating to confidential references applied only where the employee made the request to the employer that provided the reference. The employee could therefore access the reference by making a request to the employer that received the reference instead. This provision (which was considered an anomaly) was removed by the DPA.

The author of a reference owes a duty of care to both the subject of the reference and the reference recipient.  Caselaw has established that where a reference is given, the reference must in substance be true, accurate and fair, and must not give a misleading impression.  Most job offers are conditional upon receipt of satisfactory employment references.  Clearly, an unfavourable reference can harm an individual’s future employment prospects and result in the prospective employer withdrawing an offer or dismissing an employee during their probationary period. This means that the balance in the employer’s favour may be disproportionate in cases where a reference is open to challenge due to being factually incorrect, or generally giving a misleading impression. Of course, where the individual is not permitted access to a reference, they are unable to challenge its contents.  Where the individual has evidence that the ex-employer had provided a negligent reference, they could bring a claim in the county court and request that the court orders disclosure of the reference.

This statutory exemption could mean that the UK is in breach of Article 8 of the European Convention of Human Rights in respect of an individual’s qualified right to a private life, as it is questionable whether the exemption which permits the reference to be withheld is proportionate to the individual’s right to fairness and transparency regarding their personal data. It is possible that at some point, the UK courts will receive a challenge to the legislation on this basis.  However, as the law currently stands, employers can continue to rely on this exemption, which means that any request for access to personal data contained in an employment reference which is clearly stated to be confidential, is exempt from disclosure.

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Recruitment Still Strong despite Brexit…

Despite the uncertainty around Brexit, companies are still recruiting. It’s very much a candidates market at the moment and demand for workers is driving a sharp increase in starting salaries. It’s been getting harder and harder for firms to find good staff and with UK immigration policy likely to tighten, this trend isn’t going to get any easier.

Concerns about a no deal Brexit are putting a handbrake on the supply of candidates as the value of job security and stability shoot up people’s personal agendas. However, candidates who are prepared to take a chance and job hop can often bag a pay rise as a result.

Slower rise in staff appointments

Permanent placements increased at softer rates in November. Though strong, the upturn in permanent staff appointments was the second-weakest since October 2017.

Vacancy growth edges down to 25-month low

Though elevated by historical standards, the overall rate of vacancy growth edged down to the least marked for just over two years in November. This was driven by a slightly softer increase in permanent job openings…

Candidate availability continues to tighten…

The overall availability of staff continued to decline sharply in November. This was despite the rate of reduction easing to the weakest since March, helped by softer falls in the supply of both permanent and temporary candidates.

…leading to further upward pressure on pay

Tight labour market conditions and greater competition for workers led to further marked rises in pay for both permanent and temporary staff. Notably, temporary wages increased at the quickest rate since July 2007. Permanent starting salaries meanwhile rose at one of the sharpest rates seen in the past three-and-a-half years.

Permanent placement growth edges down to four-month low

November survey data signaled a twenty-eighth successive monthly increase in the number of people placed into permanent job roles. The pace of expansion remained sharp, despite softening to the second-weakest since October 2017 (after July 2018). Growth was generally linked by respondents to robust demand for staff. However, there were also reports that uncertainty linked to Brexit and candidate shortages had limited the overall upturn in placements.

Steep increases in permanent staff appointments were seen across three of the four monitored English regions, as the North of England registered only a modest rate of expansion.

 

 

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 Early Autumn market update: Starting salaries rise at fastest rate since April 2015, as candidate availability drops further..

  • Starting salaries rise sharply amid steep reduction in candidate supply
  • Permanent placements expand at slightly weaker pace
  • Vacancy growth softens to near two-year low, but remains strong

Companies generally are struggling to find the people they need to drive growth and opportunity. 

Permanent placements growth softens…

Permanent staff recruitment continued to rise at the end of the third quarter, albeit at a softer pace. Nonetheless, growth remained sharp…

…as candidate availability drops further

We have found there is continued difficulties regarding the availability of staff for the vacancies we have. Although easing since August, the rate of deterioration in permanent staff availability remained sharp.

Starting salary inflation reaches 41-month peak…

Starting salaries for people placed into permanent jobs increased at the quickest pace since April 2015 during September.

…as demand for staff remains strong

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