UK Employment Law Update – October 2020

uk employment law update

With so much change happening all around us, we wanted to provide a quick round-up of developments in UK employment law which business owners, managers and HR departments need to be aware of. Including:

  • Pay cuts
  • New jobs support scheme
  • Returning staff from furlough
  • Christmas Parties – or the lack of them
  • Positive discrimination

Pay cuts

It has been reported in the press that various Silicon Valley employers are offering permanent home/remote working contracts in exchange for agreement on the part of the employee to take a pay cut. The extent of the pay cut dependent on the location they wish to move to and the cost of living in that location… the cheaper the cost of living, the greater the pay cut expected. We read of figures between 5 and 15%.

Across the UK we have staff working from home. Some will be saving nothing on the commute as they walk to work and save nothing on eating or drinking out during the day as they bring in their own lunch and/or drinks. But there are others who will be feeling very wealthy indeed after 6 months of saving both hours and pounds with no commute and no expensive coffee shop habit. A £6000 saving in rail fare alone for those no longer commuting from Southampton to Waterloo each day!

The question is: will you factor in employees reduced cost of living when next reviewing pay, rather than just blame a pay freeze on trading conditions? Or will you perhaps seek to go the next step and look to review pay completely as a result of remote working, just as they have done in Silicon Valley?

Be careful though, there is a process to follow if you wish to cut pay and that involves consultation and agreement given that pay is a fundamental term of the employment contract. Do not act in haste.

Of course not all employers would contemplate pay cuts to reflect new ways of working, even if employees are real winners if they relocate somewhere cheaper to live. Some employers we know are thinking about increasing pay because of the added costs of remote working such as heating, lighting, need for a proper chair etc. Or, if not increasing pay, adding in an extra lump sum annual payment to support with these things.

What is your pay strategy? Hold steady, cut pay, increase pay/benefits. Interesting times.

New Jobs Support Scheme

You will have all read about this in the press so here is a quick summary:

  • to be eligible, employees must have been on the employer’s Real Time Information submission on or before 23 September 2020 – and have been paid at least once.
  • the minimum 33% threshold hours for which an employee must work, may be increased in months 4-6 of the scheme. No detail yet available.
  • working patterns can vary, but each short-time working arrangement must cover a minimum period of seven days
  • the government’s grant will not cover Class 1 employer NIC or pension contributions, although they remain payable by the employer
  • ‘usual wages’ will follow a “similar” methodology to the CJRS
  • All SMEs are eligible, and larger businesses will be eligible if, but only if, their turnover has fallen during the COVID crisis.
  • The new Scheme is open to all employees, even if they were not previously furloughed.
  • The Scheme will run for six months from November.

Our thoughts… whilst employees are off or working at 33% under this scheme, remember they continue to accrue holidays and service etc. Are you aware who might be under the two year statutory rights threshold currently but on this scheme could gain rights you didn’t think through?

Also, beware bringing people back to work on 33% if there is simply not enough work for them – it’s soul destroying and we wouldn’t wish that on anyone. Be careful that your kindness in keeping them on the books does not end up being a cruelty when it comes to their self esteem, no one wants to feel like a spare part.

Returning staff from furlough or extended leave

As any women who have been on maternity leave can tell you, or indeed anyone on extended sick leave, it is truly a terrifying experience for many, the thought of returning to their workplace and picking up where they left off so many months ago.

So we recommend you take time to consider how to bring people back in, perhaps just a day or two initially to allow time familiarisation. Also consider some team building activities as well as some buddying if that would be of value. You might think about what reskilling is needed or about a mini re-induction as you might do for new starters – who has moved on, what has been reorganised, what new systems have come in, what clients have changed, what processes have been adapted etc.

It takes a  long while for people to get back into the swing of things but if you take time to give them all some bite size chunks of learning then you are in a good position to keep the motivation up and regain the necessary focus. This might be a good time to encourage your managers to use their coaching skills too, do a few 1-1’s and ensure returners are supported and confident in what they are doing.

Oh and it’s a great idea to ask returners what support they might need and what value. No need to play guessing games, ask them. You might even back this up with a quick survey ahead of them returning to work.

Christmas Parties – or the lack of them

It is no fun being a manager or business owner at this time, but it’s not much fun being an employee either! It’s pretty tough all round and the cancellation of Christmas and other December parties feels to many like a rubbish end to a rubbish year.

So what can you do to both show your appreciation to staff and also help build the spirits a little, if you are one of the many organisations that has already taken the decision to cancel Christmas festivities?

1. Gifts can still be bought. You just have to organise how to distribute them and be careful about data breaches if you hand out people’s home addresses to achieve this. How about you get creative with gifts this year, and why stick to just one Secret Santa? You could make it a competition: who can buy the best gift for a tenner, who can buy the most surprising gift, who makes and gives the best home made gift? Lots of options.

