Employment

The Work Couch: Non-financial misconduct, regulation and the law (Part 3): Creating a "Speak Up" culture and post-investigation actions

Wed, 01 Apr 2026 10:49:00 +0100

Later this year, extensive regulatory and legislative reforms will transform how employers tackle bullying, harassment and other toxic behaviour at work. In particular, the Financial Conduct Authority has now finalised its non-financial misconduct guidance, with significant changes coming into force on 1 September 2026. And alongside that, the Employment Rights Act 2025 will introduce a suite of reforms on 1 October 2026, aimed at strengthening protections against harassment at work and changing how employers approach prevention.

So, to help employers navigate and prepare for the new regime, we're devoting our latest three-part mini-series to the topic of non-financial misconduct or "NFM".

In the third and final part of our mini-series, host Ellie Gelder is joined by Sybille Raphael, joint CEO at whistleblowing charity Protect and Patrick Brodie, partner and head of RPC's Employment, Engagement & Equality team. Sybille and Patrick share their insights on:

the increasingly prominent role of NFM in cases of whistleblowing;
the regulatory, legislative and cultural impetus to tackle NFM;
why people find it hard to blow the whistle about NFM and how employers can empower their employees to speak up;
balancing responsibilities to the whistleblower, the alleged wrongdoer and witnesses;
what "good" looks like when we talk about "Speak Up" cultures;
how to assess if your organisation's process for reporting and investigating NFM is working;
specific actions that employers might consider taking after a formal investigation into NFM has concluded; and
Sybille and Patrick's key practical takeaways.

Listen to parts 1 and 2 of this Work Couch mini-series on Non-financial misconduct, regulation and the law:

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release. You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording. The Work Couch is not a substitute for legal advice.

References

Report by Acas: How prevalent is individual conflict at work in Great Britain in 2025? (20 November 2025)
Report by Protect: Attitudes to whistleblowing – from Gen Z to Baby Boomers (24 June 2025)
Research by Mental Health First Aid England for My Whole Self campaign (10 February 2026)
Protect's Whistleblowing Benchmark tool

About Protect

Protect has over 30 years' experience helping employers diagnose system weaknesses, develop triage models, and strengthen speak-up culture. Protect sees over 3,000 new cases annually, giving a uniquely broad evidence base on emerging patterns. Protect has shaped the thinking around whistleblowing since 1993, helping Parliament and regulators set the rules and intervening in major appeal cases.

The Work Couch: Non-financial misconduct, regulation and the law (Part 2): Key watch-outs before and during an investigation

Tue, 17 Mar 2026 13:59:00 Z

So, to help employers navigate and prepare for the new regime, we're devoting our latest three-part mini-series to the topic of non-financial misconduct or "NFM".

In part two, host Ellie Gelder is joined by Kelly Thomson, Partner and ESG Strategy Lead, and Charlotte Reid, Senior Associate, who both work in our Employment, Engagement & Equality team. Together, they explain the nuts and bolts of the investigation itself, including:

dos and don'ts when triaging a complaint of NFM;
important questions to ask when planning and scoping an investigation, including who in the organisation should form part of the investigation team;
the business case for delegating an investigation to an external investigator or law firm;
common tricky issues, for example anonymous complaints, historic allegations, and whether to suspend the alleged wrongdoer;
confidentiality and striking the right balance in respect of all parties;
how to handle the overlap between employment and regulatory processes; and
Kelly and Charlotte's key practical takeaways.

Listen to part 1 of this Work Couch mini-series: Non-financial misconduct, regulation and the law (Part 1): What’s on the horizon for 2026? and join us for the third concluding part in two weeks' time, when we will discuss practical steps to take after a formal investigation has concluded and how to create - and sustain - a "Speak Up" culture.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release. You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording. The Work Couch is not a substitute for legal advice.

References

ACAS code of practice on disciplinary and grievance procedures

The Work Couch: Non-financial misconduct, regulation and the law (Part 1): What’s on the horizon for 2026?

Wed, 04 Mar 2026 16:14:00 Z

So, to help employers navigate and prepare for the new regime, we're devoting our latest three-part mini-series to the topic of non-financial misconduct or "NFM".

In part one, host Ellie Gelder is joined by Macaela Joyes, Associate in our Employment, Engagement & Equality team and Whitney Simpson, Of Counsel at RPC, who share their insights on:

what NFM means and the types of behaviour it includes;
why addressing NFM does not rest solely with HR and People teams and the importance of wider accountability across the business;
the regulatory and legislative developments coming into effect later this year and how they will impact the approach that firms will need to take when responding to allegations of non-financial misconduct;
the nuances of non-financial misconduct that takes place online or outside work; and
some key practical steps for firms to take in readiness for the upcoming changes.

Join us for part 2 in two weeks' time, when we will discuss the nuts and bolts of the investigation itself and common pitfalls for employers to be aware of.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release. You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording. The Work Couch is not a substitute for legal advice.

References

The Work Couch: April 2026 employment law changes: Actions to take NOW!

Thu, 12 Feb 2026 07:59:00 Z

Continuing our deep dive into the Employment Rights Act 2025, this week we discuss the imminent wave of employment law reforms coming into effect in April 2026 - and the key actions to take now.

Host Ellie Gelder is joined by Charlotte White, partner, and Ramina Krivich, trainee solicitor, both from our Employment, Engagement & Equality team, who share their insights on:

Statutory sick pay reforms and the practical steps employers can take to prepare;
The establishment of the Fair Work Agency and how this will impact compliance procedures, litigation risk and settlement negotiations, and record-keeping;
The doubling of the collective redundancy protective award period and how this could affect decisions on restructures and how consultation is undertaken;
Trade union-related reforms and navigating a new landscape for employee relations;
The extension of whistleblowing protections;
Family-friendly changes; and
Top tips to ensure business readiness for the April 2026 reforms.

The Work Couch will bring you more updates on the Employment Rights Act (ERA) as they develop. In the meantime, you can keep on top of all of the 25 plus employment law reforms introduced by the ERA - as well as access key watch-outs – by signing up to our ERA tracker, a free resource which is regularly updated by the Employment, Engagement & Equality team.

For a more detailed discussion on the family-friendly changes introduced by the ERA, listen to our previous Work Couch episode with Joanna Holford and Megan Latham here.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release. You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording. The Work Couch is not a substitute for legal advice.

References

High Court warns that non genuine PIPs could breach the implied duty of mutual trust and confidence

Mon, 02 Feb 2026 10:40:00 Z

However, a recent decision of the Singapore High Court has made it clear that the improper implementation of PIPs may expose employers to liability for breach of an implied term of mutual trust and confidence in the employment relationship.[1]

Background of the Case

The Claimant was employed by the Defendant, a multi-national software company, as its Head of Service Sales. The employment relationship soured after the Claimant sent aggressive and disrespectful correspondence to his colleagues, including personal attacks on some employees.[2]

After considering various options to terminate the claimant's employment, the Defendant eventually placed him on a 45-day PIP focusing on five key improvement areas: communication, alignment with senior leadership; leadership behaviour; team management; and improving the relationship with another team of the Defendant.[3]

While the Claimant's supervisors considered that he performed well during the PIP, they nevertheless doubted that he was genuine and sincere in changing his behaviour. After the PIP ended, the Defendant therefore terminated the Claimant's employment with notice, in accordance with the Claimant's employment contract.

The Claimant proceeded to file a claim in the High Court, alleging that the Defendant terminated his employment pursuant to an unlawful means conspiracy, or alternatively, a lawful means conspiracy. He also alleged that the Defendant had breached implied terms in relation to his employment contract, including an implied term of mutual trust and confidence. In total, the Claimant claimed almost SGD 5,000,000 in damages, including loss of earnings, damages for pain and suffering, and injury to reputation.[4]

Breach of Implied Term of Mutual Trust and Confidence

The High Court dismissed the claims of unlawful means conspiracy and lawful means conspiracy, as it recognised that the employment contract allowed the Defendant to terminate the employment relationship at any time, for any reason or for none. The Defendant would have only needed to resort to a conspiracy if there were no mechanism to terminate the employment contract. In any case, the High Court was not convinced that the alleged conspirators intended to cause damage or injury to the Claimant, which is an essential element of a conspiracy claim.

However, the High Court agreed that there was an implied term of mutual trust and confidence in the employment contract, which was justified based on precedents, as well as principle and policy considerations. This implied term included a duty not to behave in an intolerable or wholly unacceptable way.[5] In particular, an employer should not “without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”.[6]

On the facts of the case, the Court held that the Defendant had behaved in an intolerable or wholly unacceptable way. It had pre-judged the Claimant because he was not given a genuine opportunity to improve and rectify his poor behaviour.[7] The Defendant's management had intended to terminate the Claimant's employment even before the PIP was implemented. Even though the Claimant's conduct improved during the PIP, this did not change the views of his superiors, who pushed ahead with the decision to terminate his employment. The Defendant also failed to document the Claimant's progress during the PIP, and did not document the outcome of the PIP nor communicate it to the Claimant.[8]

The Court concluded that the outcome of the PIP was "pre-ordained" and the Claimant was "doomed to fail".[9] This ran counter to the very nature of a PIP, which is to provide a structured plan for an employee to improve his or her performance.[10]

The Defendant was therefore found to have breached the implied term of mutual trust and confidence. However, the Claimant was only awarded nominal damages of SGD 1,000, as he could not prove that the Defendant's breaches had caused him damage.

Takeaways for Employers

PIPs remain a useful tool in an employer's arsenal when faced with underperforming employees. Nevertheless, employers should only place an employee on a PIP where the company genuinely intends to provide opportunities for improvement and to support the employee in performing better at work. Employers should also document the progress and outcome of the PIP diligently, as well as any conversations with the employee regarding the PIP, in case there is any dispute over what transpired between the parties.

Employers should be mindful that under Singapore law, there is no obligation to place an underperforming employee on a PIP. If an employer is of the view that an employee is simply not a good fit for the organisation, it has the option of terminating the employee's employment with notice, or by paying salary in lieu of notice. Based on the Tripartite Guidelines on Wrongful Dismissal, dismissals with notice are presumed not to be wrongful, as both employee and employer have the right to contractually terminate the employment with notice.

Special thanks to our trainee Phoebe Goh for her contribution to the article.

[1] - [10] - All footnotes refer to the High Court's decision which is available here.

The Work Couch: The Employment Rights Act: A new era for family-friendly rights

Wed, 28 Jan 2026 12:19:00 Z

Kicking off Season 4, we take a deep dive into how the Employment Rights Act 2025 will transform a key area of employment law: family-friendly rights at work. We explain what the changes mean, when they are expected to come into force, and the practical steps employers can take now to stay one step ahead.

Host Ellie Gelder is joined by Joanna Holford, senior associate, and Megan Latham, trainee solicitor, both from our Employment, Engagement & Equality team, who share their insights on:

New "day one" rights to statutory paternity leave, unpaid parental leave, bereavement leave and how these will apply in practice;
The introduction of extended paternity leave for eligible bereaved fathers and partners, (separate from the ERA but also coming into force in April 2026);
Enhanced protections for pregnant workers and new mothers against dismissal;
Flexible working reforms;
The recently published terms of reference for the government's review into carers leave; and
Top tips to prepare for this new era of family-friendly rights.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release. You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording. The Work Couch is not a substitute for legal advice.

The Work Couch: Disability at work (Part 2): What is a "reasonable" adjustment? With Victoria Othen

Wed, 22 Oct 2025 13:34:00 +0100

Host Ellie Gelder is once again joined by consultant employment lawyer Victoria Othen to talk about disability at work and what reasonable adjustments look like at each stage of the employment life cycle. In part two, which is packed with practical examples, they discuss:

Relevant factors when assessing the reasonableness of an adjustment;
Risks and exceptions relating to pre-employment health questions during the recruitment process;
Case law on reasonable adjustments in respect of performance and attendance management, and redundancy processes;
Reasonable adjustments to policies and procedures;
Low or zero cost adjustments; and
Victoria's top tips for employers to comply with their duty to make reasonable adjustments.

Listen to our previous Work Couch episode: Disability at work (Part 1): "Right to try work" and the law on reasonable adjustments.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. You can subscribe on Apple Podcasts and Spotify to stay up to date with all the latest episodes.

All information is correct at the time of recording. The Work Couch is not a substitute for legal advice.

References

Equality and Human Rights Commission guidance on workplace adjustments
Noor v Foreign & Commonwealth Office EAT/0470/10
Dominique v Toll Global Forwarding Ltd EAT/0308/13
AECOM Ltd v Mallon [2023] EAT 104
Adjusting your recruitment process for a candidate with a disability: What is reasonable? (RPC article, 18 September 2023)
Waddingham v NHS Business Services Authority ET/1804896/13 & ET/1805624/13
Shearer v South Lanarkshire Council 4107433/23 (Scottish ET)
Archibald v Fife Council [2004] HL 32
Rentokil Initial UK Ltd v Miller [2024] EAT 37

The Work Couch Live - Employment Rights Bill: What do employers and leaders need to know?

Mon, 06 Oct 2025 12:21:00 +0100

In our second live episode, recorded before a special audience of RPC clients, host Ellie Gelder is joined by three leading voices in employment law to dissect - and make sense of - the transformational and ground-breaking Employment Rights Bill. The panel comprised:

Professor Catherine Barnard, Professor of European law and employment law at the University of Cambridge;
John Bowers KC, of Littleton Chambers. John is Principal of Brasenose College, University of Oxford, and also sits part-time as a judge in the Employment Appeal Tribunal; and
Shantha David, Head of Legal Services at Unison, the UK's largest trade union.

The panellists each share their insights into the practical implications of many of the key reforms introduced by the Bill, including: "day one" rights to protection from unfair dismissal; restrictions on fire and re-hire; trade union-related reforms; changes to collective redundancy; bereavement leave and the strengthened duty to prevent sexual harassment.

They also provide their key watch-outs and tips for employers and business leaders, as they look to navigate the evolving employment law landscape.

Please note: This episode was recorded on 30 September 2025 in front of a live audience at RPC's London offices as part of the Employment, Engagement and Equality team's panel event exploring the Employment Rights Bill. All information is correct at the time of recording. The Work Couch is not a substitute for legal advice.

* These podcasts will not run on Internet Explorer

We hope you enjoyed this episode. You can subscribe on Apple Podcasts and Spotify to stay up to date with all the latest episodes.

References

1. Employment Rights Bill

2. Written evidence submitted by Professor Alan Bogg and Michael Ford KC to The Employment Rights Public Bill Committee (ERB69) (December 2024)

The Work Couch: Disability at work (Part 1)

Wed, 17 Sep 2025 10:20:00 +0100

Host Ellie Gelder is joined by consultant employment lawyer Victoria Othen to explore the government's proposed changes to welfare and disability benefits and how this may impact the duty on employers to make reasonable adjustments. In part one, they discuss:

The background to the proposed "Right to try work" scheme;
A reminder of the legal definition of disability as set out in the Equality Act 2010;
Factors that employment tribunals take into account when assessing if a claimant is disabled within the meaning of the Act;
The legal components of the duty to make reasonable adjustments; and
Whether or not employers require knowledge of a disability to trigger their duty to make reasonable adjustments.

Join us for part 2, when we will discuss what reasonable adjustments look like at each stage of the employment life cycle.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. You can subscribe on Apple Podcasts and Spotify to stay up to date with all the latest episodes.

Please note: All information is correct at the time of recording. However, please note that this episode was recorded before the recent cabinet reshuffle and consequential changes in ministerial responsibilities, which took place on 5 September 2025.

References

1. Pathways to Work: Reforming Benefits and Support to Get Britain Working Green Paper (Government consultation opened on 18 March 2025 and closed on 30 June 2025)

2. Employers: Influencing disabled people’s employment through responses to reasonable adjustments, Disability & Society (Research by Disability Research Specialists, 19 July 2022)

3. Work Couch episode: Addiction at work: Disciplinary or wellbeing issue? With Charlotte Reid and Eleena Misra, KC

4. Work Couch episode: Narratives, reasonable adjustments, and the business case for accessibility, with Samantha Renke

The Work Couch: Judicial mediation: What is it and what can employers expect? With Charlotte Reid and Brodie Walker

Thu, 04 Sep 2025 15:59:00 +0100

As the Summer holidays draw to a close - and the backlog in employment tribunal cases continues - the Work Couch is going back to school with a lesson on judicial mediation (JM).

JM, which is a form of alternative dispute resolution (ADR), has a reported success rate of 65 – 70%, but how does it work in practice? Host Ellie Gelder is joined by senior associate Charlotte Reid and trainee solicitor Brodie Walker to explain:

How JM differs from other forms of ADR;
How JM works in practice and what employers can expect;
The role of the judge in JM;
When, in the life cycle of an employment tribunal claim or dispute, might the employer look to instigate the JM process;
The pros and cons of JM; and
The impact that the incoming Employment Rights Bill may have on the use of JM in the future.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. You can subscribe on Apple Podcasts and Spotify to stay up to date with all the latest episodes.

All information is correct at the time of recording. The Work Couch is not a substitute for legal advice.

References

Guidance on Alternative Dispute Resolution issued by the President of Employment Tribunals in England and Wales (July 2023)

The Work Couch: Carers Week Special (Part 2): Intersectional nuances, wellbeing and creating carer-friendly workplaces, with Rachel Pears and Zahra Lakhan-Bunbury

Wed, 25 Jun 2025 14:54:00 +0100

This year's Carers week theme is "caring about equality" and highlights the inequalities faced by unpaid carers, including a greater risk of poverty, social isolation, and poor mental and physical health. Sadly, and far too often, carers of all ages are missing out on opportunities in their education, careers or personal lives just because of their caring role.

To explore how employers play a critical role in removing these barriers, host Ellie Gelder is joined by two passionate advocates for carers: RPC's own Rachel Pears and Zahra Lakhan-Bunbury from Carers UK.

Rachel is associate director for responsible business and employment counsel at RPC, and is a carer herself. Last year, she spearheaded RPC's collaboration with Carers UK, which culminated in the Mind the Caring Gap report, which garnered widespread press attention.

Zahra, who is an account manager at Employers for Carers, the workplace arm of Carers UK, works with leading organisations including government departments, retailers and local authorities to identify and share best practice for supporting carers in the workplace.

In part 2 of this series, Rachel and Zahra discuss:

Identifying as a carer and why some people don't see themselves as carers;
Distinguishing between different types of care and the unique challenges;
Caring responsibilities in the legal sector and some stark statistics;
The impact caring can have on the carer's physical and mental wellbeing; and
Key ingredients to create carer-friendly workplaces.

Listen to Part 1: Lived experiences, the law and the role of employers.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. You can subscribe on Apple Podcasts and Spotify to stay up to date with all the latest episodes.

All information is correct at the time of recording. The Work Couch is not a substitute for legal advice.

References

Mind the caring gap: Exploring the impact of caring responsibilities in the legal sector (Report by RPC, LawCare and Next 100 Years, June 2024)

Hong Kong’s New 468 Rule for Continuous Employment

Mon, 23 Jun 2025 11:07:00 +0100

Currently, employees are required to work at least 18 hours per week over four consecutive weeks (known as the "418" rule) in order to be considered in continuous employment under the Employment Ordinance. Where an employment contract is a continuous contract under the Employment Ordinance, the worker is entitled to various statutory employment rights and benefits, including statutory holidays, sickness allowance, and rest days.

Under the Bill, the criteria for determining continuous employment will be adjusted as follows (also known as the "468" rule):

1.Reducing the weekly working hours threshold from 18 to 17 hours; and

2. Providing for an additional method for fulfilling the continuous contract requirement: Where an employee works for 68 hours or more within a 4-week period for the same employer, the employee will also be considered to have fulfilled the continuous contract requirement.

The Bill will allow more employees to be eligible for statutory employment benefits and protection. For the employees who have already met the previous "418" rule under the current provision, their employment rights and benefits will not be affected. Going forward, employers should bear the new "468" rule in mind when considering and calculating employment benefits and termination payments.

The Work Couch: Carers Week Special (Part 1): Lived experiences, the law and the role of employers, with Rachel Pears and Zahra Lakhan-Bunbury

Wed, 11 Jun 2025 14:54:00 +0100

In part 1 of this series, Rachel and Zahra discuss:

Their own experiences of caring and the impact on their respective personal and working lives;
Existing statutory entitlements to time off work for carers, including the Carer's Leave Act 2023, which came into force on 6 April 2024;
How an increasing number of employers are offering enhanced time off for their employees with caring responsibilities;
The human and commercial reasons for employers to actively engage with this issue; and
Why we need to be mindful when using the word 'resilience'.

Join us for Part 2 on 25 June, when we will look at the intersectional nuances of caring, the impact of caring on wellbeing, and how to create carer-friendly workplaces.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. You can subscribe on Apple Podcasts and Spotify to stay up to date with all the latest episodes.

All information is correct at the time of recording. The Work Couch is not a substitute for legal advice.

