10 minute read
Employment Law Update
EMPLOYMENT TRIBUNALS
DISMISSAL
DISCIPLINE & GRIEVANCE
DISABILITY
DATA PROTECTION
BULLYING & HARASSMENT
The changing landscape of employment law
What next?
By Alan Sutherland, Head of Employment Law, Navigator Employment Law
The pandemic has obviously changed the way we have all been working. The question now is whether this shift in working practices is permanent. For instance, I have had a number of clients contact me requesting a Hybrid Working Policy as they consider that the 5 days a week, 9-5, working from the office set up is no longer desirable for their workforce. Others, however, are keen to bring employees back to the office. This shift has also been recognised by the government and may be reflected in some proposed legislative developments. In this article I will be looking ahead to 2022 and beyond and discussing some of these changes and how they will affect employers. The government has committed to legislation to introduce a duty on employers to take reasonable steps to prevent sexual harassment. The official government response to the consultation on sexual harassment that has led to this commitment stated that as employees start to return to the office it is the perfect time to create a “fair environment” for all. It also commented that the phrase “build back better” extends to the workplace. What does this mean in practical terms? Currently employers can avoid liability for sexual harassment committed by its employees if it has taken “all reasonable steps” to prevent that harassment. However, the new proposals will impose a positive duty by forcing employers to be more proactive on this issue. This could mean that an employer faces liability for failing to tackle sexual harassment even if no incident has taken place. The focus is very much
on prevention rather than reaction. It is still uncertain if this will apply only to sexual harassment or other forms of harassment. However, it would be prudent for employers to provide training on harassment in the workplace in order to satisfy this proactive duty. This obligation will also extend to taking reasonable steps to prevent employees being sexually harassed by third parties. This will include customers or clients of the employer. This is not a completely new idea. Between 2008 and 2013 there was legislation that made employers liable for third party harassment but only if the harassment had occurred on at least two occasions. This law was repealed but there have been growing calls for this to be reinstated. Again, how an employer is supposed to successfully utilise the ‘all reasonable’ steps defence is currently unclear although the government describes this as “flexible” and “proportionate” meaning that there is likely to be a wide range of appropriate responses. Employers would be well advised to include clauses regarding harassment in third-party contracts. It may also be useful to have notices in the workplace stating that there is a zero-tolerance approach to harassment. It is unclear that imposing these duties on employers will achieve the aim of achieving a safer work environment for all employees or if the result will be extra admin and what is effectively a box ticking exercise. Additionally, a consultation is currently underway which will consider the case for extending the right to request flexible working as a day one right. This was a commitment made in the government’s manifesto in 2019. It is probable that if the consultation concludes that legislative changes are to be made that these will be included in the Employment Bill, which was announced in the Queen’s speech. Although it has not yet been confirmed some of the measures included in this bill may be in force in 2022 and 2023. Under the current rules an employee must have been employed for 26 weeks before they can make a flexible working request. The government has stressed that the aim of this proposed change is not to make flexible working the default position and it will not seek to prohibit employers from being able to refuse these requests. However, the business secretary Kwasi Kwarteng has stated that the proposals aim to make flexible working “part of the DNA of businesses” throughout the UK. One unforeseen consequence of the pandemic is that flexible working requests are, in many cases, harder to reject. Imagine a scenario where employees had been working from home, but the business owners are now seeking to have people return to the office. If an employee submits a flexible working request it may be more challenging to turn it down if the arrangement had been working successfully, or perhaps more accurately if the employer can’t show that the arrangement had been unsuccessful. It is always crucial for employers to handle these requests in an open-minded way and be mindful of the potential for discrimination. According to a survey of just under 13,000 mothers conducted by the TUC, half had a flexible working request denied or partially accepted by their employer. If the flexible working request is made to accommodate childcare arrangements or school pick ups, rejecting this request out of hand may lead to a sex discrimination claim. Similarly, if a disabled employee has found it beneficial to be able to work from home, a rejected request to continue doing so may be seen as a failure to make reasonable adjustments. Another proposed change is that if a flexible working request is denied, an alternative work arrangement needs to be suggested. Under the current rules a request can only be denied using the set statutory reasons. If the changes are implemented, it will be crucial for employers to ensure all hiring managers are very familiar with the key procedural aspects of flexible working requests. The working landscape is shifting, and employers must be ready to adapt to any changes in the law over the coming years.
