Brexit: 12 Law Changes HR Would Like

Welcome to this week’s HR Blast from Jaluch. At Jaluch we work with hundreds of organisations around the UK (and also further afield) supporting with both day-to-day HR and Training. So we thought it appropriate to use this Blast to put together our Top 12 Hit List of what our clients, post-Brexit, want. 

What laws and decisions cause immense frustrations? What do employers find nigh on impossible to manage? What seems inordinately unfair and overly complicated? Not all legislation is unhelpful or resented, but quite a bit is. So we asked you and this is what you said!

  1. TUPE – (Transfer of Undertakings Protection of Employment)

Not all TUPE is a problem, but…

This law gives employers virtually no flexibility. The biggest gripe is that an employer is unable to harmonise contracts after taking over another business.

The government says that it supports innovation and business growth but if you’ re a business that grows by acquisition/merger this law could mean that over the years you end up with 10 or more different groups of employees on different terms and conditions of employment. That is simply unworkable and most employers can’t afford to – and shouldn’t have to – buy staff off in order to harmonise contracts.

Why is this important? Employees on differing terms of employment create administrative confusion and that results in admin and procedural errors, impacts employee morale if groups of employees learn that other groups are on terms better than their own, and prevents a forward thinking approach being taken to employment terms and staff management.

  1. Working Time Regulations

Not all Working Time Regs are a problem, but….

Holidays – There are huge frustrations around staff being able to claim sickness whilst on holiday and the fact that this can carry over into a new holiday year.

Sickness issues present a big enough problem anyway in terms of how to manage them, but adding in the complexity of managing the sickness of those potentially out of the country on holiday and/or away from normal communications leaves employers in despair at times.

Added to which of course is the issue of whether sickness caused by one’s own wild drunken or drugged partying on holiday really should be a cost born by the employer. Equally, sickness that results from an employee drinking water after being told to only drink bottled water, not having vaccinations that are recommended, getting sunstroke due to spending too much time in the midday sun  and participating in dangerous or unsuitable activities shouldn’t be a cost employers should have to bear. In other words, if you ruin your own holiday, why should your employer have to reimburse your holiday time and instead pay you sick pay?

Interesting Fact: If you are reading this and thinking that most employers don’t even notice or care about the cost of staff sickness, are you aware that SMEs (small and medium-sized enterprises) most of which are privately owned, employ 15.6 million people in the UK. That equates to 60% of all private sector employment in the UK. And if you are sitting on your corporate ‘throne’ busy writing off SMEs as financially irrelevant, don’t be too hasty as the combined annual turnover of SMEs was £1.8 trillion. And that equates to 47% of all private sector turnover in the UK (Department for Business Innovation and Skills 2015).

  1. Working Time Regulations… Commission

Huge frustrations arise around the complexity of paying guaranteed overtime/commission on holiday pay (a decision that was announced only last year and is still subject to an ongoing appeal).

For some employers, this has been an unexpected and costly shock. Frustrations and a sense of unfairness stem from the fact that employment offers have been made on the basis of an agreement between the two parties, only for one of the parties to then have the tables turned on them without any say or easy ability to renegotiate the original contract.

Most companies did not factor in the costs of paying ‘unearned commission and overtime’ when setting up those overtime and commission agreements. Perhaps in the future commission and overtime policies will have to be adjusted (i.e. what is usually paid is decreased) to accommodate these additional payments during holidays.

If such adjustments don’t occur then these additional payments will simply add into the seemingly never ending additional costs of employing someone in the UK, which long term impacts profitability and ability to compete in a global market.

Employers we speak to aren’t by and large seeking to ‘can’t we just treat them like bloody Mexicans?’ as one client so eloquently (?) put it a few years ago shortly before we binned them, and want to treat staff fairly, but there is a sense that some of our current legislation is overly onerous and that the balance has been lost.