References

Mind the caring gap: Exploring the impact of caring responsibilities in the legal sector (Report by RPC, LawCare and Next 100 Years, June 2024)

The Work Couch: Supreme Court ruling on the definition of "sex": What does this mean for employers? with Patrick Brodie and Kelly Thomson

Wed, 04 Jun 2025 13:33:00 +0100

This week, host Ellie Gelder speaks to Patrick Brodie and Kelly Thomson about the landmark Supreme Court decision in For Women Scotland Ltd v The Scottish Ministers, which has prompted many questions for UK businesses and employers.

Focusing on the law, Patrick and Kelly provide an accessible, balanced overview of the decision, including:

A brief background to the case and the key question for the Supreme Court;
The legal implications of the decision with respect to same-sex facilities;
Divergence between the definition of 'sex', 'man' and 'woman' in the Equality Act 2010 and in the Workplace (Health, Safety and Welfare) Regulations 1992;
Biological sex definition and varying perspectives;
The interim update guidance from the Equality and Human Rights Commission;
Various legal challenges to the decision; and
Practical measures for employers to balance their legal obligations with their cultural and inclusivity goals, especially in relation to their trans colleagues.

To learn more about trans inclusion and how to be an effective ally, please listen to this previous Work Couch episode, with Emma Cusdin, Global Butterflies.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. You can subscribe on Apple Podcasts and Spotify to stay up to date with all the latest episodes.

All information is correct at the time of recording. The Work Couch is not a substitute for legal advice.

The Work Couch: Navigating trauma in the legal world (Part 2), with Rebecca Norris and Camilla Wells: Implementing a trauma-informed work culture

Wed, 28 May 2025 12:30:00 +0100

To explore this year's Mental Health Awareness Week theme of community, host Ellie Gelder is joined once again by Rebecca Norris and Camilla Wells, co-founders of Trauma Informed Law, an organisation which offers specialist support for trauma, burnout and overwhelm in the legal sector.

In the second part of this series, we discuss:

Identifying the less obvious signs of trauma;
How to foster effective psychological safety;
Key dos and don'ts when supporting a person affected by trauma;
Commercial benefits of being a trauma-informed business; and
The role of leadership in embedding a trauma-informed work culture.

To access further support on mental health, you may wish to visit the Samaritans, Mind, or Rethink. Or you can use the text service from Shout on 85258.

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release. You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

The Work Couch is not a substitute for legal advice.

The Work Couch: Navigating trauma in the legal world (Part 1), with Rebecca Norris and Camilla Wells: Spotting the signs and understanding the science

Wed, 14 May 2025 09:30:00 +0100

To mark Mental Health Awareness Week and this year's theme of community, host Ellie Gelder is joined by Rebecca Norris and Camilla Wells, co-founders of Trauma Informed Law, an organisation which offers specialist support for trauma, burnout and overwhelm in the legal sector.

In part 1, we discuss:

Terminology and language to describe trauma;
The various ways that trauma shows up in the legal world, from clients, to witnesses, to colleagues and other lawyers;
How to spot the signs of trauma;
The neuroscience behind stress and distress;
Vicarious trauma; and
How trauma affects people at different stages of their career.

To access further support on mental health, you may wish to visit the Samaritans, Mind, or Rethink. Or you can use the text service from Shout on 85258.

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release. You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

The Work Couch is not a substitute for legal advice.

Ten years of the Modern Slavery Act: renewed focus on business responsibility

Thu, 08 May 2025 14:52:00 +0100

What is the update?

On 24 March 2025, the Home Office published its updated Transparency in Supply Chains (TISC) guidance (the Guidance), offering detailed recommendations to assist organisations in complying with their obligations under Section 54 of the Modern Slavery Act 2015 (the Act).

When the Act came into force 10 years ago, it was praised as a "world-leading" piece of legislation, reflecting the UK's firm stance against the crimes of slavery, servitude, forced labour, and human trafficking. Section 54 introduced one of the first mandatory requirements for large businesses – with a turnover of £36m or more and carrying out business in the UK - to publish annual statements, to address slavery in their operations and supply chains.

Despite its promising start, in the decade that has followed, the Act has received wide spread criticism due to its alleged 'lack of teeth', with calls for strengthened guidance and, more recently, the House of Lords reporting that the Act is "too limited to have significant practical impact".

This raises the question of whether the refreshed Guidance makes any significant changes to address the perceived shortfalls of the Act. At the Guidance launch event, the Minister for Safeguarding and Violence Against Women and Girls, Jess Phillips, welcomed the return of the modern slavery brief to her role's remit, emphasising that slavery is "not just an evil of the past" and warning that organisations failing to identify risks are "probably not looking hard enough".

What are the key changes?

The Guidance pushes organisations to adjust their perspective of their section 54 obligations, moving beyond box-ticking towards wider transparency, and seeking compliance with not just the letter but also "the spirit" of section 54. Some of the key changes to the Guidance include:

The Government Registry: Since its launch in March 2021, organisations have been encouraged to upload their statements to the government's Modern Slavery Statement Registry, centralising statements into one place and inviting public scrutiny. The Guidance now includes express reference to the registry and renews this call to action, despite stopping short of introducing a mandatory requirement to upload.
Two-tier system of disclosures: The Guidance has introduced a two-tier system in relation to the recommended statement disclosures, distinguishing between organisations drafting their statements for the first time and organisations that are more familiar with the reporting requirements. The latter group is expected to provide deeper insights and to demonstrate progress over time, continuously improving their practices.
Focus on Environmental, Social and Governance (ESG): The Guidance cites the impact of modern slavery on market positioning, procurement processes and insurance premiums, while also referencing how investors are increasingly focused on wider ESG factors (a fact demonstrated by those groups in attendance at the Guidance launch event). It recommends a unified strategy for risk mapping, due diligence and remediation to streamline compliance and address diverse stakeholder expectations.
Individual statements for group structures: The Guidance has clarified that while it remains permissible for a parent company to produce a single statement that its in-scope subsidiaries can also use, if the various organisations within a group structure operate across different sectors (and therefore attract different risks and responses) it is best practice for each in-scope organisation to produce their own tailored statement rather than relying on the parent company's.
Changing attitudes: The Minister has expressed her desire to see attitudes towards the section 54 disclosure obligations change from an avoidance or deniability approach, to one of increased accountability and knowledge-sharing. The Guidance warns that organisations that ignore or deny the presence of modern slavery risks in their supply chains are "highly unlikely to have conducted effective risk assessments and due diligence", while responsible organisations are those which "acknowledge the risks".

What comes next?

Despite the positive changes to the Guidance outlined above, it stops short of introducing new mandatory obligations that might provide meaningful remedy to the existing criticisms of the Act. Many of the new recommendations remain voluntary and, although failure to comply with section 54 risks reputational damage and exclusion from public contracts, the UK's anti-modern slavery regime still fails to impose truly meaningful penalties. It's notable that while the Home Secretary has the power to bring civil proceedings, no injunctions have been issued to date, and the Guidance does not move the dial on this point.

Ultimately, the Guidance's remit is limited by the shortfalls of the Act and real progress will require legislative reform. The return of the modern slavery brief to the Safeguarding Minister suggests a renewed government focus and intent to drive meaningful change.

RPC will continue to share any updates regarding the MSA and TISC guidance and share new information as it becomes available. Please get in touch with the authors listed here if we can provide any advice in this area.

Neonatal Care Leave: What do employers need to know?

Wed, 07 May 2025 10:06:00 +0100

Background

Neonatal care leave has been a topic of legislative conversation since the UK Government's Spring 2020 Budget, when it was announced that the government would create a new statutory entitlement to neonatal care leave and pay.

In April this year, the new right came into effect under the Neonatal Care (Leave and Pay) Act 2023, which is implemented by two sets of regulations: the Neonatal Care Leave and Miscellaneous Amendments Regulations 2025, and the Statutory Neonatal Care Pay (General) Regulations 2025.

The right applies to eligible parents of babies born on or after 6 April 2025. The entitlement does not apply retrospectively, therefore employees with babies born before this date, are not entitled to the leave or pay.

Features of neonatal care

Neonatal care refers to medical care which a baby receives within the first 28 days after birth. Neonatal care includes care received in a hospital, care given to a baby after leaving the hospital under the direction of a consultant, ongoing monitoring arranged by the hospital, and palliative or end-of-life care.

The entitlement to neonatal care leave ends 68 weeks after the baby's date of birth.

In the case of multiple births, such as twins and triplets, there is only a single entitlement meaning if an employee had twins, the employee would not have "double" the entitlement to the leave.

Who can take the leave?

For the right to leave to apply, the employee must be taking leave to care for the child, and must be either:

the child's parent;
the intended parent where there is a surrogacy arrangement;
the child's adopter, prospective adopter; or
the partner of either the adopter or prospective adopter.

When can the leave be taken?

For the right to arise, the baby must receive seven days uninterrupted neonatal care, which constitutes "a qualifying period". For each qualifying period, the parent receives one week of leave, subject to a maximum of 12 weeks. It is worth noting however that because there must be a qualifying period of seven days, the right to take leave only arises after the baby has been in neonatal care for seven days (day eight). As a result, parents are required to use other forms of leave, usually maternity or paternity leave, to cover the first seven days that the baby receives neonatal care.

There are different rules depending on when the employee takes leave. The legislation divides neonatal care leave into two tiers. The tier 1 period starts when the employee's baby starts receiving neonatal care and ends on the seventh day after the baby stops receiving care. During tier 1, eligible employees can take one week's neonatal care leave for each week that their baby receives uninterrupted neonatal care, up to a maximum of 12 weeks. This leave can be taken in non-continuous blocks; however, each block must be a minimum of one week.

Tier 2 is any other period after tier 1 has ended during which the employee is entitled to take the neonatal care leave. Tier 2 must be taken in continuous blocks.

Notice requirements

The notice requirements depend on the type of leave the employee intends to take. For tier 1 leave, an employee must notify their employer before they are due to start work on the first day of leave. The notice does not need to be in writing.

For tier 2 leave, the employee must notify their employer in writing, at least 15 days before the date they intend to take the leave. If the employee intends to take 2 weeks or more of leave, the employee must tell the employer 28 days before the leave starts.

Employers may, however, vary the specific notice requirements at their discretion.

Pay

While the right to neonatal care leave applies from the first day of employment, to be eligible for neonatal care pay, the employee must have 26 weeks of continuous service, and they must have earned at least £125 a week on average for eight weeks before taking the leave.

The pay will be the lower of £187.18 per week or 90% of the employee's average weekly earnings.

What does this mean for employers?

As with all new statutory changes, the effect on employers is yet to be fully seen, however we consider the following points to be worth noting:

Familiarisation – employers will need to familiarise themselves with the new rules and consider implementing their own neonatal care leave policy or amending existing policies.
Interaction with other leave – neonatal care leave does not replace existing types of family-related leave; it can be taken in addition to any maternity/paternity or other types of leave which an employee is entitled to, however, two different types of leave cannot be taken concurrently.
Discretion – employers can choose to vary the existing requirements (notice, leave allowance and pay).

For advice on the new statutory requirements, please contact Kim Wright or Joanna Holford.

Further resources

For a detailed discussion on the practicalities of the new legislation, as well as hearing from special guest Catriona Ogilvy from charity The Smallest Things about the lived experience of having a baby in neonatal care, you may like to listen to our recent Work Couch podcast episodes:

Neonatal care leave (Part 1): What is the new right, who is eligible, and does the law go far enough? With Joanna Holford and Catriona Ogilvy

Neonatal care leave (Part 2): Managing the process and supporting employees, with Joanna Holford and Catriona Ogilvy

Please subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

The Work Couch: Neonatal care leave (Part 2): Managing the process and supporting employees, with Joanna Holford and Catriona Ogilvy

Wed, 16 Apr 2025 10:10:00 +0100

In the second part of our series on the new statutory right to neonatal care leave, which came into force on 6 April 2025, host Ellie Gelder is joined once again by Joanna Holford, senior associate, from our employment, engagement and equality team, and Catriona Ogilvy, founder and chair of charity The Smallest Things.

Catriona and her team have worked tirelessly to campaign for better support for employees whose babies require neonatal care, while Joanna is frequently advising employer clients on all family-related rights.

In part 2, we discuss:

How to communicate with employees during neonatal care leave;
Ongoing challenges for parents beyond their return to work;
Interaction of neonatal care leave with other forms of family-friendly leave;
Scenarios not covered by the new legislation; and
Practical considerations, including amending internal policies, providing line manager training, and offering effective support.

Listen to our previous conversation here: Neonatal care leave (Part 1): What is the new right, who is eligible, and does the law go far enough?.

For in-depth information and support, please visit The Smallest Things or Working Families, the UK's national charity for working parents and carers.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

The Work Couch: Neonatal care leave (Part 1): What is the new right, who is eligible, and does the law go far enough? With Joanna Holford and Catriona Ogilvy

Wed, 02 Apr 2025 14:03:00 +0100

In the first part of our series on the new statutory right to neonatal care leave, which comes into force on 6 April 2025, host Ellie Gelder is joined by Joanna Holford, senior associate, from our employment, engagement and equality team, and Catriona Ogilvy, founder and chair of charity The Smallest Things.

We discuss:

Catriona's own lived experience of having a baby in neonatal care and why the law needed to change;
Who is eligible for neonatal care leave and how neonatal care is defined by the legislation;
The timing of neonatal care leave and an explanation of "Tier 1" and "Tier 2" leave;
Pay during neonatal care leave and eligibility requirements;
How partners may use neonatal care leave in addition to other forms of family-friendly leave; and
Whether the new legislation goes far enough in supporting people.

Join us for part 2 next time when we'll discuss the practicalities of implementing neonatal care leave.

For in-depth information and support, please visit The Smallest Things or Working Families, the UK's national charity for working parents and carers.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

The Work Couch: What to expect at an employment tribunal: appearing as a witness, with Kim Wright and Joseph England

Wed, 19 Mar 2025 11:00:00 Z

In the first instalment of our series on what to expect at an employment tribunal, host Ellie Gelder is joined by Kim Wright, senior associate, from our employment , engagement and equality team, and Joseph England, a barrister from 3PB Chambers who specialises in employment law, to talk about appearing as a witness. We discuss:

How employment tribunals differ from civil courts;
Who may be required to appear as a witness;
Preparation of witness statements;
What to expect on the day of the hearing itself;
Tricky but common scenarios, including: illness, travel disruption, and giving evidence from overseas; and
Key dos and don'ts when giving evidence at, or attending, a virtual hearing.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

Employment Rights Bill: 10 key amendments explained

Thu, 13 Mar 2025 14:00:00 Z

On 5 March 2025, the government published a 200 page amendment paper containing a wide range of amendments to the draft Employment Rights Bill (the Bill). A number of the amendments follow the government's response to various consultations on some of the most significant proposed reforms.

Below, we highlight 10 of the key amendments and what they mean for employers.

1. Zero hours and agency workers

One of the most significant reforms proposed by the Bill seeks to address the 'one-sided flexibility' of zero or low hours contracts. Under the Bill's proposals, workers who meet certain criteria will be offered guaranteed hours in line with the number of hours regularly worked after the end of each reference period - if this is what they want. Workers will also have the right to reasonable notice of shift changes, with employers required to pay them compensation for any shifts cancelled at short notice.

Previously, agency workers were excluded from these proposed measures. However, this gap in protection will be closed, with the amendment paper confirming that the new measures will extend to agency workers (Gov NC32, p.1). The amendment paper also clarifies that:

It is the end hirer's responsibility to make a guaranteed hours offer to a qualifying agency worker (Gov NS1, p.130). However, it also states that regulations may impose obligations on agencies or other entities in certain scenarios (Gov NS1, p.143).
Both the agency and the end hirer will have responsibility for providing a qualifying agency worker with reasonable notice of shifts (Gov NS1, p.144) and, in the event of a successful claim in the employment tribunal, the tribunal will have the power to apportion liability according to each party's responsibility in the case (Gov NS1, p.148).
The agency will have responsibility to pay any short notice cancellation or curtailment payments to agency workers (Gov NS1, p.148), but will be able to recoup from the end hirer the cost of any short notice cancellation, movement or curtailment payments where they have pre-existing arrangements with hirers (Gov NS1, p.154).

The exact nature of the obligations, for example how the agency worker should receive notification of shift changes or cancellations, will be subject to further debate, and once agreed, will be fixed by secondary legislation.

It is important to note that the amendment paper enables employers and trade unions to agree, by way of a collective agreement, to expressly exclude the rights and obligations in relation to guaranteed hours and reasonable notice of shifts and to expressly replace them with new terms, provided that such terms are incorporated into the worker's contract (Gov NC33, p.4).

In response to stakeholders' concerns about genuinely temporary or seasonal work, the government acknowledged in its response to the consultation on the application of zero hours contracts measures to agency workers that it would not be appropriate to require businesses to provide qualifying workers with a permanent contract and confirmed that businesses will be able to offer temporary contracts where there is a 'genuine temporary work need'. Exactly what constitutes a temporary work need will be subject to consultation and secondary legislation.

2. Collective redundancy consultation

Currently, the Trade Union and Labour Relations (Consolidation) Act 1992 provides that where the employer is proposing to make 20 or more people redundant at one establishment within a 90-day period, it must consult with appropriate employee representatives and provide notification at least 30 days before the first redundancy takes effect. If the employer is proposing to make 100 or more people redundant, the employer has to provide the notification at least 45 days before the first redundancy takes effect.

The Bill, as initially drafted, proposed that the collective consultation obligations should apply regardless of whether the redundancies are taking place at one establishment or not. This would have had huge consequences for employers, particularly large multi-site employers, potentially resulting in every proposed redundancy triggering the obligation to consult collectively.

In response to these concerns, the amendment paper (Gov 91, p.91) restores the phrase "at one establishment" so that the obligations will be triggered if either:

(i) there are 20 or more people being made redundant at one establishment; or

(ii) another threshold is reached, where employees are being made redundant at more than one establishment.

The details of the new threshold, which will be more than 20, will be confirmed in future regulations, for example as a specified percentage of employees (Gov 93, p.92).

The amendment paper also clarifies that employers will not be required to consult with all of the appropriate employee representatives together, or to undertake the consultation with a view to reaching the same agreement with all of the appropriate employee representatives (Gov 90, p.90).

The amendment paper provides that the government will extend the maximum protective award period, which applies in successful claims for breach of collective redundancy obligations, from 90 days to 180 days' pay (Gov NC34, p.6). According to the government response to the consultation on strengthening remedies against abuse of rules on collective redundancy and fire and rehire, the doubling of the protective award is "to ensure that employers will not be able to deliberately ignore their obligations", adding that "it should never be the case that it is financially beneficial to do so".

Employment tribunals will continue to have discretion to vary the length of the protected period, up to a maximum of 180 days, as they consider just and equitable in all the circumstances, having regard to the seriousness of the employer’s actions, as well as any mitigating factors.

The government's response to the consultation on strengthening remedies against abuse of rules on collective redundancy and fire and rehire also confirms that the previous proposal to make interim relief available in unfair dismissal claims relating to collective redundancy will not proceed, acknowledging that this would place too much of a burden on businesses and would be difficult to implement.

The government will issue further guidance for employers on best practice compliance with their collective redundancy consultation obligations.

3. Fire and re-hire

In a bid to clamp down on the so-called practice of "fire and re-hire", where employers use the threat of dismissal with neither proper discussion nor engagement to impose detrimental changes on employees, the Bill provides that it will be automatically unfair to dismiss an employee because:

(i) they failed to agree to an alteration to their contract of employment; or

(ii) the employer intends to replace or re-engage them under an amended contract to perform substantially the same duties as before.

Dismissal due to a failure to agree to a contract variation will only be fair if:

the reason for the variation was to eliminate, prevent or significantly reduce, or significantly mitigate the effect of, any financial difficulties which would affect the employer's ability to carry on the business as a going concern, and
the employer could not reasonably have avoided the need to make this variation.

Simply enhancing business efficiency does not meet this requirement; there must be a 'genuine lack of alternatives', setting a high bar for justification. In reality, therefore, the exception is likely to apply only in rare and limited cases.

The government's response to the consultation on strengthening remedies against abuse of rules on collective redundancy and fire and rehire confirms that the government's previous proposal to make interim relief available in unfair dismissal claims relating to fire and re-hire will not proceed, acknowledging that this would place too much of a burden on businesses and would be difficult to implement.

4. Fair work agency

The Bill proposes to create an enforcement agency called the Fair Work Agency (FWA), which will bring together existing state enforcement functions and over time take on enforcement of a wider range of employment rights.

The FWA, which will have rights of enforcement relating to unpaid holiday pay, national minimum wage and statutory sick pay, will aim to resolve issues upstream by supporting employers that want to comply with the law, but it will also have strong powers to investigate and take legal action against businesses that flout the law to level the playing field for compliant businesses. The Bill requires the Secretary of State to establish an advisory board, with equal representation from businesses, trade unions and independent experts, to advise the FWA.

The amendment paper sets out the FWA's extensive, and unparalleled, powers. These include:

the power to bring any employment tribunal claim in place of a worker who appears not to be bringing the claim themselves (NC57, p.24);
the ability to assist in legal proceedings (NC58 - NC59, p.25-27); and
the power to recover costs of enforcement (NC60, p.27).