Resignation
THE GREAT Resignation
THE GREAT Resignation
Should I stay or should I go? Many employees are asking this question as they seek to develop their careers in 2022. With 25% of workers planning to leave their current job in the coming weeks and months, what can HR do to attract and retain their top talent? Andy Moore discovers how practitioners can address ‘The Great Resignation’ in the New Year.
There’s something stirring within the living rooms, spare bedrooms and offices across Scotland. Since the nation went into lockdown in March 2020, workforces have adopted a new sense of perspective to examine the future path and direction of their careers.
And now, as we start 2022, the dilemma on whether to stick or up-sticks to pastures new is gaining momentum. Radically-changed working environments and values have given employees a different vision on who they would like to work for and where – and these career aspirations are being catalysed by a candidate-driven market. The EY Work Reimagined Employee Survey found that those most likely to move jobs are managers/leaders and people who work in technology or finance or as caregivers. Attitudes to job retention differ by age, with millennials twice as likely as baby boomers to quit, the survey discovered. Wendy McDougall, CEO of Glasgow-based Firefish Software, whose platform supports over 550 recruiters across the UK with vacancies and applications, says: “2021 saw a record number of employees quit their jobs. While recent data suggest a slight cooling of the jobs market, it’s still much busier going into 2022.” So what can HR do to attract and retain staff? Wendy believes a pragmatic place to start is to address the main reasons employees give for quitting: lack of growth opportunities, the desire for better benefits and more concern for their wellbeing. Given the turbulence employees have been through over nearly two years, it’s understandable that so many have reassessed their priorities in life, she reasons. “A big challenge for HR professionals has been to help organisations cope with the interruption caused by the departure of team members and the effort involved in rehiring,” Wendy continues. “Yet many HR professionals have used the opportunity to create positive outcomes by encouraging the rethinking of roles. These reassessments to fine-tune job descriptions have made vacancies better suited to the jobs market and employers’ needs.” According to a study from talent solutions company, Right Management, nearly a quarter of UK employees plan to leave their job in the next year, but over a third don’t know their next step.
Lack of support in career development goals, a written career path and insufficient pay are among the key reasons why employees seek new roles, the firm discovered. Amy Smyth, Head of Career Management, says: “The right to receive support and guidance about your career is incredibly important, especially in a time when people are unsure about their next move. Too many employers have overlooked their already significant investment in career development.” Amy believes that many employers have missed opportunities to develop and retain talented workers at a time when the global skills shortage is presenting huge challenges for businesses. The study found that employees don’t feel supported in their career development goals, with 73% of employees believing they have had sole responsibility for it. Only 55% of employers said they offer “all the tools” for career mentoring. So why is career mentoring seen as undervalued? “This could be for a whole host of reasons; perhaps employees don’t feel comfortable talking about their careers,” adds Amy. “It might also be that leaders haven’t been trained enough in their guidance. Either way, companies are failing to maximise a huge benefit, one that employees really do want.” The study found that most responders rate pay as one of the most important aspects of a job. This has created the perfect recipe for employees to feel underpaid and underappreciated in a candidate-led market, the study found. “Pay is still a number one priority for 71% of UK workers, and it’s something that will continue to be important for years to come,” Amy explains. “But we must recognise the need to create an environment in which employees can achieve more and develop their careers with their current company rather than feeling the need to go elsewhere to progress.” As for shaping people policies in 2022, Firefish Software believes that employers and HR teams can work with hiring managers to look at skills available in the talent pool. Those who adapt to the skill sets in front of them are more likely to win the battle for talent. For HR, it’s important to be clear with employers about the market in which they are operating by comparing the number of competing job listings in their sector. This will enable organisations and HR to see the live vacancies they are up against and help to manage expectations. “It’s essential to build confidence by demonstrating HR expertise and showing that you have used tools and knowledge to source candidates despite the challenges,” Wendy McDougall sums up. “During a talent shortage, the hiring process will always take more time. The key for HR teams is to be up front and give regular updates about which parts of the process are being worked on and why it’s taking longer.”
Key tips for dealing with The Great Resignation: • Nearly a quarter of UK employees plan to leave their job in the next year
• Support and guidance on careers are incredibly important