  1. Working Time Regulations… Rest Breaks

Huge frustrations on the restrictions on weekly hours and the issue of rest breaks. It’s right that employers have to demonstrate duty of care to their employers, but again these are regulations that create unnecessary administrative burden and tie employers up in knots when in fact most employers are considerate of their employees needs.

The regulations also don’t take account of the fact that most of those we employ are adults – even if they don’t always act like it – and those adults often take on other jobs to increase their earnings on either a temporary or permanent basis and it is double jobbing that often creates as many issues of tiredness and stress as the principal employer demanding too many hours.

You might say that double-jobbing is required as their employers don’t pay enough but it’s interesting if you look at why people ‘double job’. Reasons include catching up financially after a period of unemployment, paying for holidays, compensating for a non-earning partner, paying off debts built up during periods of misfortune or personal irresponsibility. In addition, people sometimes double job to pay for what they term as ‘essentials’, but the ‘essentials’ people say their households need compared to just 10 years ago include a fair number of ‘luxuries or nice to haves’ – all of which cost a lot of money.

  1. Working Time… Holiday Accrual

Holiday accrual for women on maternity leave.

It really is a sock in the face to people who have worked hard to cover for a 12 month period when their colleague was off work on maternity leave to then have to cover for a further 5+ weeks while they take a holiday.

In the same way, it’s frustrating for the employers who have to pay those weeks in full – a massive cost to some employers for holiday accrued whilst the employee was not even at work – and an added financial burden if the cost of covering the period of maternity leave, has been greater than the employees’ normal salary would have been due to having to employ an expensive contractor or agency worker – brought on by having to keep the role open for 12 months.  Not to mention the added stress or pressure for those remaining at work if a contractor has not been employed during that period. In these cases, it could be argued that it’s the staff who have covered who deserve the extra holiday.

More importantly, though, has anyone asked the sensible question about whether someone who is off work for 12 months needs holiday? Holiday rights were brought in by the Working Time Regulations which focus on the health and safety of workers. Holiday rights were not brought in simply as a benefit. Do people who have been off work for 12 months need 5 weeks paid holiday to ensure their health, safety or welfare at work?

  1. Data Protection (and Human rights)

Many frustrations here arise from this legislation preventing responsible employers from checking that what people are doing on their company-issued technology is neither in breach of decency (e.g. visiting porn websites, downloading inappropriate photos) or restraint of trade clauses (e.g. setting up their own business whilst employed by you) without a long winded and pointless exercise warning staff that you are about to do that.

An added frustration is that when you do wish to carry out sensible checks, staff often push back claiming you are breaching their (Human) Rights to Privacy. For example, your employee is off sick with a bad back but their colleague mentions they were painting the roof of their caravan but the law doesn’t allow you to go and check that they are indeed sick. Or an employee’s Facebook posting suggests they are setting up in competition to you, but the law doesn’t permit you to conduct a spot check of their surfing history and emails sent and received. All very frustrating and potentially prevents responsible employers from managing fairly and responsible.

  1. Immigration and Asylum

Frustration arises over being able to recruit people with the skills, experience, knowledge you need for the job.  Often we come across employers who know the people they would like to employ as they have met them through networking or business dealings outside the EU but the restrictive legislation forces those same employers to instead dip into a pool of unknown and untested applicants.

There are also some populations that can provide the UK with highly skilled workers or workers with specific knowledge (cultural, geographical etc.) but because they are not in the EU employers are unable to employ them.

For the most part, we operate our businesses in a global market, not just a European market, and at times the EU market labour movement rules have restricted organisations’ ability to think and act globally.

  1. Agency Workers

These have not been popular since their introduction in 2000. Giving agency workers the same rights as permanent staff after 12 weeks not surprisingly appears to defeat the point about using agency workers in the first place.

The regulations also seem to disregard the fact that a lot of agency workers actually earn more than their permanent colleagues and choose to be agency workers for that very reason.