Employers will need to track further developments on the FWA's increasingly prominent role in employment law matters, following the government's indication that further enforcement powers will be added as the Bill progresses. These include powers to issue civil penalties and to order employers to compensate workers, based on existing powers in the National Minimum Wage Act 1998.

5. Trade union rights

The Bill creates a framework to modernise industrial relations and strengthen trade union rights, which, in the government's view, are restricted unnecessarily by the existing legislation, the Trade Union Act of 2016, which was brought in by the previous Conservative government.

One of the many proposed reforms is facilitating trade union access to the workplace for the purposes of meeting, representing, recruiting, or organising workers, whether or not members of a trade union, or to facilitate collective bargaining. The amendment paper explicitly adds "supporting a trade union member with an employment-related matter" as an access purpose. The amendment paper has confirmed that, as well as physical access, this also extends to cover virtual access. Further detail on what virtual access entails, such as its definition and the functions it would cover will be set out in secondary legislation.

The amendment paper sets out numerous other amendments in relation to trade union rights and industrial action, including:

enabling a quicker route to achieve an access agreement by permitting a single person at the Central Arbitration Committee (CAC) to decide on whether access should be allowed, provided the proposed access agreement fulfils prescribed terms, the details of which will be set out in secondary legislation (if such prescribed terms are not met, the CAC panel would sit in its normal tripartite manner) (Gov 184, p.112);
providing a framework via secondary legislation for the CAC to issue fines to employers who fail to comply with the right to access;
reducing the amount of information that unions are required to include in ballot and industrial action notices (NC42, p.11-12);
extending the industrial action mandate expiration from the current six to 12 months (NC43, p.12);
in respect of notice to employers of industrial action, amending the notice period to ten days, rather than seven days (Gov 201, p.120);
extending the application of provisions and the Code of Practice on access and unfair practices during recognition and derecognition ballots to cover the entire recognition process (NS2, p.155-196);
requiring employers to share the number of workers in a proposed bargaining unit within ten working days of the statutory application for recognition being submitted, after which employers would be prevented from altering that number in relation to statutory recognition applications;
setting a maximum of 20 working days for an access agreement to be agreed and bring this forward to the point where the CAC accepts the union’s recognition application - if no agreement is reached, the CAC to adjudicate and issue an order requiring access to the workforce;
changing legislation to make it easier for unions to win cases where an unfair practice has occurred, and requiring unions to show the CAC only that the unfair practice has occurred and not how it influenced workers' votes;
extending the time limit when a complaint against an unfair practice can be made after the closure of the ballot; and
enabling independent unions to apply for recognition where an employer has voluntarily recognised a non-independent union, following receipt of a formal request for voluntary recognition by the independent union.

According to the government's response to the consultation on creating a modern framework for industrial relations, it plans to consult further on:

repealing the 50% industrial action ballot turnout threshold via regulations;
delivering e-balloting and workplace balloting for trade union ballots; and
reducing the admissibility requirements for the statutory trade union recognition ballot process.

6. Statutory sick pay

Under the Bill's proposals, statutory sick pay (SSP), which is the minimum amount that employers are required to pay their employees when they are off sick, will be available to all employees from the first day of their sickness.

Following the outcome of this consultation, the amendment paper states that:

the weekly rate of SSP will be the lower of £118.75 (in line with the new National Living Wage changes) and 80% of an employee’s weekly earnings (Gov 80 and 81, p.84-85).
where an employer has failed to pay a worker an amount due to the worker under a provision of legislation listed in Part 1 of Schedule 5 (for example statutory sick pay), the Secretary of State may give the employer a notice of underpayment, which can cover a period of up to six years, requiring the employer to pay the amount due (Gov NC44, p.13).
within three months of the Bill becoming law, the Secretary of State must consult on how the government can best support small employers with SSP costs (NC71, p.70).

7. Maternity and pregnancy

In a bid to strengthen protection for workers who are pregnant, on maternity leave, or are in the six month period of their return from maternity leave, the Bill proposes to introduce regulations to prohibit employers from dismissing or making redundant such employees. The protection will also extend to employees who are on, or are returning from, adoption or shared parental leave.

The amendment paper provides that regulations will prescribe the notices that should be given, evidence to be produced, and other procedures to be followed by employees and employers, as well as the consequences of failing to comply with these procedures (Gov 87, p.89).

8. Umbrella companies

Umbrella companies are employment intermediaries that employ temporary workers on behalf of recruitment agencies and end client businesses. In contrast to employment agencies and employment businesses, they are generally unregulated.

Typically, they employ workers under contracts of employment and are responsible for paying individuals and deducting income tax and National Insurance contributions (NICs). As employers, they are also responsible for providing employment rights.

However, there are concerns that workers are not always clear on whether or not they are entitled to employment rights and on who is responsible for providing such rights, with some umbrella companies being used to evade obligations to provide employment rights. There is also evidence of widespread tax non-compliance.

In its response to the consultation on tackling non-compliance in the umbrella company market, the government has confirmed that it will legislate, via amendments to the Bill, to:

define umbrella companies;
allow for the regulation of umbrella companies; and
bring them into the scope of the Employment Agency Standards Inspectorate's – and subsequently, the Fair Work Agency's – remit.

Umbrella companies will be regulated in a similar way to the existing Conduct Regulations. There is a statutory duty to consult before making any amendment to the Conduct Regulations, and the government will consult again prior to any amendments to these.

Addressing the problem of tax avoidance, and as first announced in the Autumn budget 2024, where an umbrella company is used in a labour supply chain to engage a worker, the government will bring forward legislation to move the responsibility to account for PAYE from the umbrella company that employs the worker, to the recruitment agency that supplies the worker to the end client. Where there is no agency in a labour supply chain, this responsibility will sit with the end client. This will take effect from April 2026 (see HMRC's response to the consultation on tackling tax non-compliance: umbrella company market for further information).

9. Parental bereavement leave and pregnancy loss

Currently, mothers and their partners who experience a pregnancy loss are entitled to two weeks of statutory parental bereavement leave but this is only available in the case of a stillbirth, where the loss occurs after 24 weeks of pregnancy.

By amending s.80EA(5) of the Employment Rights Act 1996, the amendment paper confirms that the right to such bereavement leave will extend to parents who experience miscarriages, ie where the loss occurs before 24 weeks of pregnancy (Gov 85, p.87).

10. Flexible working

Currently, employees have the right only to request flexible working from day one of their employment and the employer can refuse a request where it considers that one or more of the existing eight statutory business reasons applies.

The Bill proposes to make flexible working the default from day one for all employees, with employers required to accommodate this "as far as is reasonable". If the employer refuses an application for flexible working, it must state the ground(s) for refusal and explain why it considers that it is reasonable to refuse the application on that ground(s).

The amendment paper introduces a new requirement on the government to report on employers' compliance with the flexible working duties set out in the Bill (NC27, p.50).

Regulations are required to detail exactly how the strengthened flexible working arrangements will work in practice.

What's next?

The Bill is now at report stage and had a third reading on 11 and 12 March 2025. Amendments can be made to the Bill at this stage.

While the majority of these reforms are unlikely to become law until at least 2026, we expect the Bill, including the amendments detailed above, to continue to evolve and alter over the coming months.

Therefore, as well as familiarising themselves with the details of the Bill, employers will also need to keep a watchful eye on the Bill's progress and the wording of upcoming secondary legislation, which will implement the reforms.

All information is correct at the time of publication.

The Work Couch: Data protection and HR-related challenges (Part 2), with Jon Bartley and Helen Yost

Wed, 05 Mar 2025 09:31:00 Z

In the second part of this series on data protection, host Ellie Gelder is joined once again by Jon Bartley, partner and Helen Yost, senior associate, both from our data advisory team to discuss data protection compliance in the employment context, and how to successfully navigate the key risk areas. We discuss:

Why data protection is such a hot topic for employers now;
Data subject access requests;
Potential consequences of getting data protection wrong;
Top tips for avoiding the worst consequences; and
What's on the horizon for data protection law?

To stay up to date with all the latest in data protection law, please subscribe to our monthly newsletter Data Dispatch.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release. You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

The Work Couch is not a substitute for legal advice.

The Work Couch: Preventing sexual harassment - is your business compliant?

Wed, 19 Feb 2025 11:47:00 Z

Host Ellie Gelder is joined by Charlotte Reid, senior associate, to explore the ground-breaking changes to the law on preventing sexual harassment of employees, which came into force on 26 October 2024, and further important changes on the horizon.

They discuss:

The various types of conduct that the term 'sexual harassment' can include;
Legislative reforms introduced by the Worker Protection (Amendment of Equality Act 2010) Act 2023 and what they mean for employers;
Proposals under the Employment Rights Bill to: (i) further boost the obligation on employers to prevent sexual harassment, (ii) include third party harassment in the Equality Act 2010 and (iii) introduce changes to the rules on whistleblowing to protect those who call out sexual harassment;
The term 'reasonable steps' and the practical ways for employers to comply;
How the reforms align with the broader regulatory landscape and increasing scrutiny into ESG credentials, for example, in the financial services sector; and
The current pushback against DEI efforts in certain parts of the world and how this may affect DEI initiatives in the UK.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

The Work Couch: Data protection and HR-related challenges (Part 1), with Jon Bartley and Helen Yost

Wed, 05 Feb 2025 11:30:00 Z

In the first of a two-part series, host Ellie Gelder is joined by Jon Bartley, partner and Helen Yost, senior associate, both from our data advisory team to discuss data protection compliance in the employment context, and how to successfully navigate the key risk areas. We discuss:

Why data protection is such a hot topic for employers now;
Examples of particularly significant enforcement in relation to employee data;
Overview of the key data protection principles;
Sensitive/special category data in the employment context;
Data protection in recruitment and during the employment life cycle; and
What's in the pipeline for data protection compliance?

Data Download

Our Data and Privacy Group will be hosting our exclusive conference, Data Download, on 27 February 2025, with sessions from 2pm. The RPC specialist data teams and the ICO will examine key data protection challenges, from compliance to managing cyber incidents and disputes. Attendees will gain practical insights through an immersive case study, hear directly from Padi Dolatshahi, Principal Lawyer at the ICO, and explore upcoming developments in 2025—all while networking with leading professionals in the field. For further details and to RSVP, please click here.

To stay up to date with all the latest in data protection law, please subscribe to our monthly newsletter Data Dispatch.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release. You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

The Work Couch is not a substitute for legal advice.

The Work Couch: What's on the horizon for employment law in 2025?

Wed, 22 Jan 2025 12:00:00 Z

We kick off Season 3 with a look ahead to 2025, we will explore the employment law changes on the horizon as well as what you can be doing to prepare.

Ellie Gelder is joined by Kelly Thomson, partner and RPC's ESG lead, and trainee solicitor in our employment team, Mimosa Canneti, to discuss:

Strengthened trade union rights proposed by the Employment Rights Bill, including those relating to:

Blacklisting;
Strike action;
Rules for statutory union recognition;
Access rights; and
Informing employees of their right to join a union
Extension to time limits for bringing employment tribunal claims
Creation of a Fair Work Agency to enforce certain rights
Other changes on the horizon

To hear more about the reforms proposed by the Employment Rights Bill, including unfair dismissal protection, flexible working, "fire and rehire" restrictions and much more, listen to our previous episode here with partner and head of RPC's Employment, Engagement and Equality team Patrick Brodie.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

The Work Couch: Disability inclusion at work (Part 3): What does genuine accessibility look like? with Samantha Renke

Tue, 03 Dec 2024 14:19:00 Z

Content warning: The following content deals with some challenging themes around disability discrimination.

Given the theme of this year's Disability History Month is disability, livelihood and employment, the Work Couch takes a deep dive into disability inclusion at work in a three-part mini-series with actress, writer, broadcaster and disability rights campaigner, Samantha Renke.

In part three, which coincides with International Day of Persons with Disabilities, Sam talks to host Ellie Gelder about:

The business case for universal accessibility;
Adopting a joined-up approach to internal and external accessibility, for example in the retail sector;
Understanding the different types of barriers (physical, information and communication, and attitudinal);
Adopting a holistic approach to accessibility; and
Examples of effective accessibility and allyship at work.

* Please note these podcasts will not run on Internet Explorer

To access further support or information, you may wish to visit Scope or Disability Rights UK.

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release. You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

The Work Couch is not a substitute for legal advice.

Disability inclusion at work (Part 2): Narratives, reasonable adjustments, and the business case for accessibility, with Samantha Renke

Wed, 27 Nov 2024 10:30:00 Z

Content warning: The following content deals with some challenging themes around disability discrimination.

In part two, Sam talks to host Ellie Gelder about:

problematic narratives around disability;
the financial pressures facing the disability community;
making reasonable adjustments for employees with disabilities;
unconscious bias and intersectional nuances; and
why disability inclusion should be a priority for the C-suite and business leaders.

Join us for the concluding part to this mini-series next week when we will look at what genuine accessibility at work looks like. You can also listen to Disability inclusion at work (Part 1): The lived experience, with Samantha Renke here.

* Please note these podcasts will not run on Internet Explorer

To access further support or information, you may wish to visit Scope or Disability Rights UK.

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release. You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

The Work Couch is not a substitute for legal advice.

The Work Couch: Disability inclusion at work (Part 1): The lived experience, with Samantha Renke

Wed, 20 Nov 2024 11:00:00 Z

Content warning: The following content deals with some challenging themes around disability discrimination.

In part one, Sam talks to host Ellie Gelder about her own lived experiences and insights as a disabled woman living in a disabling world. She also shares her thoughts on the social, medical and legal models of disability, as well as the meaning of the terms ableism and disabilism, and how they can arise in everyday situations.

Join us for part 2 next week when we will look at the narrative around disability, the financial pressures facing the disability community, making reasonable adjustments, and why disability inclusion should be a priority for the C-suite and business leaders.

* Please note these podcasts will not run on Internet Explorer

To access further support or information, you may wish to visit Scope or Disability Rights UK.

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release. You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

The Work Couch is not a substitute for legal advice.

The Work Couch: How to tackle seven tricky disciplinary issues, with Joanna Holford

Wed, 06 Nov 2024 15:10:00 Z

Handling disciplinary issues in the wrong way can lead to workplace conflict, legal risk and commercial headaches for employers. So what are the most tricky disciplinary issues that commonly arise, and how can employers navigate them?

Host Ellie Gelder is joined by Joanna Holford, senior associate in RPC's employment, engagement and equality team, who shares her top tips on handling the following disciplinary issues:

The employee raises a grievance partway through the disciplinary process.
The employee commences a period of sickness absence during the disciplinary process.
Adjusting the disciplinary process for an employee who has a disability.
The alleged behaviour is out of character for the employee concerned.
The disciplinary allegations involve a criminal element.
Refusal by the employee to cooperate with the employer’s disciplinary process.
Reluctant or uncooperative witnesses in a disciplinary investigation.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release. You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

The Work Couch is not a substitute for legal advice.

The Work Couch: Employment Rights Bill: What employers need to know, with Patrick Brodie

Wed, 23 Oct 2024 11:00:00 +0100

On 10 October 2024, 100 days - or thereabouts - since Labour gained power, the government published the first draft of the Employment Rights Bill, a Bill which businesses and employment lawyers have been eagerly anticipating, and which commentators are saying heralds the most significant and far-reaching reform to employment rights in over 40 years.

We await further detail on how each of the employment law reforms (28 in total) will operate in practice, and we expect the Bill to evolve and alter as it progresses through parliament and enters the consultation phase. However, to provide an initial overview of seven of the most ground-breaking reforms, host Ellie Gelder is joined by Patrick Brodie, partner and head of RPC's employment, engagement and equality team.

They discuss:

Removal of the two-year qualifying period for ordinary unfair dismissal protection;
Requiring employers to allow flexible working "where practical";
Changes to employer liability for harassment of its employees, including amendments to the forthcoming new proactive duty to prevent sexual harassment of employees during the course of their employment, which is coming into force on 26 October 2024;
New restrictions on employers using "fire and rehire" measures to impose detrimental changes to employees' terms and conditions;
Widening the scope of the collective redundancy consultation obligations set out in s.188 of the Trade Union and Labour Relations (Consolidation) Act 1992;
Family-focused reforms, including changes to eligibility for paternity leave, ordinary parental leave, statutory sick pay and bereavement leave; and
Complex reforms to the law on zero hours contracts and guaranteed working hours.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release. You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

The Work Couch is not a substitute for legal advice.

The Work Couch: Black maternal experiences and supporting colleagues, with Shanice Holder, Tinuke Awe, Clo Rebecca Abe and Tonye Alagoa

Wed, 09 Oct 2024 14:16:00 +0100

As we celebrate Black History Month, the theme of which this year is reclaiming narratives, and as we also approach Baby Loss Awareness Week, the Work Couch is devoting a special episode to a very important but perhaps rarely discussed topic: black maternal experiences and the impact on employees and their families.

Guest host, Shanice Holder, associate in our professional and financial risks team and member of our ethnicity community, is joined by Tinuke Awe and Clo Rebecca Abe from charity Five X More, named after the MBRRACE report, which in 2018 found that black women are five times more likely to die in childbirth than white women. This shocking and heartbreaking statistic drove Tinuke and Clo to found their charity to campaign for better maternal outcomes for black women and birthing people. And also joining the conversation, Tonye Alagoa, associate in RPC's risk and compliance team, who shares his experiences as the partner of a black woman.

They discuss:

Commonly reported experiences of black women during pregnancy, labour and the post-natal period;
The complex and multi-faceted reasons behind the statistics, including the role of stereotypes, systemic issues, gaps in knowledge, and misinformation;
How black women and their partners can prepare to advocate effectively during the pregnancy, labour and afterwards;
How employers can support colleagues affected by these issues; and
The importance of raising awareness across the workforce and creating safe spaces for people to talk about their experiences.

To access further support and information, you may wish to visit: Five X More, AIMS or Birthrights.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release. You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

The Work Couch is not a substitute for legal advice.

Neurodiversity at work (Part 3): How to implement effective neuro-inclusion

Wed, 18 Sep 2024 10:07:00 +0100

Ahead of ADHD awareness month in October, we are devoting our latest deep-dive mini-series to the topic of neurodiversity. Given 15 to 20% of the UK population are neurodivergent - and more than half of Gen Z identify as "definitely" or "somewhat" neurodiverse - it is essential for employers to understand how neurodiversity interacts with, and affects, employment law and the world of work.

In the concluding part of our mini-series, we discuss how employers can implement effective neuro-inclusion at each stage of the employment life cycle. Host Ellie Gelder is joined by Russell Botting, neuro-inclusion services director and Steve Hill, chief commercial officer, who are both from Auticon, and RPC's own Victoria Othen, who is a consultant lawyer in our employment, engagement and equality team.

We discuss:

Why neurodiversity is so important to the C-suite and to an organisation's commercial success and ESG strategy;
Practical ways of fostering a neuro-inclusive culture at work, for example inclusion passports during the onboarding process;
Talent attraction, interview techniques and training for interviewers;
Adjusting performance criteria and sickness absence triggers;
Examples of effective wellbeing measures to support neurodivergent colleagues;
Coaching and transitional support on promotion; and
Neuro-inclusive reorganisations.

You can listen to previous episodes of our mini-series on Neurodiversity at work here (Part 1: Myths, misconceptions and the lived experience) and here (Part 2: The law, HR considerations and wellbeing). We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

Neurodiversity at work (Part 2): The law, HR considerations and wellbeing, with Kelly Thomson and Victoria Othen

Wed, 11 Sep 2024 09:20:00 +0100

In part two, host Ellie Gelder is joined by Kelly Thomson, partner and RPC's ESG strategy lead, and Victoria Othen, consultant employment lawyer at RPC, to discuss the legal, HR and wellbeing considerations in relation to neurodiversity at work.

Looking at each stage of the employment life cycle, we discuss:

Neurodivergence and the legal definition of disability;
How different types of disability discrimination may arise;
Recruitment and the duty to make reasonable adjustments for neurodivergent applicants;
How performance management can trigger legal risks;
The interplay between neurodivergence and mental health;
Promotion and progression of neurodivergent talent and potential challenges; and
Managing a reorganisation where neurodivergent workers are at risk of redundancy.

Join us for part 3 next week when we will look at how to implement effective neuroinclusion at work. And if you missed Neurodiversity at work (Part 1): Myths, misconceptions and the lived experience, you can listen here.

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

Neurodiversity at work (Part 1): Myths, misconceptions and the lived experience, with Ashlea Cromby, Tracey West, Alice de Coverley and Victoria Othen

Wed, 04 Sep 2024 14:43:00 +0100

Ahead of ADHD awareness month in October, we are devoting our latest deep-dive mini-series to the topic of neurodiversity. Given 15 to 20% of the UK population are neurodivergent - and more than half of Gen Z identify as "definitely" or "somewhat" neurodiverse - it is essential for employers to understand how neurodiversity interacts with, and affects, employment law and the world of work.

In part one, we explore the lived experience of neurodivergence and dispel some common myths and misconceptions. Host Ellie Gelder is joined by a panel of four special guests: Ashlea Cromby and Tracey West of Auticon, Alice de Coverley of 3PB Chambers and RPC's own Victoria Othen (further details below).