2. For those still seeing each other in the workplace, the restaurant or hotel venue might be out of play given numbers, but you can still share a few socially distanced meals with colleagues in the workplace which can of course be paid for by the boss! Again, get creative, bring in some quizzes, prizes, games and fun. All socially distanced of course but get your best creative minds on it and see what can be achieved.

3. For those who are working remotely full time some have become zoom weary and yet another catch up with a drink in hand on zoom doesn’t feel like much fun. Perhaps if ever there was a time for people to come into the office and leave their remote working behind for a bit this was it – distance and logistics permitting of course. The law currently encourages business decisions about where work can be done effectively. Whilst a lot of work can be done remotely there comes a time when a team is no longer effective because the bonds and relationships have been lost. So take the time this Christmas to create an opportunity to rebuild bonds.

For those who cannot attend an office, can regional meetings be held that include a little festive cheer or how about a Bake Off competition with exhibits being shown on camera as its Bake Off time of year again.  And if not bake off, how about a diy challenge for home owners, creative challenge for your artists etc. a few challenges, a few prizes and we can get a bit of cheer back.

4. For those who are still on furlough or not yet back to full time, take some extra time to ask them what they might like. Are they missing seeing colleagues, are they missing some team building, what would give them a renewed sense of belonging as surely that is the most basic human need when it comes to festivity time such as Christmas?

Positive Discrimination vs Action

We could write a whole HR Blast on this topic!

Black Lives Matter has had a wide-ranging impact in so many ways, but what we are seeing in many places is a move towards positive discrimination, coming out of the increased awareness of issues.

It has been our impression as a business, numerous times in recent months, that we have had training proposals rejected because we refuse to identify the colour of the skin of the person who will be delivering the training. After so many years of seeking to eradicate bias it feels so odd to be seeking to win proposals by specifically choosing who in the team will deliver the training. But clearly many training companies are doing just that, whilst we continue to refuse to do so. Probably our loss, but you always have to do what you believe is right. And we all have our own perspectives on what that is.

But going back to basics, is positive discrimination lawful?  Is positive action lawful? We will look at these below.

Positive Action

Positive Action is about creating a level playing field to enable people to compete on equal terms. Positive Action describes a range of measures which organisations take in order to  promote equality of opportunity.

Recruitment is the most common activity where we see measures taken to level up the playing field. If you advertise for example and are finding that 99% of your applicants are aged 18-24 perhaps you could look at where you advertise or the wording of your adverts as clearly somewhere something is going wrong if inadvertently you are putting off all those aged over 24.

We have seen in recent years organisations advertising roles in different publications, checking the words and phrases they use and adjusting in order to remove perceived barriers, we have seen images adjusted to create a different impression of a workplace to encourage a minority group forward and we have seen websites adapted to be more inclusive.

Positive Action measures have also been seen within organisations to encourage greater inclusion, provide additional support and to open up opportunities. Think about LGBTQ groups set up within workplaces, mentoring for women. You could even describe an annual diversity conference as a Positive Action measure.

The general focus is always on creating a fair and equitable career and opportunity pathway for members of under-represented groups

It is lawful under s.158 of the Equality Act 2010 for an employer to take action to compensate for disadvantages that it reasonably believes are faced by people who share a particular protected characteristic (ie age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation). Separate Provisions allowing positive action in relation to recruitment and promotion in limited circumstances are contained in s.159 of the Equality Act 2010.

Positive Discrimination

Just a few years ago Cheshire Police was fined after a finding of discrimination on grounds of sexual orientation, race and sex. They had deliberately excluded white, straight men in order to seek to address the imbalance that had been identified in respect of different sexualities, gender and race.

It was determined that positive discrimination is only permitted when making a decision about pairs of candidates of equal calibre. Eliminating high calibre candidates in order to offer a role to a candidate of a lower calibre is not permitted.

So where does this leave the BBC and other broadcasters who in recent months have seemingly been removing white presenters and replacing them with mixed race or black presenters?

Well, we have yet to see if there will be any discrimination claims from the presenters removed and if there are any, we may never get to hear about them or be able to decide if discrimination has occurred or not if they are settled out of court.

That aside, it must surely feel awful if you have been given one of the best opportunities of your life only for it to be suggested you are not there on merit but because of colour of your skin. This has happened with several of the recent appointments. Think Micah Richards and potentially Alex Scott too.

So positive action is lawful, positive discrimination seldom lawful. So tread with caution when next you specifically ask a training company for a trainer of colour! As we have said so often, you cannot include some, if in so doing you then exclude those who used to be included. What we all need to be working towards is the inclusion of all, it’s a challenging, sensitive road ahead but one we must travel if we are genuinely to engage and include all.

As always, we’d love to hear your ideas on these topics. Please email us and let us know your thoughts.

to top button