Huge aggravations have arisen as a result of lack of clarity about what constitutes 12 weeks which isn’t as simple as you might think! As a taster, what’s meant by ‘pay’ is complex and some rights accrue from day 1 whilst others  kick in after 12 weeks and what constitutes ‘12 weeks’ isn’t obvious as it includes some leave, and similarly what constitutes a ‘break in employment’ isn’t straightforward either.

As with zero hours working, clearly some employers have taken advantage and on occasions might be considered to be acting immorally and definitely not within the spirit of the law and in the same way some employers have taken advantage of agency workers. But this is another piece of legislation that protects employees from the few immoral employers and in so doing penalises the tens of thousands of employers who have not taken advantage.

  1. TUPE – again

The strict consultation procedures are considered onerous and unnecessary. Unless you are a micro business employing less than 10 staff in total, TUPE means that consultation has to take place with staff or trade union reps.

If you operate for example a catering, cleaning or maintenance business and you are regularly winning and losing contracts with just a few staff working on each of those contracts, your obligation under TUPE is to appoint and then consult with employee reps.

But what is there to consult on? The contract has been won or lost and the staff, by law, have to transfer over to the employer who won – unless of course, they choose to resign.  Why does the law contain no provision for individual consultation, but instead requires employers to use a costly hammer to crack a nut?

  1. Removal of Exemptions

In the world we live in where it is not uncommon to find that all adults in the household work, there is increasing reliance on domestic workers (drivers, nannies, cleaners etc.), but no individuals – or micro businesses that employ just one person – are exempted from our many and complicated employment laws.

20 or so years ago there were many exemptions that accommodated the very different needs of very small employers. Those have all gone.

The law needs to recognise that those who employ just one person are not professional employers i.e. they have no lawyer on tap or an HR business to tap into but all the laws they have to abide by are onerous and complex e.g. working time, data protection, maternity and do not take into account the added complexity and sensitivity of employing someone in your own home.

  1. Process and Procedure

It’s right to have a process that is fair and procedures that allow individuals to have their say, but there is a sense that there are now so many hoops to jump through for employers and the red tape is so complex that everything is far too long winded and complex and, as a result, far more stressful and costly than it really needs to be.

With such complexity and HR management increasingly being driven by lawyers rather than people who understand ‘people’, there is also a huge fear factor for many managers and employers as a result of the serious come back if they just put one foot wrong. That isn’t helpful to anyone.

As an example, if someone goes off sick whilst being disciplined, then the employer should be in its rights to continue that process without a long delay and not be held hostage to an employee claiming stress.  Equally, if someone holds their hands up to an act of gross misconduct then is there really any need for an investigation carried out by one person, followed by a hearing held by another person and numerous letters, notes of meetings and rights to appeal. It’s just too long winded much of the time.

  1. Default Retirement Age

Again, most (but not yet all!) employers now recognise that employing people post 65 is not the disaster many thought it would be, but there is a continued sense that it is a disaster for both employer and employee to have to terminate the employment of someone post usual retirement age after following a humiliating and onerous procedure simply because their work performance has deteriorated.

The old system whereby people could ask to work on post-retirement and employers agreed for this on typically a 2 year fixed term basis, seemed much friendlier and avoided any need to dismiss older workers due to declining performance.

Additionally, what could be a sensible way to avoid such dismissals might be to use the legal option of private and confidential Protected Conversations (section 11A of Employment Rights Act 1996), however these can’t be used in instances where a discrimination claim could be brought and any dismissal involving deteriorating performance due to age could result in an age discrimination claim.

Wow! So that’s on our client’s list. What’s on yours?

If you need support that is in Plain English, pragmatic and from a human (as opposed to script reader who’d never worked at the coal face) then get in touch. Some of our clients have been with us for nearly 20 years and we’d love to have you too.  Investigations, disciplinaries, contracts of employment, employment law training. Take a look at our website and testimonials.

The information contained within this article is for general guidance only and represents our understanding of employment and associated law and employee relations issues as at the date of publication. Jaluch Limited, or any of its directors or employees, cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on all individual matters.


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