We discuss:

Terminology;
The challenges of gaining a diagnosis;
Associated difficulties post-diagnosis – in Alice's words: "It's like learning the plot twist at the end of the book and then re -reading that book with a new and fresh understanding of who you are and who you have always been";
How neurodivergence affects a person's day-to-day experience at work;
Masking neurodevelopmental conditions;
Requesting reasonable adjustments and examples of supportive measures; and
How our guests perceive the interaction between neurodivergence and disability.

Our panel

Ashlea Cromby, neuroinclusion advisor and Tracey West, careers coach, from Auticon, a global IT consulting business and social enterprise that exclusively employs adults on the autism spectrum in permanent roles as IT consultants.
Alice de Coverley, specialist education equality and public law barrister from 3PB Chambers. As an ADHDer herself, Alice is treasurer and trustee of Neurodiversity in Law. She's passionate about advancing the representation of all neurodivergent lawyers and recently won the Legal 500 ESG 2024 Disability Neurodiversity Bar Champion of the Year Award.
RPC's own Victoria Othen, employment law consultant who frequently advises employers on disability discrimination claims, an increasing number of which involve neurodivergence.

Join us for part 2 next week when we will look at the law, HR considerations and wellbeing in relation to neurodiversity.

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

Myth busting and moving the dial in DEI

Tue, 20 Aug 2024 09:47:00 +0100

During this particular session, common myths and misconceptions surrounding Diversity, Equity and Inclusion (DEI) were discussed and different sides of various issues were dissected, drawing out the nuances of seemingly polarised positional statements. Below, we address a handful of these myths, offering a balanced perspective on the complexities of DEI and exploring how to drive meaningful progress in our organisations.

Myth 1: "We have too many 'DEI Experts'"

It is true that DEI roles have become one of the most common on LinkedIn, prompting some to question whether credible expertise must require more than just a connection to a particular characteristic. This (perceived) proliferation of experts can also lead to an "us versus them" mentality which is both disruptive and divisive. When DEI is seen as the sole responsibility of a few, it lets the rest of us off the hook. After all, DEI should be part of everyone's job if we are going to make meaningful progress in our organisations.

However, this doesn’t mean there is no place for true DEI experts. Quite the opposite. While it’s crucial for everyone to contribute to DEI within their roles, subject-matter experts are critical for driving progress and ensuring that initiatives are impactful. DEI expertise is not about just making noise or disrupting for disruption's sake, but about understanding the different barriers people face and finding ways to reduce and remove them. Every employee contributes to financial hygiene and performance but a business still needs a CFO to steer the ship. Similarly, we need DEI experts to guide our efforts effectively and collectively.

Myth 2: "There's a cultural crisis" versus "The so-called 'Culture Wars' are overblown"

The concept of "culture wars" often gives the impression of an unbridgeable gulf between opposing camps. Take some of the rhetoric around trans rights and gender-critical feminism, for instance—this fundamentally human issue has been so weaponised in some quarters that it could seem impossible for these groups to find common ground. Yet, many individuals who are personally and passionately aligned to a position on this are, nonetheless, uninterested in conflict and not focused on the polarising and narrow issues that may dominate populist coverage.

Rhetoric on social media can amplify these divisions, making it seem like everyone is entrenched in opposing sides. Even terms like "woke" are often weaponised, despite the fact that, at its core, being "woke" simply means being more aware of the challenges others face—something we teach our children and should, in civilised society, surely be uncontroversial.

However, it's important not to dismiss or minimise the real dichotomies that do exist or the complexity of these challenges. The Reykjavik Index for Leadership reveals a troubling trend: younger people are less likely to believe women are cut out for leadership than older generations. Civil liberties have been rolled back in various parts of the world, and recent events have laid bare the continued rise in far-right activity. These issues inevitably spill into the workplace, presenting human, cultural and legal challenges for employers and employees alike. And as many businesses and leaders have learned, staying silent on pressing social issues of the day is often not a neutral position.

Myth 3: "What about men?"

There's a growing concern that men, particularly white men, are being excluded from DEI conversations. The assumption that men don't face barriers and therefore have no place in DEI discussions is wrong and alienating. As just one example, men's mental health is in crisis and excluding men from DEI initiatives might mean missing out on creating safe spaces for vulnerability and sharing. In relation to women's social and economic advancement, many men want to be allies but don't feel invited into the conversation or are fearful of mis-stepping. Having such a large (and often, senior and influential) population excluded from DEI discussions is counter-productive as that very group could be a powerful force for change.

That said, we are nowhere near gender parity and there is much work to be done in advancing women's rights. The global gender pay gap is projected to take 136 years to close. There are fewer women CEOs among Fortune 500 companies (5%) than there are men named James (5%). While appropriately focusing on specific marginalised groups is essential, it's also crucial to recognise that privilege varies on an individual basis—whether it's based on gender, race, or other factors—and acknowledging this, and the reality of intersectional identities, is key to understanding the structural inequalities within which we all operate.

Myth 4: "After years of focus, surely DEI is now embedded" versus "We talk and talk but nothing actually changes"

There is a sense of frustration held by many that, despite years of focus on DEI, in some ways little has changed. The Chartered Management Institute’s research highlights that those who traditionally benefit from DEI programmes may feel that all the talk hasn't led to significant action (ie the amount of noise belies the extent of progress), while others believe that all this discussion must mean progress is being made (ie noise must mean progress).

The global gender pay gap is a prime example. Despite years of discussion and focus, the gap widened significantly during the COVID-19 pandemic, with two years setting progress back by an entire generation and demonstrating the fragility of the gains made. This shows that talking is not enough—we need continued, laser-focused action. And this applies across the whole DEI piste if we are to make sustainable change for future generations.

Yet, there has been critical progress well worth acknowledging. A decade ago, mental health was rarely discussed at work, but today it’s a mainstream topic in many workplaces, with wellbeing strategies becoming a norm. This year’s MBS research shows that retail leadership teams have become significantly more diverse over the last three years, with female representation at the executive committee and board levels improving by nearly 30% since 2021. DEI is a continuous journey without a silver bullet, requiring consistent action, structural innovation and micro-practices that collectively move the dial.

Summary: 10 Micro Practices to move the DEI dial

Identify any myths built into your current DEI programs.
Ensure everyone on your team knows how to run an inclusive meeting.
Have an answer to the question: “DEI benefits me because…?”
Learn about the experiences of people in a group to which you don’t belong.
Expand your echo chamber by learning about views you don’t agree with.
Show vulnerability at work; it will be reciprocated.
Be the kind of person who speaks others’ names in rooms that matter.
Know at least three practical ways you are an active ally at work.
If you think you’re pro-DEI, assess how diverse your personal circle is.
Channel Ana from Frozen: “Just do the next right thing…take a step…step again.”

By addressing these myths and incorporating these micro practices, we can continue to move the dial in DEI and create workplaces that are truly inclusive for everyone.

This article was first published by Business Reporter on Aug. 19

The Work Couch: Bonus Live episode: Exploring the cost of untapped talent, with Tskenya-Sarah Frazer, Trevor Sterling and Mark Ash

Wed, 31 Jul 2024 10:00:00 +0100

Trigger warning: The following content deals with some challenging themes including racism, crime, and alcohol and drug addiction.

In our first live episode, recorded before a special audience, we were thrilled to kick off the British Retail Consortium's second annual diversity and inclusion conference held in partnership with RPC.

Host Ellie Gelder was joined by three inspirational guests:

Trevor D Sterling, Senior Partner at Moore Barlow, first black Senior Partner in a top 100 UK law firm and founder of social mobility platform U-Triumph;
Tskenya-Sarah Frazer, Entrepreneur, Author and Diversity & Inclusion Consultant, Founder and CEO of TSKENYA Footwear and Pride of Britain award winner; and
Mark Ash, who from being unable to read or write, to sleeping rough after over a decade of addiction, now supports others as a Lived Experience Coordinator at Forward Trust.

It was a privilege to hear our guests share such moving stories. Listen to the full episode here:

For some highlights of the conversation, including our guests' lived experiences of social barriers to employment, how to overcome those barriers, and their key takeaways for employers and colleagues, watch these short videos:

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

Supporting and retaining Gen Z talent (Part 2): Work-life balance, communication and wellbeing, with Rose Sellman-Leava and Laura Verrecchia

Wed, 24 Jul 2024 10:52:00 +0100

Following on from our previous episode on supporting and retaining senior talent, we explore how employers can best support and retain Gen Z talent.

In part 2, Ellie Gelder is joined once again by Rose Sellman-Leava, Director and Co-Founder of Inclusive Futures, a not-for-profit organisation empowering students from underrepresented groups and disadvantaged backgrounds to enter careers which are right for them, and RPC's Laura Verrecchia, trainee solicitor and resident Gen Z member of the Employment Engagement and Equality team.

We discuss:

The impact of the Covid-19 pandemic on Gen Z talent and how employers can support them overcome these challenges;
The importance of work-life balance and flexible working;
How to provide and receive constructive feedback;
Navigating generational differences in communication styles and preferences; and
Mental health and wellbeing in relation to Gen Z.

You can also listen to part 1 of our mini-series: Supporting and retaining Gen Z talent (Part 1): Myths and opportunities, with Rose Sellman-Leava and Laura Verrecchia.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release. You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

The Work Couch is not a substitute for legal advice.

Employer lessons from teacher's menopause bias win

Wed, 17 Jul 2024 10:00:00 +0100

The dismissal followed her objections to moving to a different school, the prospect of which caused her menopausal symptoms to deteriorate.
So what lessons can be learned from the Shearer case, which is the latest example in a growing crop of menopause-related employment tribunal litigation? And what is on the horizon for menopause support at work following the Labour Party's landslide victory at the general election?

Facts of the Shearer Case

Allison Shearer, who was employed as an English teacher by South Lanarkshire Council, suffered from menopausal symptoms, stress, anxiety and depression. It was agreed by the parties before the tribunal that this amounted to a disability under the Equality Act 2010 at the relevant period.

Following an instruction by the head teacher to move from her current school to another school, Shearer's symptoms worsened. She became extremely anxious at the prospect of relocating to the new school where, she believed, there were high levels of violence, injuries to staff and a culture of blaming staff for being assaulted.

Objecting to the move, Shearer informed human resources during a confidential menopause discussion that she valued staying in her present school as it was a settled workplace where she had supportive colleagues. However, the council insisted that she would have to move and appointed a supply teacher to backfill her existing role.

Subsequently, Shearer commenced a period of long-term sickness absence, during which an occupational health adviser reported that the cause of her work-related stress, which manifested in significantly reduced mood, motivation, concentration and self-confidence, was the instruction to move to the new school. A further occupational health report found that once the "known trigger" — i.e., the instruction to move schools — was addressed, Shearer's symptoms were likely to resolve.

After raising an ultimately unsuccessful grievance, Shearer attended a capability hearing at which she was offered two alternative posts. Shearer was given four working days to consider the offers, and she decided to reject both roles, stating that the first post was "likely to exacerbate her feelings of stress and anxiety." In relation to the second post, which involved working with pupils with "severe and profound learning needs," she felt she did not have the requisite skills or training.

The council terminated her employment on capability grounds and her appeal against dismissal was rejected.

Shearer brought claims in the Scottish employment tribunal for unfair dismissal, a failure to make reasonable adjustments and discrimination arising from a disability.

Reasonable adjustments the employer should have made

In the Glasgow Employment Tribunal's view, the council should have allowed Shearer to continue working in her existing job location because her aggravated symptoms were "inextricably linked" to the instruction to move to the other school. This was confirmed by occupational health reports and "the overwhelming likelihood" that Shearer's sickness absence would have ended if she were allowed to work at any suitable location in any other suitable role.

The tribunal noted that there were other means of covering the post in the other school, as demonstrated by the steps taken by the council to cover the post during Shearer's sickness absence.

The tribunal found that the council had a large pool of around 3,500 teachers from which to source alternative candidates for the post. Moreover, Shearer's original post continued to exist, and she was a suitable candidate to fill that post. The supply teacher who the council had used to backfill Shearer's original post was "inherently movable."

Turning to the suitable alternative positions, the tribunal considered that the council had failed to conduct a search over a reasonable time period and that, had it done so, is likely to have found suitable alternative roles for Shearer.

Tribunal's findings on unfair dismissal and discrimination arising from a disability

The tribunal upheld the unfair dismissal claim, finding that no reasonable employer would have dismissed Shearer without first conducting a reasonable search for alternative employment and giving her a reasonable period of time in which to consider them.

Shearer also succeeded in her claim for discrimination arising from disability, with the tribunal finding a violation of Section 15(1)(a) of the Equality Act 2010 because:

The dismissal constituted unfavorable treatment;
The reason for that treatment was Shearer's absence; and
The absence arose in consequence of her disability.
The tribunal noted the council's undisputed legitimate aims of:
Ensuring good levels of employee attendance;
Delivering education;
Taking account of the negative impact of Shearer's continued absence on the council's resources; and
Adopting a fair and consistent application of the council's absence policy.

However, the tribunal held that the dismissal was disproportionate to those aims in all the circumstances.

Shearer was awarded a total of £61,074.55, which included a medium band award for injury to feelings of £15,000.

What does this mean for employers?

Although this is a first-instance decision by a Scottish employment tribunal and not binding on subsequent decisions, the case is a reminder of how a person's menopausal symptoms can amount to a disability, triggering the employer's duty to make reasonable adjustments once the disability is known or ought reasonably to be known, and protecting the employee from disability discrimination.

This follows the 2021 decision in Rooney v. Leicester City Council,¹ where the

Employment Appeal Tribunal set a legal precedent when it concluded that menopausal symptoms could meet the legal definition of disability for the purposes of Section 6 of the Equality Act 2010. In Shearer's case, it was agreed by the council that she was disabled within the meaning of the legislation.

As a result, when dealing with an employee's sickness absence, performance or capability issues in circumstances where the employee has disclosed, or the employer ought reasonably to know, that they are suffering with menopausal symptoms, managers should consider the employee's symptoms and circumstances carefully, bearing in mind that they may amount to a disability.

Regardless of the legal position on disability, an emotionally intelligent and supportive approach remains paramount.

Even where the disability discrimination provisions are not triggered, for example where menopausal symptoms are intermittent and do not therefore meet the "long-term" requirement in Section 6 of the act, other strands of discrimination protection may come into play, such as sex discrimination and/or age discrimination.

Harassment is also a potential risk, for example where the employer is perceived to turn a blind eye to remarks about a colleague's menopause.

In 2022's Best v. Embark on Raw Ltd.,² an employment tribunal found that a colleague's comments to the claimant about the menopause and the continued pursuit of the topic constituted unwanted conduct, which had the effect of violating the claimant's dignity and of creating a humiliating environment for her at work. Consequently, her claim of unlawful harassment — against the employer — was successful.

What will the Labour Government do to boost menopause support at work?

Menopause workplace support was debated in the House of Commons on May 15,³ with Labour's Anneliese Dodds stating that a Labour government would require employers with 250 or more employees to produce menopause action plans, stating how they will support employees through menopause. Dodds added that the Labour party would also publish guidance for smaller businesses.

Earlier this year, on Feb. 22, the Equality and Human Rights Commission published guidance for employers on menopause in the workplace,⁴ encouraging conversations around menopause and sharing examples of workplace adjustments that employers can make to support their workers and prevent discrimination.

An increasing public awareness of the impact of menopause on people's working lives and potentially strengthened legislative measures on the horizon should prompt all employers to put in place effective and emotionally intelligent measures to support their people affected by menopause.

Such measures should feed into organizations' wider diversity, equity, inclusion and belonging strategies. Where appropriate, this will involve consulting with employee resource groups or communities that are affected by menopause, so that measures are tailored sufficiently to reflect the unique challenges they face in your workplace.

Ultimately, by failing to engage with this issue, a business risks not only losing the valuable talent of people who have often reached the pinnacle of knowledge in their particular field, but it also jeopardizes how clients, suppliers and other stakeholders view the business's brand, as well as worker productivity and general morale.

As the so-called war for talent continues, implementing effective menopause support is not only a quick win but is potentially important in managing legal risk and the right thing to do for half of the working population.

This article was originally published in Law360.

¹Rooney v. Leicester City Council EAT/0064/20 & EAT/0104/21 https://assets.publishing.service.gov.uk/media/615eea73e90e07198108146c/ Ms_M_Rooney_v_Leicester_City_Council_EA-000070-DA__Previously_UKEAT_0064_20_DA__EA-2021-000256-DA_Previously_UKEAT_0104_21_DA_.pdf - see paragraph 53.

²Best v. Embark on Raw Ltd. ET/3202006/20 https://www.gov.uk/employment-tribunal-decisions/ms-l-best-v-embark-on-raw-ltd-3202006-slash-2020.

³https://hansard.parliament.uk/commons/2024-05-15/debates/36ADB0F7-1365-41B2-A8EC-30B0E3D803F6/MenopauseWorkplaceSupport.

⁴https://www.equalityhumanrights.com/guidance/menopause-workplace-guidance-employers.

The Work Couch: Supporting and retaining Gen Z talent (Part 1): Myths and opportunities, with Rose Sellman-Leava and Laura Verrecchia

Wed, 10 Jul 2024 11:15:00 +0100

Following on from our previous episode on supporting and retaining senior talent, we explore how employers can best support and retain Gen Z talent.

Ellie Gelder is joined by Rose Sellman-Leava, Director and Co-Founder of Inclusive Futures, a not-for-profit organisation empowering students from underrepresented groups and disadvantaged backgrounds to enter careers which are right for them, and RPC's Laura Verrecchia, trainee solicitor and resident Gen Z member of the Employment Engagement and Equality team.

In part one, we discuss:

Common myths and misconceptions associated with Gen Z workers;
How employers can future-proof their organisation for the next generation;
Attracting Gen Z talent, including flexible working, social and environmental sustainability, and technology;
Neurodivergence and mental health; and
How a Gen Z values-based working environment can benefit the whole workforce.

Join us again for part two, when we will discuss work-life balance, communication, and wellbeing in relation to Gen Z talent.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

AI (Part 3): The role of emotional intelligence and AI's impact on wellbeing, with Jake Wall and Patrick Brodie

Wed, 26 Jun 2024 13:44:00 +0100

Welcome to The Work Couch, the podcast where we discuss all things employment.To mark London Tech Week 2024 running from 10 -14 June, we are devoting a three-part mini-series to the topic of AI and how it interacts with, and affects, employment law and the world of work.

In our concluding part, host Ellie Gelder is joined once again by two leading experts on AI and the world of work: Jake Wall, policy manager for skills and future of Work at techUK, and Patrick Brodie, partner and head of RPC's employment, engagement and equality team. We discuss:

Integrating emotional intelligence into AI systems, especially in sensitive workplace environments;
The question of whether AI can help humans be more emotionally intelligent and the potential pitfalls;
How AI may impact employees' wellbeing and work-life balance;
Increasing importance for leaders to demonstrate empathy and respect; and
Jake and Patrick's top tips to strike the right balance of complying with existing employment laws and harnessing the benefits of AI technologies.

You can also listen to part 1 of our AI mini-series: AI (Part 1): Impact on litigation, responsible use, and the regulatory landscape, with Olivia Dhein and Joshy Thomas and, also with Jake and Patrick: AI (Part 2): Privacy, bias and discrimination.

* Please note these podcasts will not run on Internet Explorer

All information is correct at the time of recording. For further information, please take a look at RPC's AI guide.

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release. You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

The Work Couch is not a substitute for legal advice.

AI (Part 2): Privacy, bias, and discrimination

Thu, 13 Jun 2024 12:36:00 +0100

Welcome to The Work Couch, the podcast where we discuss all things employment. To mark London Tech Week 2024 running from 10 -14 June, we are devoting a three-part mini-series to the topic of AI and how it interacts with, and affects, employment law and the world of work.

In part two, host Ellie Gelder is joined by two leading experts on AI and the world of work: Jake Wall, policy manager for skills and future of Work at techUK, and Patrick Brodie, partner and head of RPC's employment, engagement and equality team. Jake and Patrick share their insights on the interplay between AI and employment law, including:

Background and purpose of the TUC's AI Bill;
Impact of AI on jobs and skills and the importance of AI competence in the legal sector;
AI ethics policies and impact assessments;
Bias and discrimination risks in recruitment;
Opportunities for AI to remove human biases; and
Potential legal challenges in relation to employee rights and AI.

You can also listen to part 1 of our AI mini-series: AI (Part 1): Impact on litigation, responsible use, and the regulatory landscape, with Olivia Dhein and Joshy Thomas

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

AI (Part 1): Impact on litigation, responsible use and the regulatory landscape

Wed, 29 May 2024 15:00:00 +0100

To mark London Tech Week 2024 running from 10 -14 June, we are kicking off a new mini-series on AI to explore how it interacts with, and affects, employment law and the world of work.

In part one, host Ellie Gelder is joined by two of RPC's resident experts on AI: Olivia Dhein, knowledge lawyer in our commercial and banking litigation team, and Joshy Thomas, IP and Tech knowledge lawyer. Olivia and Joshy share their insights on AI's impact on litigation, how best to use it responsibly, and the regulatory landscape, including:

How AI is affecting litigation, including legal submissions, witness statements, legal analysis and e-discovery;
Fake case citations and the recent case of Harber v HMRC [2023] UKFTT 1007;
Regulatory considerations, including the EU AI Act and potential regulation in the UK;
Diversity and inclusion and the risk of under-representation in AI discussions; and
How AI could increase accessibility to legal advice.

*Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

The Work Couch: Mental health at work (Part 4): Mental health first aid, with Simon Blake OBE

Wed, 22 May 2024 11:00:00 +0100

Trigger warning: The following page deals with themes around mental health, including suicide, severe mental health conditions and mental health in the workplace.

We are marking Mental health awareness week this month by devoting a four-part mini-series to mental health at work. In our concluding episode this week, Ellie is joined by Simon Blake OBE, Chief Executive at Mental Health First Aid England to explain the role of mental health first aid in the workplace.

We discuss:

The purpose of mental health first aid in the workplace;
How senior leaders play a critical role in implementing mental health first aid;
Key preliminary steps to take before rolling out mental health first aid;
The role of a mental health first aider and what it does not include;
How to prepare a mental health first aider for their role and ensuring they have appropriate support; and
The positive impact of mental health first aid at work and outside work.

You can listen to previous episodes in our mental health mini-series:

Part 1: Mental health at work: turning despair into hope, with Jonny Benjamin MBE

Part 2: Implementing effective mental wellbeing measures, with Neil Laybourn

Part 3: Protecting your employees' digital wellbeing, with Alice Hendy MBE

* Please note these podcasts will not run on Internet Explorer

To access further support on mental health, you may wish to visit: the Samaritans, Mind, or Rethink. Or you can use the text service from Shout on 85258

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

The Work Couch: Mental health at work (Part 3): Protecting your employees' digital wellbeing, with Alice Hendy MBE

Wed, 15 May 2024 10:32:00 +0100

Trigger warning: The following page deals with themes around mental health, including suicide, severe mental health conditions and mental health in the workplace.

We are marking Mental health awareness week this month by devoting a four-part mini-series to mental health at work. This week, in part 3, Ellie is joined by Alice Hendy MBE, CEO and founder of charity R;pple Suicide Prevention to explain how employers can protect their employees' digital wellbeing.

We discuss:

Alice's own experiences of losing her 21 year old brother Josh to suicide and her subsequent discovery that he had viewed severely harmful content online;
How Alice founded R;pple in Josh's memory and devised a pioneering digital tool that intercepts searches for harmful content online;
The significant role that harmful content is now playing in some suicides;
Effectively signposting people to free mental health support;
The impact that R;pple has had and how it has saved lives; and
How employee privacy and data is protected when using R;pple.

You can listen to previous episodes in our mental health mini-series:

Part 1: Mental health at work: turning despair into hope, with Jonny Benjamin MBE

Part 2: Implementing effective mental wellbeing measures, with Neil Laybourn

* Please note these podcasts will not run on Internet Explorer

To access further support on mental health, you may wish to visit: the Samaritans, Mind, or Rethink. Or you can use the text service from Shout on 85258

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

The Work Couch: Mental health at work (Part 2): Implementing effective mental wellbeing measures, with Neil Laybourn

Wed, 08 May 2024 10:14:00 +0100

Trigger warning: The following page deals with themes around mental health, including suicide, severe mental health conditions and mental health in the workplace.

To mark Mental health awareness week this month, we are devoting a four-part mini-series to mental health at work. In part 2, Ellie is joined by the other key person from the incredible "Stranger on the bridge" story, Neil Laybourn, who on that fateful day in January 2008, stopped to talk to Jonny Benjamin, who was about to take his own life on Waterloo Bridge.

Like Jonny (who Ellie spoke to in part 1 "Turning despair into hope"), Neil is a passionate mental health advocate and now runs his own consultancy, helping employers to implement end-to-end employee mental health programmes.

We discuss:

Neil's 30-minute conversation with a stranger on a bridge that sparked a remarkable friendship and a shared determination to champion better mental health support;
Challenges and barriers for businesses in supporting their people's mental health;
Hybrid working and mental health;
Removing negative working practices to help create a psychologically safe workplace culture, for example the Mindful Business Charter;
Factors to take into account when implementing mental wellbeing support measures;
The business case for better mental health support at work; and
How to engage under-represented communities in implementing your organisation's mental wellbeing programme.

* Please note these podcasts will not run on Internet Explorer

To access further support on mental health, you may wish to visit: the Samaritans, Mind, or Rethink. Or you can use the text service from Shout on 85258

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

The Work Couch: Mental health at work (Part 1): Turning despair into hope, with Jonny Benjamin MBE

Wed, 01 May 2024 11:00:00 +0100

Trigger warning: The following page deals with themes around mental health, including suicide, severe mental health conditions and mental health in the workplace.

To mark Mental health awareness week this month, we are devoting a four-part mini-series to mental health at work. In part 1, Ellie Gelder is joined by Jonny Benjamin MBE, whose incredible story touched many people all around the world when his search to find the stranger, who talked him down from taking his life on Waterloo Bridge, went viral with the hashtag #findMike.

We discuss:

Jonny's experience of mental illness;
How a stranger on a bridge changed his life forever;
Jonny's work to champion mental health, especially among young people;
The importance of support for relatives;
The power of listening without judgment; and
How colleagues can effectively support someone at work who is struggling with their mental health.

* Please note these podcasts will not run on Internet Explorer

To access further support on mental health, you may wish to visit: the Samaritans, Mind, or Rethink. Or you can use the text service from Shout on 85258

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

Government "crackdown" on "gagging clauses" is not new, but an important reminder

Mon, 29 Apr 2024 11:20:00 +0100

First published by Law360.

Following the government's February 2024 campaign to raise awareness of the Victims' Code (a practical guide to assist victims of crime with understanding the services and support that they are entitled to in the UK) the spotlight has fallen back on the misuse, or perceived misuse, of NDAs and their impact. On 28 March 2024 the UK Ministry of Justice announced plans to introduce legislation to ensure that victims are not prevented from accessing justice and necessary support services. The proposed changes will render "gagging" provisions unenforceable where they would prevent victims of a crime from providing information related to actual or alleged criminal conduct to:

the police or other bodies that prosecute crime;
qualified and regulated lawyers; or
other support services which operate under clear confidentiality principles (for example counsellors, advocacy services, and medical professionals).

This article considers the impetus for the proposed legislation, the SRA Warning notice on the use of NDAs, why (irrespective of the crackdown) solicitors' use of absolute gagging clauses would not be appropriate, and the scope for further reform, with a focus on employers' and their advisers' use of NDAs.

Scrutinising the use of NDAs and impetus for change

Nearly five years ago, in JuIy 2019, the government announced plans for legislation to tackle the misuse of NDAs in the workplace. Later that year, in its response to the House of Commons Women and Equalities Committee October 2019 report “The use of non-disclosure agreements in discrimination cases,” it stated that "using these agreements to silence and intimidate victims of harassment and discrimination cannot be tolerated". In the intervening period, there has been considerable reflection with calls for evidence but minimal tangible progress.

The government’s latest announcement on new NDA legislation came just a few weeks after the House of Commons' Treasury Committee published its report, Sexism in the City, on International Women's Day (8 March 2024). The report noted the use of NDAs to "cover up" allegations of abuse was a "prominent theme" in evidence it received about sexual harassment in the financial services sector, and made various recommendations, including a ban on NDAs.

Barely a month before, in February 2024, the Legal Services Board (a statutory, independent body charged with oversight of legal services in England and Wales) published its report, The misuse of non-disclosure agreements: call for evidence themes and summary of evidence, which focused on the role of lawyers’ conduct in the misuse of NDAs. While the Legal Services Board's call for evidence was not limited to the employment sphere, much of the evidence it gathered related to employment and the imbalance between employers and employees.

The Legal Services Board heard evidence of the impact of NDAs on physical and mental health, financial well-being and career prospects. It was concerned about individuals’ lack of understanding about their legal rights regarding NDAs, such as contexts in which a non-disclosure clause would be void, for example if it sought to preclude a worker from making a protected disclosure under the Employment Rights Act 1996.

No timeframe has been given for the introduction of the legislation. The March announcement simply stated legislation would be introduced "as soon as parliamentary time allows". However, for UK-regulated solicitors, there are existing obligations that mean they should not draft NDAs limiting an individual's ability to provide information about criminal conduct in the circumstances outlined by the Ministry of Justice.

SRA Warning Notice

For a number of years, the Solicitors Regulation Authority (SRA) has indicated that it would be improper to use an NDA to prevent whistleblowing, the reporting of an offence and engagement with a criminal investigation, or proper disclosures to medical professionals and counsellors who are bound by a duty of confidentiality.

The SRA's Warning notice – Use of NDAs, updated in 2020, reminds solicitors of their professional obligations under the SRA Code of Conduct for solicitors, Registered European Lawyers, Registered Foreign Lawyers, and the Code of Conduct for firms. The guidance in the Warning notice broadly advises in-house and external lawyers not to negotiate, draft, advise on, enforce or be a party to an NDA where it may that prevent disclosures relating to criminal conduct or they risk SRA disciplinary action. The proposed legislation, making such NDAs unenforceable, may support lawyers where they have faced commercial objections from their clients and could be seen as a welcome development.

Effect of the crackdown and use of NDAs

The scope of the proposed legislation appears narrower than the ambit of the SRA Warning notice, given it essentially only permits disclosure for the purpose of reporting a crime or accessing support or advice. Much will depend on how "information related to criminal conduct" will be defined or interpreted. For example, in cases of sexual harassment, where the use of NDAs is often critiqued, the conduct may or may not amount to a crime depending on what has or is alleged to have occurred.

The legislation would, therefore, do little to tackle the use of NDAs relating to other forms of workplace misconduct identified in the Treasury Committee's report, such as bullying and non-criminal sexual harassment (eg sexist banter and misogynistic behaviours). These types of conduct, which can have significant impact on victims' careers and well-being, would be unlikely to meet the criminal conduct threshold.

The legislation would not prevent NDAs forbidding disclosures to colleagues or media organisations or on social media. The Ministry of justice's announcement even expressly recognised the legitimate use of NDAs to protect commercially sensitive information, financial agreements, and any other obligation unrelated to the permitted disclosures relating to criminal conduct. Therefore, if and when the legislation is introduced, NDAs will still be enforceable in most circumstances where employers would seek to use them.

Nonetheless, reactionary measures by employers and are no longer sufficient, and disengagement from the reality that such behaviours do still occur in the post #MeToo era, carries significant legal and reputational risks. Particularly in cases of sexual harassment, where the risks of failing to take appropriate preventative action against such conduct will increase when the Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force in October 2024. In future, all in scope employers will be required to take reasonable steps to prevent sexual harassment of employees during the course of their employment.

Future Developments

This latest proposed legislation demonstrates the continued focus on reform of the use of NDAs and solicitors should be prepared for further developments in this area. For now, the government is not proposing an outright ban on the use of NDAs in harassment cases, as recommended by the Treasury Committee report, and the proposed legislation is likely, in reality, to have little practical effect.

However, in May 2023 the first industry specific legislation on NDAs was enacted, namely The Higher Education (Freedom of Speech) Act 2023. Once its provisions are in force, it would prevent English higher education institutions from entering into NDAs relating to complaints about "misconduct" or alleged misconduct (misconduct being defined as sexual abuse, sexual harassment or sexual misconduct and other types of bullying and harassment).

The Financial Conduct Authority has also recently required all regulated Lloyd's Managing Agents & London Market Insurers, and Lloyd's and London Market Insurance Intermediaries, to complete its survey by 5 March 2024 about incidents of non-financial misconduct between 2021 and 2023, which includes questions on the use of NDAs. The spotlight seems set to remain on NDAs for some time yet.

Best practice

Solicitors also always need to bear in mind the SRA principles and their duty to act in a way that upholds the rule of law and the proper administration of justice, preserves public trust and confidence in the solicitors' profession, and encourages equality, diversity and inclusion. In compliance with their regulatory obligations, and in line with the conclusions of the SRA's review of the use of NDAs in workplace complaints in August 2023, solicitors should proactively consider whether an NDA is necessary and appropriate in each case.

In some circumstances, permitting disclosures, rather than imposing confidentiality, may be more beneficial and foster a better corporate culture, although the interests of victims and protection of personal information will always need to be taken into account.

Where an NDA is appropriate, lawyers should avoid absolute gagging clauses, even in matters that do not involve criminal harassment, and instead set boundaries expressly permitting disclosures in limited circumstances, such as where disclosures are required by law, made to the police, HMRC, lawyers, tax and other professional advisers and, in appropriate cases, to immediate family members and medical professionals.

The Work Couch: Whistleblowing (Part 3): 5 key challenges for employers in 2024

Wed, 24 Apr 2024 11:00:00 +0100

Whistleblowing commonly features in today's top news stories, recent examples including the Post Office and Horizon dispute, and the harrowing Lucy Letby case. It's also a notoriously complex, and sometimes misunderstood, area of employment law, which can present challenges for line managers, HR teams and business leaders.

In part 3 of our mini-series on whistleblowing, Ellie Gelder is joined by Sybille Raphael, legal director at whistleblowing charity Protect, to run through the five key challenges in the world of whistleblowing for employers to tackle in 2024 and beyond. We discuss:

How whistleblowing legislation may change in the future to reflect the shift in the types of wrongdoing at work that workers are reporting today;
The increasingly pivotal role that whistleblowing plays in relation to a business's ESG obligations and associated risks, including greenwashing and social washing;
Whether AI will help or hinder whistleblowing, including potential risk areas and opportunities;
Why some people are more or less likely to speak up than others, including a possible connection between certain neurodivergent conditions and whistleblowing;
How whistleblowing can help employers to comply with their legal and regulatory duties to protect employees from bullying and harassment at work; and

The impact of the Economic Crime and Corporate Transparency Act 2023 (the first UK anti-SLAPPS law), and the extent to which this applies to whistleblowing.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

The Work Couch - Addiction at work: Disciplinary or wellbeing issue?

Wed, 10 Apr 2024 10:46:00 +0100

Addiction comes in many forms; it is often hidden and, due to social stigma, is rarely discussed. In the work context, addiction and dependency can raise complex challenges for line managers and HR teams.

In this week's Work Couch podcast episode, Ellie Gelder is joined by Charlotte Reid, senior associate in RPC's Employment, Engagement and Equality team and Eleena Misra KC, of Old Square Chambers, to explore how employers can respond appropriately to a colleague who is affected by addiction, while at the same time also ensuring that the safety of others are protected, and business interests are preserved.

We discuss:

The importance of considering why a person may have an addiction or dependency;
Factors to take into account when responding to a situation where a person's addiction is impacting their work or others;
How addiction, in certain situations, could form the basis of a disability discrimination claim;
Making reasonable adjustments, where appropriate;
Employment tribunal cases involving alleged misconduct due to alcohol or drugs; and
Helping employees open up about their addiction or dependency in a "safe space".

To access further support on addiction, you may wish to visit: With You, (formerly known as Addaction), GamCare, or Talk to Frank.

*Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

Whistleblowing (Part 2): How to approach whistleblowing complaints

Wed, 27 Mar 2024 11:00:00 Z

In part 2 of our mini-series on whistleblowing, Ellie Gelder is joined by Sybille Raphael, Legal Director at whistleblowing charity Protect, to explain how employers can approach whistleblowing complaints proactively and effectively. We discuss:

The reasons why employees don't speak up about wrongdoing at work, and how to foster a "speak up" culture;
Protecting whistleblowers from victimisation;
The shifting perceptions of whistleblowers, and how the nature of complaints has changed over the last decade;
How the employer's approach to whistleblowing will differ to its approach for grievances;
Balancing the duty of confidentiality to both the whistleblower and to the subject(s) of the complaint; and
Using whistleblowing reporting as a positive tool to achieve wider commercial goals.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release. You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

The Work Couch: Exploring the cost of untapped talent: Social mobility

Wed, 13 Mar 2024 10:00:00 Z

Kicking off part 1 of our mini-series on exploring the cost of untapped talent, we look at social mobility at work, inclusive hiring and the commercial drivers for generating social value.

Host Ellie Gelder is joined by two champions for social inclusion, James Fellowes and Chance Bleu-Montgomery from Bridge of Hope, a pioneering organisation that matches job-ready candidates from a pool of untapped talent, who face various social barriers to employment, with inclusive recruiting employers.

We discuss:

James and Chance's contrasting lived experiences of social exclusion and unemployment;
Social barriers to employment and the unique qualities that disadvantaged or system-impacted people can offer to employers;
The role of empathy in inclusive hiring;
Real-life examples of how organisations are adapting their recruitment processes to identify and attract untapped talent;
How inclusive hiring can generate more social value than other social impact initiatives;
Inclusive hiring through the commercial lens, including how it can help secure pitches, attract and retain the best talent, as well as boost productivity and brand perception; and
How the benefits of social mobility and inclusive hiring extend beyond the individual candidate to their family and wider communities.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release. You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

The Work Couch: Social washing: Avoiding the pitfalls

Wed, 28 Feb 2024 11:00:00 Z

The term "social washing" is increasingly used to name and shame businesses – with substantial commercial consequences. But what does it actually mean? And how can businesses avoid the pitfalls?

Ellie Gelder is joined by Kelly Thomson, partner and RPC's ESG lead, to explore the issue of social washing, including:

What the "S" in ESG means, how far it extends, and how it overlaps with the "E" (environmental) and the "G" (governance);
The conflicting commercial drivers for businesses to engage with today's pressing social concerns;
The concept of social washing and examples of how it can arise;
Potential commercial risks of social washing;
The links between social washing and greenwashing;
Future trends in respect of regulatory scrutiny and stakeholder focus on a business's social engagement and accountability; and
Key anchor points to bear in mind when engaging with a social issue to reduce the risks of social washing.

*Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

Whistleblowing (Part 1): A whistlestop tour of the law

Wed, 14 Feb 2024 10:30:00 Z

In part 1 of our mini-series on whistleblowing, Ellie Gelder is joined by consultant employment lawyer Victoria Othen to take us on a whistlestop tour of the law and explain:

How whistleblowing can arise in the work context;
The shift in how whistleblowing at work is perceived;
How whistleblowers are protected at work;
The legal elements required to make a "protected disclosure";
How "in the public interest" is defined; and
Potential remedies in the event of a successful employment tribunal claim and other commercial implications.

* Please note these podcasts will not run on Internet Explorer

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

The Work Couch: Trans inclusion at work: how to be a good ally

Wed, 31 Jan 2024 09:49:00 Z

This week, Ellie Gelder is joined by Emma Cusdin, Director at Global Butterflies, champion for trans and non-binary rights, and award-winning role model in the business sector for LGBTQ+ people.

Drawing on Emma's lived experience as an openly trans woman and her 30 plus years' experience of working in HR, she shares her expertise on how we can all be good allies to trans and non-binary colleagues. We discuss:

Terminology and dispel some of the myths around the trans and non-binary community;
Using pronouns, titles and the importance of respecting people's names;
The unique challenges experienced by trans and non-binary people in their day-to-day lives;
How managers and colleagues can best support someone who is, or who is about to embark, on their transition journey;
Common barriers to trans-inclusion, including the fear of "getting it wrong";
How to be an effective ally at work and outside work; and
Emma's top tips to create a genuinely trans-inclusive culture for your organisation's workforce, customers, prospective employees, suppliers and stakeholders.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

The Work Couch: What's on the horizon for employment law in 2024?

Wed, 17 Jan 2024 12:00:00 Z

We kick off season 2 with a look ahead to 2024 and discuss five key employment law changes and HR trends on the horizon.

Ellie Gelder is joined by Kelly Thomson, partner and RPC's ESG lead, to explain how HR professionals and business leaders should start preparing now for the following:

Redundancy protection extending to pregnant employees and those returning from maternity leave and other family-related leave;
Leave for carers;
Changes to employers' duties under the Equality Act 2010 to prevent sexual harassment at work;
Increased regulatory focus and scrutiny on diversity, equity, inclusion and belonging in certain sectors; and
New rates of statutory minimum wages and changes to the national living wage.

Kelly also highlights other HR trends and developments to monitor in 2024.

Listeners may also be interested in our Christmas special where we explore 12 key employment law developments of 2023, which will remain relevant in 2024, including: changes to the right to request flexible working, TUPE consultation, and holiday pay.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release. You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

The Work Couch: 12 days of Christmas - A look back at 12 key employment law developments from 2023

Wed, 13 Dec 2023 16:00:00 Z

In our feature-length Christmas special, we give you the download on 12 important employment law and HR development from the year of 2023. Essential listening for those of you who need to catch up on the many changes in the last 12 months.

Ellie Gelder is joined by Patrick Brodie, partner and head of RPC's Employment, Engagement and Equality team, Kelly Thomson, partner and RPC's ESG lead, Charlotte Reid, senior associate and Victoria Othen, consultant.

We discuss the following topics and explore the impact on employers, and the key actions to take. Please note the time stamps so you can easily navigate to the topics relevant to you:

[2:14] Recovery of holiday underpayments and the Supreme Court's decision in Chief Constable of the Police Service of Northern Ireland and another v Agnew and others [2023] SC 33;
[5:33] Increasing focus by HR and regulators on conduct in the workplace, following various high profile cases of toxic workplace culture and sexual misconduct in the workplace;
[9:42] The potential repeal to the ban on employers using agency workers during strike action;
[12:12] Changes to the law on flexible working requests;
[16:00] Dealing with gender-critical beliefs and the EAT decision in Higgs v Farmor's School [2023] EAT 89;
[20:58] Reforms to holiday pay calculations for part-time workers and those with irregular hours;
[23:45] TUPE and changes to the rules on consultation with affected employees;
[27:01] AI and its impact on the workforce;
[32:43] Menopause support at work, and the case of Rooney v Leicester City Council;
[38:19] Dismissal and re-engagement and the incoming code of practice;
[43:19] Industrial action and minimum service levels; and
[47:03] Employment status and collective rights, and the recent Supreme Court decision in Independent Workers Union of Great Britain v Central Arbitration Committee and Roofoods Ltd t/a Deliveroo [2023] SC 43

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

Reforms to working time record-keeping, holiday pay and entitlement, and TUPE consultation

Tue, 28 Nov 2023 14:00:00 Z

The government has issued its response to the consultation on reforms to retained EU employment law proposed earlier this year. The proposals included:

• Reducing record keeping requirements under the Working Time Regulations 1998 (WTR);
• Simplifying annual leave and holiday pay calculations under the WTR; and
• Relaxing TUPE information and consultation requirements.

Draft legislation intended to bring the changes into effect (the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 (the Draft Regulations)), has been published.

In addition to addressing the proposals, the Draft Regulations include new provisions (not referred to in the consultation) regarding the carry-over of annual leave.

The Draft Regulations will come into force on 1 January 2024 and the holiday pay provisions will, in most cases, apply to leave years commencing on or after 1 April 2024.

1. Reduced record-keeping requirements

Currently, reg.9 of the WTR requires that employers must, among other things, keep adequate records to demonstrate compliance with: (i) the maximum weekly working time; (ii) length of night work; and (iii) health assessments and transfers of night workers to day work. However, the 2019 judgment of the Court of Justice of the European Union (Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE) raises the possibility that employers would need to comply with increased record keeping requirements by recording all daily working hours of all workers.

The government believes that the CCOO decision is disproportionate and causes confusion as to what an employer's record-keeping obligations are.

To clarify the position, the Draft Regulations will, once implemented, amend reg.9 of the WTR to:

clarify that businesses do not have to keep a record of all daily working hours of all their workers for the purposes of the WTR if they are able to demonstrate compliance without doing so;
allow employers to create, maintain and keep adequate records in such manner and format as they reasonably think fit; and
reaffirm that record keeping requirements put in place by other legislation, such as for national minimum wage purposes, will remain in place and are unaffected by these latest changes.

The government has confirmed that it also intends to re-publish WTR guidance.

2. Permitting rolled-up holiday pay for irregular hours workers and part-year workers

Rolled-up holiday pay is a system where a worker receives an additional amount or enhancement with every payslip to cover their holiday pay, as opposed to receiving holiday pay only when they take annual leave. Such a system is currently unlawful under European case law.

As part of the consultation, the government proposed to introduce rolled-up holiday pay as a lawful option for all workers. However, in response to feedback received through the consultation, particularly a perception of limited advantage for those on regular hours or full-year workers, the government intends to introduce the ability for employers (should they choose) to roll-up holiday pay for irregular hours workers and part-year workers only.

If employers choose to use rolled-up holiday pay, they will be required to calculate a worker’s holiday pay as 12.07% of the worker’s total earnings within a pay period and to pay the worker with each payslip. Employers should clearly mark such payments as separate items on each payslip.

3. Simplifying annual leave entitlement

Calculating holiday entitlement for part-year and irregular hour workers

The Supreme Court's decision in Harpur Trust v Brazel created uncertainty around the holiday pay for part-year workers. The consultation sought views on introducing a 52-week holiday entitlement reference period for part-year workers and workers with irregular hours, based on the proportion of time spent working over the previous 52-week period, with weeks when there was no pay received no longer being excluded from the calculations. This was aimed at bringing such workers in line with entitlements received by part-time workers who work the same number of hours across the whole holiday year.

Feedback demonstrated that employers preferred using the accrual method of calculating holiday entitlement. This accrual method was widely used before the Harpur Trust judgment and better reflects what workers have actually worked in the current leave year, as annual leave is accrued based on time worked over each pay period.

The Draft Regulations legislate to introduce an accrual method to calculate entitlement at 12.07% of hours worked in a pay period (whatever that may be for each employer) for irregular hours workers and part-year workers in the first year of employment and beyond.

Other workers will continue to accrue annual leave in their first year of employment as they do now (and in line with reg.15A of the WTR) by receiving 1/12th of the statutory entitlement on the first day of each month and to pro-rate it thereafter. As with other elements of holiday pay and entitlement, employers may choose to provide more generous contractual terms and give workers a greater annual leave entitlement.

A clearer definition of normal remuneration for holiday pay calculations

The existing law on holiday entitlement (under regs.13 and 13A of the WTR) can cause complications because there are two separate entitlements: (A) four weeks of EU-derived entitlement, plus (B) an additional 1.6 weeks. There are different pay calculations and carry-over rules for each of (A) and (B).

The government will not at this time be introducing a single annual leave entitlement. Instead, it will maintain the distinct 'pots' of annual leave and the two existing rates of holiday pay so that workers continue to receive four weeks at normal rate of pay and 1.6 weeks at basic rate of pay.

As the WTR do not set out what is considered normal remuneration, the government will legislate to clarify this, in light of European case law. The Draft Regulations will require that the following types of payment are included when calculating the normal rate of pay:

payments, including commission payments, intrinsically linked to the performance of tasks which a worker is contractually obliged to carry out;
payments for professional or personal status relating to length of service, seniority or professional qualifications; and
payments, such as overtime payments, which have been regularly paid to a worker in the 52 weeks preceding the calculation.

Carry-over of other leave

The government is restating various pieces of retained EU case law that it considers necessary to retain workers' overall level of protection and entitlement in relation to carry-over of annual leave when a worker is unable to take their leave due to being on maternity leave, family-related leave or sick leave. The government is also introducing a method of accrual of annual leave for irregular hours and part-year workers when they have had other periods of maternity or family-related leave or sick leave.

Removal of pandemic-related extended carry-over of leave

As a response to the pandemic, and to prevent workers from losing annual leave entitlement if they were unable to take it due to the effects of coronavirus, the government amended the WTR in 2020. This change allowed workers to carry over four weeks of leave into the following two leave years if it was not reasonably practicable to take it in the year to which it related.

This provision will now be removed with effect from 1 January 2024 so that the pre-pandemic position will return, and workers will no longer accrue Covid-19 carry-over leave. As a transitional measure, workers that still have leave accrued prior to 1 January 2024 will be permitted to use it on or before 31 March 2024.

4. Relaxing TUPE consultation rules

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) impose obligations upon employers to inform and (if appropriate) consult with recognised trade unions or elected employee representatives in relation to employees who may be affected by the transfer, or any measures taken in connection with it. Currently, micro-businesses with fewer than ten employees can inform and consult affected employees directly in certain circumstances.

The Draft Regulations will allow small businesses (with fewer than 50 employees) undertaking a transfer of any size, and businesses of any size undertaking a small transfer (of fewer than 10 employees) to consult directly with their employees if there are no existing worker representatives in place.

The government acknowledged concerns about the changes adversely affecting the rights of employees involved in transfers and the quality of the consultation but confirmed that the reforms will not remove the existing requirement on businesses to consult employees on transfers. Businesses will retain the choice to elect and consult worker representatives, if that is their preference. Furthermore, where employee representatives – including trade unions – are already in place, employers will still be required to consult them.

Menopause discrimination: Where are we now?

Thu, 16 Nov 2023 11:00:00 Z

October heralded an important legal first when a Leicester employment tribunal began hearing the case of Rooney v Leicester City Council. It is the first case where a person's menopausal symptoms have been deemed by an appeal court to potentially amount to a disability for the purposes of the Equality Act 2010.

So, what lessons can be learned from the Rooney case? And are employers doing enough to provide adequate menopause support for their people?

Facts of the Rooney case

Ms Rooney, who worked as a social worker, suffered from menopausal symptoms, anxiety and depression. As a result of taking extended periods of sickness absence for her symptoms, her employer issued her with a formal warning. This was despite the fact she had informed her employer about her menopausal symptoms.

Ms Rooney alleges she was treated unfavourably because of her absences and that inappropriate comments were made about her symptoms. This led her to resign and bring employment tribunal claims for discrimination, harassment and victimisation on the grounds of both disability and sex.

Ms Rooney said: "I was a dedicated Children's Social Worker and I worked at Leicester City Council for 12 years but when I started suffering with work related stress and anxiety and menopausal symptoms nobody listened or helped me. I felt let down and betrayed after working there for so long and I felt they had no compassion and understanding and awareness of the menopause"¹.

Menopausal symptoms as a disability?

After several preliminary hearings and an appeal, the Employment Appeal Tribunal (EAT) set a legal precedent in February 2022 when it concluded that menopausal symptoms could meet the legal definition of disability for the purposes of section 6 of the Equality Act 2010.

This law provides that a person is disabled if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. In this context, "substantial" means more than minor or trivial.

Having referred to Ms Rooney's evidence, the EAT held that the tribunal had erred in deciding that Ms Rooney's symptoms did not meet this definition.

The EAT referred to Ms Rooney's evidence that her symptoms led to her forgetting to attend events, meetings and appointments; losing personal possessions; forgetting to put the handbrake on her car and forgetting to lock it; leaving the cooker and iron on and leaving the house without locking doors and windows. Ms Rooney also spent prolonged periods in bed due to fatigue and suffered with dizziness, incontinence and joint pain.²

In the EAT's view³, the tribunal had not explained how it had concluded that this evidence, which it did not reject, did not demonstrate an effect on day-to-day activities that was more than minor or trivial. Instead, the tribunal had wrongly focused on what Ms Rooney could do, rather than on what she could not do. This was contrary to the approach endorsed in Ahmed v Metroline Travel Ltd EAT/0400/10⁴

The EAT therefore remitted the question of whether or not Ms Rooney was disabled to the employment tribunal on the basis that it required a fresh and careful analysis of the facts.

The tribunal heard the case on 2 October 2023, and a decision is awaited.

Implications for employers

The Rooney case confirms that menopausal symptoms can amount to a disability – provided the legal criteria set out in s.6 of the Equality Act 2010 are met. As a result, when dealing with an employee's sickness absence, performance or capability issues in circumstances where the employee has disclosed (or the employer ought reasonably to know) that they are suffering with menopausal symptoms, managers should consider the employee's symptoms and circumstances carefully, bearing in mind that they may amount to a disability. An employment tribunal will have particular regard to the combined effect of conditions and symptoms, when deciding whether they have a substantial adverse effect.⁵

Regardless of the legal position on disability, an emotionally intelligent and supportive approach remains paramount.

Where a person's menopausal symptoms amount to a disability, other potential claims include discrimination arising from disability under s.15 of the Equality Act 2010, as well as a failure to make reasonable adjustments under s.20 of the Act. The potential legal pitfalls are numerous.

Even where the disability discrimination provisions are not triggered, for example where menopausal symptoms are intermittent and do not therefore meet the "long-term" requirement in s.6 of the Act, other strands of discrimination protection may come into play, for example sex discrimination and/or age discrimination.

Harassment is also a very real risk, where your organisation turns a blind eye to "banter" about the menopause. In the case of Best v Embark on Raw Ltd⁶, an employment tribunal found that a colleague's comments to the claimant about the menopause and the continued pursuit of the topic constituted unwanted conduct, which had the effect of violating the claimant’s dignity and of creating a humiliating environment for her at work. Consequently, her claim of unlawful harassment – against the employer - was successful.

Are employers doing enough?

Given research published recently by the CIPD⁷ that found only a quarter of employer respondents has a menopause policy or other support, it seems there is much remaining room for improvement.

The research, which was based on a survey of over 2,000 women, aged 40 to 60, who are currently employed in the UK also reported:

More than a quarter said the menopause has had a negative impact on their career progression;
Around one in six (17%) have considered leaving work due to a lack of support in relation to their menopause symptoms, and a further 6% have left work;
Having a disability or long-term health condition makes a significant difference with around one in 12 (8%) in this situation having left work and a further one in four (24%) considering it (compared with 5% and 14%, respectively, of those without a disability or long-term health condition); and
Over half have been unable to go into work at some point due to menopause symptoms.

These figures make for bleak reading and there is, unquestionably, a long way to go. More positively, there is therefore a very real opportunity for employers who want to attract and retain this key talent demographic.

And better support does not necessarily entail costly or complicated initiatives. The research cited flexibility and the ability to control temperature at work amongst the most helpful measures so, as a first step, it is worth organisations exploring how these options could work, for example by offering hybrid working or by providing people with desk fans or uniforms in breathable fabric.

Direction of travel for menopause support

Having supported Ms Rooney with her case, the Equality and Human Rights Commission (the UK's equality regulator) has announced⁸ that it intends to publish guidance for employers on how to support people affected by the menopause. So, notwithstanding the government's recent decision not to introduce specific legal protection against menopause discrimination, the direction of travel is an increased expectation on employers to take ownership of this issue.

Menopause support should feed into organisations' wider diversity, equity, inclusion and belonging strategies. Where appropriate, this will involve consulting with employee resource groups or communities who are affected by menopause, so that measures are tailored sufficiently to reflect the unique challenges they face in your workplace.

Ultimately, by failing to engage with this issue, your business risks not only losing the valuable talent of people who have often reached the pinnacle of knowledge in their particular field, but it also jeopardises how clients, suppliers and other stakeholders view your brand, as well as worker productivity and general morale.

As the so-called "War for talent" continues, implementing effective menopause support is not only a quick win but it is the right thing to do for half of the working population.

If you would like further information on the legal considerations around menopause at work, as well as a first-hand account of how the menopause has affected one of our RPC colleagues and the support that has helped her, please tune in to RPC's The Work Couch podcast episode: the impact of menopause in the workplace.

A version of this article was first published in Law360

¹https://www.equalityhumanrights.com/en/our-work/news/equality-watchdog-supports-important-tribunal-hearing-alleged-menopause-discrimination

²Rooney v Leicester City Council EAT/0064/20 & EAT/0104/21 https://assets.publishing.service.gov.uk/media/615eea73e90e07198108146c/Ms_M_Rooney_v_Leicester_City_Council_EA-000070-DA__Previously_UKEAT_0064_20_DA__EA-2021-000256-DA_Previously_UKEAT_0104_21_DA_.pdf - see paragraph 53

³see para.54 of EAT judgment: https://assets.publishing.service.gov.uk/media/615eea73e90e07198108146c/Ms_M_Rooney_v_Leicester_City_Council_EA-000070-DA__Previously_UKEAT_0064_20_DA__EA-2021-000256-DA_Previously_UKEAT_0104_21_DA_.pdf

⁴Ahmed v Metroline Travel Ltd EAT/0400/10 https://www.bailii.org/uk/cases/UKEAT/2011/0400_10_0802.html

⁵Mefful v Merton and Lambeth Citizens Advice Bureau EAT/0127/16 https://assets.publishing.service.gov.uk/media/5a676a6440f0b63b5e49789b/Mr_P_Mefful_v_Merton_and_Lambeth_Citizens_Advice_Bureau_UKEAT_0127_16_DA.pdf

⁶Best v Embark on Raw Ltd ET3202006/20 https://www.gov.uk/employment-tribunal-decisions/ms-l-best-v-embark-on-raw-ltd-3202006-slash-2020

⁷CIPD report Menopause in the workplace (4 October 2023) https://www.cipd.org/uk/knowledge/reports/menopause-workplace-experiences/

⁸https://www.equalityhumanrights.com/en/our-work/news/equality-watchdog-supports-important-tribunal-hearing-alleged-menopause-discrimination

The Work Couch: Pregnancy loss and work (Part 2): How to support your people effectively

Wed, 11 Oct 2023 10:30:00 +0100

As we mark Baby Loss Awareness Week, in part 2 of our mini-series on pregnancy loss, we look at the practical ways in which businesses can support their people who are affected by pregnancy loss.

With around 20 to 25% of all pregnancies sadly ending in miscarriage, we will either experience pregnancy loss ourselves or know someone who is affected. While everyone's experience is unique to them, pregnancy loss can adversely affect a person's physical and mental wellbeing and the return to work can be especially difficult.

So how can employers, managers and colleagues best support people affected by pregnancy loss? Ellie Gelder talks to Vicki Robinson, deputy director at The Miscarriage Association, about:

What the term "miscarriage" means and the different types of pregnancy loss;
Recognising the impact on non-child bearing partners and those who were expecting a baby via a surrogate;
Progress of The Miscarriage Leave Bill;
Why support at work is so important;
How to help someone who is starting to experience a loss at the workplace;
The impact on mental health;
Practical measures to support people, including signing up to The Miscarriage Association's Pregnancy Loss Pledge; and
The key dos and don'ts of pregnancy loss support.

If you would like to find out more about pregnancy loss, you can access further guidance and support from The Miscarriage Association, Tommy’s Miscarriage Information and Support or Antenatal Results and Choices.

*Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

The Work Couch: Performance issues in a redundancy situation

Wed, 04 Oct 2023 11:06:00 +0100

However well-planned your redundancy process is, there are a number of issues that can really throw a spanner in the works: from employees submitting grievances or making data subject access requests, to historical underperformance issues that haven’t been dealt with properly.

So how do employers tackle these thorny issues?

Ellie Gelder talks to Charlotte Bray, associate in RPC's Employment, Engagement and Equality team, about:

How the law defines a "genuine" redundancy situation and why the legal definition is so important;
What a fair redundancy procedure looks like;
Collective redundancy consultation obligations;
Discrimination risks, whistleblowing and legacy rights;
Dealing with data subject access requests submitted during the redundancy process;
A hypothetical scenario involving an underperforming employee who is selected for redundancy: What are the red flags? What should the employer have done differently?
Protecting people's wellbeing throughout a redundancy process and bearing in mind the potential impact on mental health; and
Key practical takeaways for employers embarking on a redundancy process.

*Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

The Work Couch: Bereavement at work

Wed, 20 Sep 2023 09:30:00 +0100

We will all, unfortunately, experience bereavement at some stage in our lives, but how does this impact our working lives and what can employers do to support colleagues who have lost a loved one?

Ellie Gelder is joined by Rosie Gill-Moss, host of the WidowedAF podcast, and Victoria Othen, consultant at RPC and part-time employment judge, to discuss:

Rosie's own experience of becoming a widow at a young age and the impact on her wellbeing;
What grief looks like and the fact that grieving is not a linear process;
The practicalities of "death admin" and how employers can help bereaved employees manage the practical tasks when someone dies;
What to say, and what not to say, to someone on their return to work following their bereavement;
The importance of recognising that a person's caring responsibilities may have increased as a result of the bereavement; and
What the law says about time off for different types of bereavement, including: compassionate leave, parental bereavement leave, and whether such time off is paid or unpaid.

* Please note these podcasts will not run on Internet Explorer

To access further support on grief and bereavement you may wish to visit: Cruse Bereavement Support, At a Loss, The Good Grief Trust, Widowed and Young, Holding On Letting Go, and the Government's Tell Us Once service.

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release. You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

Adjusting your recruitment process for a candidate with a disability: What is reasonable?

Mon, 18 Sep 2023 11:17:00 +0100

Background

In 2018, AECOM Ltd advertised for a role in its research and development department. Mr Mallon, who has dyspraxia, applied. Applicants were required to complete an online application form. To access the form, applicants had to provide a password consisting of eight digits, including a special character.

Mr Mallon emailed the company's HR department expressing his wish to apply for the role and providing information about his dyspraxia and how the condition affects people generally. He asked whether he could make his application orally by telephone because of his disability. AECOM Ltd refused the request and told him told that he had to complete the online form. He was advised to inform the HR team if he was struggling with any aspect of the form.

Mr Mallon did not inform the HR team about how his disability caused him difficulties in creating a password to access the form. He says this was for "fear of being laughed at in light of a previous experience with another employer". Ultimately, his application was unsuccessful.

What was the legal basis of the claim?

Mr Mallon brought a claim for disability discrimination against AECOM Ltd for a failure to make reasonable adjustments. By way of reminder, the Equality Act 2010 provides that an employer has a duty to make reasonable adjustments where a provision, criterion or practice (PCP) puts a disabled person at a substantial disadvantage compared to a non-disabled person. Failing to make such reasonable adjustments constitutes disability discrimination. Mr Mallon was arguing that the PCP, in this case, was the requirement to complete the online application form.

Decision

The broad points made by the EAT were these:

A duty to make reasonable adjustments does not arise if the employer does not know - and could not reasonably be expected to know - that the claimant has a disability and that they are likely to be placed at the substantial disadvantage.
However, an employer cannot "turn a blind eye" and, in line with the EHRC Employment Statutory Code of Practice, should do all they can reasonably be expected to do to find out whether an applicant has a disability and is, or is likely to be placed, at a substantial disadvantage. What is reasonable will depend on the circumstances.
AECOM Ltd had constructive (in other words, implied) knowledge of the disability and the disadvantage faced by Mr Mallon. It knew he was dyspraxic and, had the HR team made reasonable enquiries – e.g. by telephoning Mr Mallon - it would have had the requisite knowledge of his particular difficulties with the online application.
Consequently, the duty to make reasonable adjustments, for example sending the form to Mr Mallon or creating a password for him and emailing it to him, came into play.

Takeaways

This decision highlights the importance of making adequate enquiries to find out (i) if a job applicant is, or could be, disabled; and (ii) if they are or could be disabled, what actions may be required to eliminate a substantial disadvantage to that applicant. This will be especially important in situations where the applicant indicates that they would encounter difficulties with the application process but have not provided specific details.

Obtaining this information helps the employer to assess its obligations, both legal and practical.

There is, of course, a balance to be struck between respecting a person's privacy about sensitive personal information on the one hand, and making adequate enquiries to assess which reasonable steps need to be taken to avoid the disadvantage posed by the recruitment process. Communicating effectively and sensitively during the recruitment process will always be crucial.

In the ongoing "war for talent", attracting the best candidates will be front and centre of business aims. This, in itself, will involve removing difficulties for those who might be dissuaded from applying or find it more difficult to comply with the process, and such an approach reduces the risk of costly, time-consuming and reputationally damaging discrimination claims.

AECOM Ltd v Mallon [2023] EAT 104

If you or your organisation require assistance on this area, please get in touch with Charlotte Reid or Kelly Thomson.

The Work Couch: Reforms to employment rights for parents and carers: Where are we now?

Thu, 07 Sep 2023 16:02:00 +0100

Since the pandemic prompted a major shift in how we work, there have been growing calls to boost the support for employees who are balancing work with their caring commitments. So what reforms might we see in the near future?

Ellie Gelder is joined by Joanna Holford, senior associate at RPC, to discuss potential changes to the law around time off and other important protections for parents, surrogates and carers. Jo explains what's in the pipeline for:

statutory paternity leave;
statutory shared parental leave;
time off and pay for surrogates and employees expecting babies born via a surrogate;
redundancy protection for pregnant employees and those returning from maternity leave;
neonatal leave and pay; and
carers' leave.

Jo also highlights how these proposals could bring benefits to employers, as well as employees.

*Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

The Work Couch: Fertility challenges and work (Part 2): How to support your people

Wed, 26 Jul 2023 10:15:00 +0100

In part 2 of our series on fertility challenges and work, Ellie Gelder is joined once again by partner Jonathan Crompton in RPC's Hong Kong office to explain how businesses can implement effective support for employees who are experiencing fertility challenges. Jonathan discusses:

The importance of actively implementing and communicating policies on fertility treatment and pregnancy loss, ensuring language and terminology used is sensitive and inclusive;
Signposting employees to external resources for further support and information;
Encouraging conversations at work to remove the stigma around fertility and raise awareness across the whole workforce;
Arranging access to a fertility coach to guide employees on their fertility journeys and provide advice and information;
Appointing internal fertility officers, who have themselves experienced fertility challenges, to provide employees with confidential support and advice on practical issues, such as requesting time off and who needs to know what; and
The dos and don’ts of what to say to a colleague who has experienced pregnancy loss or fertility challenges.

* Please note these podcasts will not run on Internet Explorer

If you would like to find out more about fertility issues or pregnancy loss, you can access further guidance and support from Fertility Network UK, The Miscarriage Association or Tommy’s Miscarriage Information and Support. For support and information on endometriosis, please visit Endometriosis UK.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

Fertility challenges and work (Part 1): A partner's perspective

Wed, 19 Jul 2023 10:00:00 +0100

With the World Health Organisation reporting that around 17.5% of the adult population experience infertility, this week we are shining a light on those challenges and in particular, how fertility issues can affect someone at work and what businesses can do to support people.

In part 1 of our series on fertility challenges and work, Ellie Gelder is joined by partner Jonathan Crompton in RPC's Hong Kong office to explore the impact that fertility issues can have on a person's wellbeing and working life. Jonathan explains:

His own fertility journey and how this has affected his wellbeing and working life as a lawyer;
How fertility challenges and pregnancy loss can impact the non-childbearing partner;
Why, according to research by Fertility Family, more men than women would rather call in sick than tell their employer they're going to a fertility appointment;
Changing the language and terminology around fertility so that it is not perceived as something "elective" or a "women-only" issue;
The importance of vulnerability, especially among business leaders, in opening up the conversation around fertility; and
How the legal profession, and others, should raise awareness of the issue across their workforce and enable a better understanding of the risks of delaying starting a family.

In part 2 next week, Jonathan will explain how businesses can implement effective support for people affected by fertility challenges, including: fertility treatment policies, providing fertility coaches to help people navigate their fertility journeys, and appointing internal "fertility officers" as a source of support and advice for colleagues.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode, if you did please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording. The Work Couch is not a substitute for legal advice.

The Work Couch Business protection Part 2 Supporting and retaining senior talent

Wed, 12 Jul 2023 12:30:00 +0100

Wed, 12 Jul 2023 12:30:00 +0100EmploymentIn the second part of our mini-series on business protection, we explore how businesses can support and retain their senior talent. Ellie Gelder is joined by two age inclusion champions: Liz Gray, who heads up EY’s support for retiring partners, and Simon Long, growth director at 55 Redefined, an organisation that supports the over 50s and advocates for age diversity, positivity and inclusion across all areas of life. They discuss:

The business case for age inclusion, in particular for those aged over 50;
How EY is supporting its partners well before their retirement to explore other opportunities, including mentoring the next generation, getting involved with charitable causes, or broadening their hobbies and passions outside work;
Simon's personal experience of age exclusion, the impact on his wellbeing and how 55 Redefined is helping businesses to become age inclusive employers;
Gaining buy-in from senior stakeholders to embed an age-friendly approach and raising awareness through lived experiences, data and mentoring;
The importance of flexibility in achieving an intergenerational workforce;
How AI will affect age inclusion in the future and the opportunities it presents; and
Challenges and opportunities for the legal sector in adopting an age-inclusive approach.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release. You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

]]>

An introduction to TUPE (Part 2): The TUPE journey

Thu, 29 Jun 2023 09:30:00 +0100

In part two of our mini-series on TUPE (transfer of undertakings and protection of employment), we explore the TUPE journey itself, including the practicalities of the due diligence exercise, as well as the obligation to inform and consult with affected employees. We also provide our "golden rules" on how to engage effectively with those people who are affected by a TUPE transfer.

Ellie Gelder talks to RPC's resident TUPE experts Patrick Brodie and Kelly Thomson about:

What employee liability information must be provided to the transferee, and when;
Informing and consulting affected employees in a sensitive, reasonable and sympathetic way;
When transferors can consult directly with individual employees, rather than employee representatives;
The government's proposal, as part of its policy paper "Smarter Regulation to Grow the Economy", to remove the current requirement to elect employee representatives for certain qualifying transfers;
Consequences of failing to inform and consult and associated liabilities; and

How the obligation to inform and consult on a TUPE transfer interacts with any related collective redundancy consultation obligations.

*Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

The Work Couch: Pregnancy loss and work (Part 1): Does the law reflect expected work cultures?

Wed, 14 Jun 2023 10:50:00 +0100

With around 20 to 25% of all pregnancies sadly ending in miscarriage, we will either experience pregnancy loss ourselves or know someone who is affected. While everyone's experience is unique, people commonly report feelings of shock, grief and isolation which can be further compounded by work worries, for example how to tell their manager, or how much leave they are entitled to. These worries can adversely impact the affected employee's physical and mental wellbeing, work performance and morale.

So how does the law currently protect employees who experience pregnancy loss - and does it reflect expected work cultures? Ellie Gelder talks to employment law experts Charlotte Reid, senior associate at RPC, and Eleena Misra KC of Old Square Chambers about:

Why pregnancy loss is such an important topic for employers;
Charlotte's own experience of miscarriage and how it affected her at work;
How the right to time off differs depending on the timing of the loss;
The perspective of non-child-bearing partners;
What legislative changes we might see on the horizon, specifically the progress of The Miscarriage Leave Bill; and
Practical issues that might arise and how managers can deal with these sensitively and supportively.

If you would like to find out more about pregnancy loss, you can access further guidance and support from The Miscarriage Association or Tommy’s Miscarriage Information and Support.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

The Work Couch: Sexual harassment in a post #MeToo era – (Part 2) with Macaela Joyes

Wed, 31 May 2023 10:15:00 +0100

The topic of workplace sexual harassment continues to feature in today's headlines: from NHS staff reporting 20,000 alleged incidents of sexual misconduct by patients in the last five years, to recent research by the TUC that found more women had experienced sexual harassment at work, than those who had not.

So how do employers ensure they deal with allegations effectively? What should they avoid saying at the outset of an investigation? How should they approach their obligations towards the accused harasser?

Ellie Gelder talks to employment law expert Macaela Joyes about:

Where the law draws the line on workplace "banter";
How tribunals have approached cases where the claimant has appeared to "go along with" sexualised jokes, or initiated banter as a coping mechanism;
Five general principles to guide employers when dealing with an allegation of sexual harassment;
Ensuring impartiality where either the alleged victim or alleged perpetrator is a senior employee; and
Dealing with complaints involving a criminal investigation by the police, and how to balance your obligations as an employer.

* Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

The Work Couch: Business protection (Part 1): When a senior executive leaves

Wed, 17 May 2023 12:37:00 +0100

Following last week's announcement by the government of its plans to limit the extent of non-compete post-termination restrictions, we take a look at the proposals as well as how the current law protects businesses when a senior executive leaves.

Patrick Brodie, partner and head of RPC's employment, equality and engagement team, explains how restrictive covenants work in practice, including:

An overview of the restraint of trade doctrine and how the approach by UK courts has evolved over time;
Whether restrictive covenants should still exist in today's economy;
How other countries approach restraints of trade;
The various types of post-termination restriction and how they operate;
How long restrictive covenants can remain effective;
Enforceability and associated tactics;
"Blue pencilling", which refers to the deletion of words to make a restriction enforceable, and the Supreme Court's ground-breaking decision in Tillman v Egon Zehnder; and
How to manage the departure of a senior executive, where there is a potential breach of a post-termination restriction.

*Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

Senior executive leaving? Six steps to protect your business

Wed, 17 May 2023 09:58:00 +0100

If a departing employee misuses crucial business information, such as proprietary technology, bespoke coding or a valuable client list, the legal ramifications can become complex and the potential economic loss significant. The challenges are starker if they have left to join a rival organisation.

However, you can take steps to minimise any potential damage to your business.

1. Check the small print

Before this situation arises, take the time to prepare and review your employee contracts. If there are appropriate restrictive covenants and confidentiality provisions in place to prevent employees taking and misusing company information, and/or preventing them from working in competing activities for a set amount of time after their exit, this will give you a head start.

However, restrictive covenants must be drafted with great care. The wording - and reasonableness - of a restrictive covenant is of utmost importance as it could, ultimately, affect how a court decides on the enforceability of the restriction in question. Bear in mind that courts are not permitted to re-write or add wording into an ambiguous or badly drafted clause. You should also regularly review restrictive covenants to check that they reflect any changes in the employee's role or their spheres of influence or in the wider organisation.

If a senior individual indicates that they will be leaving, and, in particular, if they are intending to join a competitor, check their employment contract and put them on notice before they leave of any restrictive covenants and confidentiality obligations in their contract. They should be reminded, also, of their broader express and implied obligations to not do anything that harms the business. You may consider asking them to sign specific undertakings not to use certain material or data. This will provide additional protection, if signed, giving you a right to claim for a breach of those specific undertakings should the individual go on to use the material. These steps may be enough to prevent a later breach.

2. Gather the evidence

If there is a risk that a departing senior individual intends to take trade secrets or other important confidential information with them, you should check if any confidential information has, or may have, been taken.

Create a checklist and include items such as client data, designs, formulations, codes, strategy documents and other relevant documentation. Your legal advisors can help at this stage by instructing IT experts to check whether specific material has been despatched outside the company (by email, or by other means, such as onto a memory stick). It is vital to preserve these details as cases involving misuse of confidential information often turn on the quality of this type of evidence.

3. Manage reputational risks

Consider instructing a law firm early to advise on reputation management. They can advise the extent to which you can monitor social media activity (for example re-engaging with old contacts, or a LinkedIn activity "splurge") to gain advance warning of departures.

Separately, if the departure is particularly newsworthy – or if the former employee makes untrue statements about your organisation – think seriously about engaging a reputation management specialist to deal with allegations that may reach the press.

4. Aim for early resolution

If you suspect foul play, then you may, depending on the evidence, have a claim for breach of confidence, either by way of a breach of a confidentiality clause in the employee's employment contract or at common law. In part, this will depend on the type of information in play – if it is a true "trade secret" then protection is more likely to be available than if it is "mere confidential information", which although confidential to the original company, may have become part of the ex-employee's skill and knowledge. Analysis of the type of information involved will form a major part of any court proceedings involving allegations of breach of confidence.

Initially, however, consider approaching both the ex-employee and their new employer to see if the situation can be resolved without going to court, for example by way of entering into undertakings not to use the information. This will put the new employer on notice that the ex-employee is being pursued for misuse of confidential information, and depending on their attitude, may assist in preventing the ongoing misuse of the information.

5. Consider legal proceedings

If an early resolution is not possible, and you believe that there has been a breach of confidence, then you may consider applying to the court for an injunction to prevent the ex-employee from using, or continuing to use, the relevant confidential information.

If the information is already being used to your company's detriment, you can apply for an interim injunction which can be granted on an expedited basis as a "holding" measure to preserve your organisation's information, pending a more detailed enquiry as to the nature of the material and the rights of the ex-employee to that information. If at a final hearing (which would be sought on an accelerated "speedy trial" basis), the court rules that there has been a breach of confidence, then an interim injunction can be made permanent, both against the ex-employee and against the new employer, if that employer ought reasonably to have been aware that the information was confidential.

6. Select the right external counsel

When selecting external counsel to support you, ask for evidence of a track record in this area of the law, or indeed multiple areas of law. Aim to assure yourself that a prospective law firm can provide comprehensive support, forensic analysis and a team of specialists in the issues that matter to you.

An impactful legal team will work across the disciplines (usually the areas of Employment, Intellectual Property, Data Privacy and Disputes) to co-ordinate strategy around key departures, including managing the risks of losing confidential information or trade secrets (instructing IT experts to gather essential evidence urgently where necessary), as well as enforcing contractual rights (such as restrictive covenants) and dealing with reputational issues arising from a departure.

For an overview of how restrictive covenants work in practice, how the law may change in the future and how to navigate commonly encountered challenges related to post-termination restrictions, listen to our Work Couch podcast Business protection (Part 1): When a senior executive leaves.

Tips On Implementing Menopause Support Policies At Work

Tue, 16 May 2023 16:15:00 +0100

Slowly but surely, we are breaking down the taboo of a natural process experienced by half the adult population that in the past was, at best, quietly tolerated and hidden away. There is, however, more to do and more that employers can do to shift the dial.

The True Cost of Menopause

Every person's experience of menopause is unique to them but commonly reported symptoms include: hot flushes, brain fog, memory problems, low self-esteem, fatigue, joint pain, depression, anxiety, heart palpitations and sleep problems.

While a quarter experience no noticeable symptoms, 75% are affected by their symptoms and 25% report severe symptoms.¹ These symptoms can be debilitating and may negatively affect relationships, physical and mental health, work and career prospects.

The statistics on the impact that menopausal symptoms can have on someone's mental well-being are especially brutal: In 2021, the Office of National Statistics found that the age-specific suicide rate among women is highest in those aged between 45 and 49, an age when perimenopause typically occurs.²

Meanwhile, the career impact is stark. According to research by the Fawcett Society,³ 1 in 10 women have left a job due to their menopausal symptoms, while 14% had reduced their hours and 8% had chosen not to apply for promotion.

Why Is Menopause a Business Issue?

As the economy continues to weather the financial crisis, the government announced in its March budget ambitious plans to address worker shortages and skills gaps. This includes encouraging the over-50s to return to the workplace, as well as imposing an increase to the state pension age to 67 between 2026 and 2028, and 68 between 2044 and 2046.

There is therefore a growing drive to boost the numbers of older people in the workforce.

Combine this with the oft-cited war for talent, and it is clear that employers will need to find ways to attract and retain this precious resource and a key ingredient of this is supporting employees who are affected by menopause — a group that currently represents the fastest growing worker demographic in the United Kingdom.

Ultimately, everyone will either experience menopause themselves or will have a colleague, friend or relative who is going, or will go, through it. So, it really is an issue for everyone to learn about and engage with, particularly anyone with a management or leadership role.

Legal and Political Developments

The government has accepted that better access to treatment is necessary and announced that from April 1, hormone replacement treatment, or HRT, will be cheaper and therefore more accessible to those who are eligible.

Some commentators have said this latest move by the government is not enough, with The Guardian⁴ recently reporting that demand was so high that the U.K. National Health Service website used to access the HRT payment certificate crashed.

In another blow to progress, in January, the government rejected calls to make menopause a protected characteristic in its own right under the Equality Act 2010.

Campaigners argue that the current law is not fit for purpose because many women and others who are treated less favourably because of their menopausal symptoms are excluded from definitive employment law protection.

This is because the law protects only those people where their discrimination claim relates to age, sex or disability.

Many potential claimants do not meet these criteria. For example, women who encounter perimenopausal symptoms much younger than the average age may not succeed with an age discrimination claim.

Similarly, where a person's symptoms are intermittent and therefore do not constitute a disability, they will not succeed with a disability discrimination claim.

Direct sex discrimination claims are also problematic as a female claimant would have to show that a male comparator with a similar condition would not have been treated in the same way.

While the government has made some concessions by appointing Helen Tomlinson, head of talent in the U.K. and Ireland at Adecco Group, as an independent menopause champion⁵ "to drive forward work with employers on menopause workplace issues and to spearhead the proposed collaborative employer led campaign," it has stopped short of rolling out policies on menopause leave.

Despite the government watering down its potential package of support, a growing number of employers have themselves taken ownership of the issue with over 2,000 people signing up to menopause workplace pledge with well-being of women⁶ to take positive action to ensure that everyone who is going through menopause is supported.

Meanwhile, Boots UK Ltd. and the Timpson Group have shown their commitment by agreeing to pay for their employees' HRT prescriptions.⁷

As a result, many employers are looking at how to best support affected employees as part of their wider diversity, equity, inclusion and belonging strategies.

Conversely, failing to grasp this opportunity to improve gender equality risks an organization's ability to attract, recruit and retain a valuable group of employees — who are often at the peak of their experience and knowledge at the time they begin to face menopause-related barriers in the workplace.

Supporting and Retaining Affected Employees

According to 2021 research by the digital health and wellness platform Peppy Health Ltd.,⁸ although 54% of employers in the U.K. did not yet have in place any specific menopause support, 21% were planning to introduce dedicated support measures in the following 12 months.

So, although there are no imminent changes to the law on menopause discrimination, there is a definite trend toward rolling out menopause support throughout U.K. businesses.

Employers should review all their workplace policies and procedures to assess what changes may be required to ensure that menopause support is fully embedded in the organization's work practices. Some employers have chosen to implement a dedicated menopause policy to outline the various types of support on offer and how employees can access it.

However, while such policies are fundamental, they also need to be reflected in the day-to-day culture of the organization if the aim is to create sustainable positive change.

Anecdotally, some have reported that the most difficult challenge can be discussing their menopausal symptoms with their manager, especially if their manager is male.

Therefore, opening up channels for communication with others who understand what they are going through is vital to equip women and others experiencing menopause with the confidence to approach their line manager.

Menopause cafés or support groups can provide essential peer-to-peer support, while providing access to a qualified menopause adviser can be a positive first step for employees to understand their symptoms and treatment options.

Many employers have introduced digital menopause support platforms, such as Peppy, to facilitate access to help in a confidential and convenient way.⁹

A growing number of employers have also introduced menopause leave, whereby their absence procedures are adjusted so that a person's absences for menopausal symptoms will not trigger the employer's formal absence procedure. Consequently, employees are not penalized for taking time off for menopausal symptoms.

Depending on the sector in which your organization operates, physical adjustments to the workplace such as installing desk fans or providing uniforms in breathable materials can provide welcome relief to those suffering with hot flushes.

A key element of menopause support is to educate the whole workforce on menopause and its effects, for example by way of webinars or talks with an expert and considering specific learning for those with a people management role.

The aim is to ensure everyone understands how menopause manifests itself and the reasons why support is necessary and gives employers an opportunity to address any concerns.

For example, some people may argue that menopause support is in some way unfair or discriminatory to those who will not experience menopause.

However, it is important to emphasize that, much like any other strand of diversity and inclusion, if one is not personally affected by those particular challenges or barriers, that is a privilege.

Employers can be clear across their workforce that an inclusive culture requires leaders and other employees to recognize this and each to play their part in helping to reduce those challenges so that there is as level a playing field as possible. This is key to creating truly equitable and meritocratic work environments.

Whatever menopause support your organization chooses to implement, regularly communicating the support options to employees and how they can take advantage of it is critical to ensure that employees are aware of the help available and feel confident to access it.

Conclusion

Finally, although menopause is not a protected characteristic in and of itself under discrimination legislation, it could still form the basis of employment tribunal litigation, for example, when the employer ignores or does not adequately deal with banter or jokes by its employees about menopause.

In the 2020 case of Best v. Embark on Raw Ltd.,¹⁰ an employment tribunal found that a colleague's comments to the claimant about menopause and the continued pursuit of the topic constituted unwanted conduct, which had the effect of violating the claimant's dignity and creating a humiliating environment for her at work. Consequently, her claim of unlawful harassment was successful.

A word of caution, therefore, that menopause support at work will only be truly effective where it is reflected in a genuinely inclusive workplace culture and in the lived experience of the people working in that environment.¹¹

This article was first published in Law360

¹https://thebms.org.uk/

²Sucide patterns by age

³https://www.fawcettsociety.org.uk/

⁴Government slashes cost of hormone replacement therapy prescriptions in England

⁵Government appoints first menopause employment champion to improve workplace support

⁶Wellbeing of women

⁷Boots become the first pharmacy to offer HRT medication without a prescription; Timpson praised for offering to pay for HRT prescriptions for staff menopause

⁸https://www.personneltoday.com/hr/half-of-employers-still-failing-to-support-menopause/

⁹https://peppy.health

¹⁰Best v Embark on Raw Ltd ET3202006/20

¹¹The impact of menopause in the workplace

The Work Couch: Flexible Working

Wed, 03 May 2023 12:51:00 +0100

Since the pandemic prompted a major shift in how, when and where people work, the ability to work flexibly is now a key driver for recruitment and retention. The Government has confirmed its intention to make the right to request flexible working a "day one" default right, while a growing number of businesses have trialled and opted to implement permanently a four-day working week - with no loss of pay.

But how can businesses make flexible working work for their unique needs? What are the factors to bear in mind from a legal and practical perspective? And what changes to the law can we expect to see?

To guide us through this topic, Ellie Gelder talks to two employment law experts, Victoria Othen and Kelly Thomson, about:

Various forms of flexible working;
The current law on eligibility and employer obligations;
Potential legal claims relating to how the employer handles a request;
Addressing worker productivity concerns;
Expected changes to the law on the right to request flexible working;
Kelly and Victoria's personal experiences of working flexibly and the impact it has had on their careers;
The global pilot scheme for businesses to introduce a four-day working week with no loss of pay for employees; and
How to manage the risks of flexible working unintentionally excluding others.

*Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

The Work Couch: Preventing sexual harassment post-#MeToo (Part 1): How do UK and Australian laws compare?

Wed, 19 Apr 2023 11:40:00 +0100

In recognition of April being sexual assault awareness month in Australia, we decided to devote our fourth episode to the topic of workplace sexual harassment at work. Teaming up with our Terralex partner firm Lander & Rogers, we take a look at how the relevant employment law protections in the UK and Australia measure up.

Ellie Gelder talks to two employment law experts on either side of the world, Aaron Goonrey and Kelly Thomson, about:

The legal definitions of sexual harassment in Australia and the UK;
Work parties and sexual harassment since the pandemic;
Dealing with banter and jokes at work;
Changes to the law on sexual harassment in Australia, following the enactment of the Respect at Work Act 2022;
The role of psychological safety;
Third-party harassment and proposed changes to UK law;
Intersectional challenges and considerations;
The role of active allyship; and
Key takeaways for employers dealing with sexual harassment allegations.

*Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording.

The Work Couch is not a substitute for legal advice.

An introduction to TUPE (Part 1): Why does it matter?

Wed, 05 Apr 2023 09:25:00 +0100

In our third episode and part one of our mini-series on TUPE (transfer of undertakings and protection of employment), we explore why TUPE matters to businesses and their people; the circumstances in which a TUPE transfer can arise; and how the law protects employees who are affected by a business transfer.

Ellie Gelder talks to RPC's resident TUPE experts Patrick Brodie and Kelly Thomson about:

What TUPE means and its fundamental purpose;
The types of business transfer that will come within the scope of the law on TUPE and how to identify a "relevant" transfer;
How TUPE applies to service provision changes, including outsourcing and insourcing;
Potential liabilities where TUPE obligations are breached and areas for dispute;
The practicalities of engaging with the workforce and the importance of timing; and
The extent to which Brexit may impact on EU-derived TUPE legislation.

*Please note the below podcast will not run on Internet Explorer

We hope you enjoyed this episode, if you did please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording. The Work Couch is not a substitute for legal advice.

The Work Couch: How is the Cost of Living crisis affecting DEIB?

Wed, 22 Mar 2023 10:05:00 Z

In our second episode, we lift the lid on how the cost of living crisis is affecting diversity, equity, inclusion and belonging (DEIB); the red flags employers should look out for; and the practical steps organisations can take to help alleviate the impact of the economic crisis for their workforce.

Ellie Gelder talks to partner, and recently named WIPL Ally of the Year 2023, Kelly Thomson about:

The unique, and often hidden, financial challenges faced by different communities, including people with disabilities and the LGBTQ+ community;
Spotting the signs of financial hardship that might be affecting a person's ability to work effectively or their mental wellbeing, and red flags to watch out for;
Intersectional challenges to bear in mind;
Practical steps businesses can take to support affected employees; and
How the cost of living crisis is a key opportunity to ensure DEIB is baked into your organisation's DNA.

*Please note these podcasts will not run on Internet Explorer

We hope you enjoyed this episode. If you did, please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

The Work Couch would like to thank Kelly Thomson for her invaluable expertise on this topic.

All information is correct at the time of recording. Please note that this podcast was recorded before the UK Government's Spring 2023 budget.

The Work Couch is not a substitute for legal advice.

The impact of menopause in the workplace

Wed, 08 Mar 2023 09:26:00 Z

We also hear first-hand from one of our RPC colleagues about how the menopause has impacted her at work, the challenges she faced, and the support that she has found most helpful.

Ellie Gelder talks to discrimination law guru and part-time employment judge Victoria Othen and head of Resolve and member of RPC's menopause working group Lesley Hannah about:

What we mean by peri-menopause and menopause;
Why the current law does not always protect employees who experience discrimination because of their menopausal symptoms;
Intersectional nuances and how the menopause affects some communities very differently from others;
The Government's recent rejection to calls to make the menopause a protected characteristic;
Practical steps businesses can take to support affected employees;
How RPC has implemented its own package of support measures.

*Please note the below podcast will not run on Internet Explorer

We hope you enjoyed this episode, if you did please subscribe to be notified when new episodes release.

You can subscribe on Apple Podcasts and Spotify to stay up to date with the latest episodes.

All information is correct at the time of recording. The Work Couch is not a substitute for legal advice.

Deadline for responses to hybrid / distance working review brought forward

Fri, 14 Oct 2022 09:20:00 +0100

As part of last month's so-called 'mini-Budget' it was announced that the OTS is being shut down. One effect of this is that the deadline for responses to this Review has been brought forward to 28 October 2022 (originally 25 November). The wider fallout from the mini-Budget may have resulted in this shortened timetable going unnoticed.

The Review

The catalyst for the Review, of course, was the Covid-19 pandemic. Many (if not all) businesses have found that their post-pandemic working practices have changed to varying degrees. Some businesses have given up their (pre-pandemic) fixed office locations. Conversely, for some sectors, where a worker's actual presence cannot be decoupled from the performance of their work, working arrangements may continue unchanged. Otherwise, organisations have settled into more flexible, or 'hybrid' practices.

For the purposes of the Review:

Hybrid working means that employees must (under the terms of their engagement) spend some of their contracted time at their employer's workplace, but there is flexibility as to the remainder of their contracted hours
Distance / home working means that either there is no requirement to work from the employer's workplace or there is no such workplace available. In other words the employee is free to choose where, physically, they can perform their duties (typically, from home)

The Review is intended to be a high-level review of current working practices and in particular will consider (1) whether present trends in this area have resulted in more cross-border working, and (2) whether these trends are causing difficulties for employers and employees in terms of the current tax rules in this area.

The Review includes a number of suggested questions to which respondents are invited to answer. Very broadly these questions fall into two distinct categories in keeping with the scope of the Review.

A first set of questions focuses on businesses that have seen a rise in the number of employees working outside of the business's 'home' jurisdiction (whether that means employees of UK businesses now working outside of the UK or employees now working in the UK for overseas businesses). This set of questions is framed both from an employment tax (payroll and social security) perspective as well as from a corporate income tax perspective (in particular the potential risk of such working practices giving rise to a 'permanent establishment' of the employer business outside of its 'home' jurisdiction).

The second set of questions looks at purely domestic (UK) tax issues and the potential challenges now faced by businesses in terms of correctly applying the tax rules around employee expenses / allowances where hybrid or distance working practices are adopted. A specific question asks for examples of difficulties encountered under the existing "permanent" (as opposed to "temporary") workplace tax rules, where hybrid working is in place.

Responses

Review responses are requested by email by no later than Friday 28 October 2022. Our team of experts would be happy to help you frame any responses you may wish to make. We would equally be delighted to talk to you about any concerns you might have in this difficult area.

The OTS's 'call for evidence', including details as to how to respond to the Review, can be viewed here.

Hong Kong's Legislative Council approves Employment Ordinance amendments to address employment issues arising from anti-epidemic measures

Thu, 16 Jun 2022 11:22:00 +0100

The main amendments to the Employment Ordinance ("EO") under the Bill are:

Absence from work due to compliance with a statutory restriction on movement, such as mandatory testing, quarantine or isolation, under the Prevention and Control of Disease Regulation (Cap 599A) or Prevention and Control of Disease (Compulsory Testing for Certain Persons) Regulation (Cap 599J) ("Cap 599 Requirement"), will not be a valid reason for dismissal or variation of contract;
Failure to comply with a legitimate vaccination request will be a valid reason for dismissal or variation of contract; and
The EO's definition of “sickness day” is expanded to include a day on which an employee is absent from work by reason of his/her compliance with a Cap 599 Requirement.

The Bill will come into effect on a later date and its amendments will not have retrospective effect.

Employers should be aware of these amendments, review their internal policies where necessary and ensure that their administrative staff fully understand the effect of these changes. When in doubt, employers should seek legal advice to ensure compliance with the law.

Please refer to our previous article for more details on the Bill's amendments here.

Our team at RPC are widely recognized as leading employment lawyers in Hong Kong. We are of the few specialist employment law practices in Hong Kong and we act for both employers and employees on contentious and non-contentious matters.

Please do not hesitate to contact our Partner and Head of the Employment Practice in Hong Kong, Andrea Randall (andrea.randall@rpclegal.com / +852 2216 7208) for any queries regarding the issues raised in this article or any employment law related queries you may have.

All material contained in this article is provided for general information purposes only and should not be construed as legal, accounting, financial or tax advice, or as opinion to any person or specific case. RPC accepts no responsibility for any loss or damage arising directly or indirectly from action taken, or not taken, which may arise from reliance on information contained in this article. You are urged to seek legal advice concerning your own situation and any specific legal question that you may have.

How should employers protect personal data? A review of the Nikkei data breach

Mon, 13 Jun 2022 11:00:00 +0100

Hong Kong's Data Privacy Laws

The Ordinance provides that data users, such as employers, must comply with Data Protection Principles ("DPP") when collecting, handling and using personal data of data subjects (i.e. the individual who is the subject of the personal data). Typically for employers, this would include its employees' and clients' personal data (such as the individual's identity card number, address, contact number and banking account records). If that personal data is collected, handle and or used, the employer will need to comply with the following DPPs:-

i. DPP1: Personal data must be collected in a lawful and fair way, for a purpose directly related to a function/activity of the employer. All practicable steps must be taken to notify the data subjects of the purpose of data collection, and the classes of persons to whom the data may be transferred. Employers can comply with these notification requirements by preparing a Personal Information Collection Statement.

ii. DPP2: Personal data must be accurate and up-to-date, and kept no longer than necessary. Employers should ensure that they practice prompt erasure of personal data that is no longer required for which the data is collected and used. For example, employers should erase personal data belonging to unsuccessful job applicants.

iii. DPP3: Personal data must only be used for the purposes for which they were collected or a directly related purpose, unless with the data subject's express and voluntary consent.

iv. DPP4: Employers must have security measures in place to ensure the security of personal data and protect against unauthorized or accidental access, processing, erasure, or use by other people without authority.

v. DPP5: Employers must take practicable steps to make personal data policies and practices known to the public regarding the types of personal data it holds and how the data is used.

vi. DPP6: Data subjects must be given rights of access to their personal data and the right to correct any inaccurate record. Employers should be aware of the manner and timeframe for compliance with such requests.

The Nikkei Data Breach

On 17 March 2021, Nikkei lodged a data breach notification with the PCPD that a hacker had hacked into six staff email accounts and forwarded emails to two unknown email addresses. The incident led to the leakage of personal data of over 1,600 customers, including names, email addresses, addresses, company names, telephone numbers and credit card information. As a result, Nikkei was held to have contravened DPP4 by failing to take all reasonable measures to ensure that the personal data held by it is protected against unauthorised or accidental access, processing, erasure, loss or use.

The PCPD found that, Nikkei, at the time of the investigation, had in place a set of "Information Management Regulations" which set out the overall security management framework with respect to all company-owned information. Staff were verbally instructed to thoroughly study the content of this policy, which was held in a shared folder accessible to all staff members. In May 2018, Nikkei Inc. issued the “Table of Requirements for Security Management Measures” (Security Policy of the Parent Company) providing practical guidance on the security management measures applicable to the entire group of companies which Nikkei belonged to (including Nikkei). These included a password policy setting out the minimum length and complexity that a password should have.

Whilst most corporations are likely to have internal IT policies similar to Nikkei's to govern the handling of personal data, nonetheless, the PCPD still found four deficiencies in the security of Nikkei's email system at all material times:

i. Weak password management;

ii. Retention of obsolete email accounts;

iii. Lack of security controls for remote access to the email system; and

iv. Inadequate security controls on information system.

In light of these findings and notwithstanding its existing IT polices in place, the PCPD found that Nikkei failed to take all practicable steps to ensure that its customers' personal data was protected against unauthorized or accidental access, processing or use, thereby, contravening DPP4(1) of the Ordinance. The PCPD issued an enforcement notice to Nikkei directing it to remedy and prevent recurrence of the contravention.

Recommendations for employers

Employers are encouraged to consider the following good practices to ensure compliance with the DPPs. For example:

i. Establish detailed personal data management policies and practices and ensure that its employees are fully informed and understand these policies;

ii. Ensure that the Personal Information Collection Statement are updated and cater to the purpose each time personal data is collected;

iii. When data processors are engaged to process the personal data collected, ensure that there are proper contractual means to ensure that the data processor is compliant with the data security requirements;

iv. Have in place a Privacy Policy Statement so that data subjects are aware of employer’s privacy policies and practices in relation to the personal data it handles;

v. Have in place a detailed response mechanism in the event of data breaches;

vi. Have in place a proper information security policy to incorporate a strong password management policy, a mechanism for regular deletion of expired or obsolete email accounts, and a mechanism for regular monitoring and auditing the use of email accounts;

vii. Formulate effective measures to ensure staff awareness and compliance with the information security policy;

viii. Engage independent data security experts to conduct routine reviews and audits of the security of information systems, including email systems, such as security monitoring, alerting functions to alert system administrators to any access or login to the system from unusual or unknown IP addresses;

ix. Provide up-to-date training and education to employees on information security with proper records of training processes and measurements of participation and effectiveness.

Conclusion

It is important that employers understand and comply with the Ordinance, as breach of statutory provisions may lead to significant fines, civil and criminal liability, and loss in employee and/or customer confidence and reputational damage.

RPC regularly assist and advise employers on compliance with the Ordinance and our work includes:-

drafting data policies and personal information collection statements;
reviewing data processing and transfer agreements;
assisting with and responding to data access requests;
advising on data breaches; and
defending enforcement actions by regulatory agencies.

Please do not hesitate to contact us if you have any queries on this article or require advice and assistance on data protection in the workplace.

Hong Kong's Legislative Council approves Cancellation of MPF Offsetting

Thu, 09 Jun 2022 10:47:00 +0100

Once the legislation is enacted, employers will no longer be entitled to offset long service payment or severance payment against their mandatory and voluntary contributions to the Mandatory Provident Fund (MPF), Hong Kong's pension system.

This mechanism has been divisive for some time, particularly during the pandemic and waves of business closures which led to a drain on workers' retirement funds. Last year, over HK$6.6 billion was offset in employees' pension funds.

The legislation will not come into effect until 2025. In the meantime, employers should ensure that they follow the latest legal developments and are familiar with what payments are due on termination. Employers are reminded that the Employment Ordinance requires that all statutory terminal payments be made within 7 days of termination.

All material contained in this article is provided for general information purposes only and should not be construed as legal, accounting, financial or tax advice, or as opinion to any person or specific case. RPC accepts no responsibility for any loss or damage arising directly or indirectly from action taken, or not taken, which may arise from reliance on information contained in this article. You are urged to seek legal advice concerning your own situation and any specific legal question that you may have.

Dismissal for refusing to attend work during Covid-19 lockdown: automatically unfair?

Wed, 25 May 2022 14:32:00 +0100

Background

The background to this case relates to the first Covid-19 lockdown in March 2020. At that time, little was known or understood about Covid-19 (including its origins, means of transmission, infection rates, outcomes or prognoses for those who contracted the virus, and other risk factors).

Mr Rodgers, a laser operator for Leeds Laser Cutting Ltd, developed a cough on 25 March 2020. He left work as normal on 27 March 2020. Two days later, he emailed his manager stating that he would have to stay off work "until the lockdown has eased". He cited the fact that his child, who has sickle cell anaemia, would be extremely unwell if he caught the virus, as his reason for this.

Mr Rodgers did not return to work and, on 26 April 2020, he received his P45 from the employer. He subsequently brought a claim in the employment tribunal for automatically unfair dismissal on health and safety grounds.

What was the legal basis of the claim?

Mr Rodgers' claim against his former employer was based on the protection afforded by s.100(1)(d) of the Employment Rights Act 1996. This provides that a dismissal will be treated as automatically unfair where the reason for the dismissal is that "in circumstances of danger, which the employee reasonably believed to be serious and imminent, and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work".

Decision

The EAT agreed with the original tribunal hearing the case, which had ruled that Mr Rodgers had not been automatically unfairly dismissed. Important points mentioned were:

The employer had implemented various measures to protect against Covid-19, including: social distancing; wiping down surfaces; providing face masks; telling staff not to congregate at break times; and emphasising the importance of hand washing.

There was some scepticism as to whether Mr Rodgers believed that there were "serious and imminent" circumstances of danger at work that prevented his return to work, mainly because he:

worked in a large workplace ("about the size of a football pitch") where, typically, only five people would be working; had remained at work from the date the lockdown was announced on 24 March 2020 until he left at his normal time on 27 March 2020;
could generally maintain social distance at work;
had not asked for a mask, although they were available;
had, during his period of self-isolation, driven a friend to hospital; and
had worked at a pub during the lockdown;had not raised meaningful concerns or complaints with the employer, which would have indicated
to the employer his fears that there were circumstances of imminent danger in the workplace.

Rejecting the claim, the original tribunal had held that Mr Rodgers' decision to stay off work was not directly linked to his working conditions. His concerns about the virus were general and not attributable to the workplace.

Take away points / observations

While this case failed on the facts, the EAT has acknowledged that there may well be situations brought about by the Covid-19 pandemic that cause an employee to reasonably believe there to be circumstances of serious and imminent danger. Therefore, we expect to see successful claims in future. Cases will always turn on their facts - consequently, the Covid-19 pandemic and issues it raises could give rise to circumstances of danger that an employee could reasonably believe to be serious and imminent.

It is important to bear in mind that successful automatically unfair dismissal claims do not require the minimum two years of continuous service. And, more importantly, the statutory cap on the compensatory award (currently £93,878) will not apply where the automatically unfair reason for dismissal is related to health and safety. The potential exposure to such claims is, therefore, far-reaching and we will closely monitor how this area of case law develops.

Covid-19 and health and safety concerns may crop up (and indeed have already cropped up) in the tribunal in converse situations: where the employer has instructed a vulnerable employee, for example someone who is older or pregnant, to stay away from the workplace to reduce the risks to their health and safety. RPC's employment team has experience of advising on these types of claim and has recently successfully defended an age discrimination claim in the employment tribunal against a major retail employer. In that case, the employer instructed all workers aged 60 or over to remain at home on full pay when the pandemic was still in its infancy and knowledge at the time indicated that workers of a certain age group were at significantly greater risk.

The employee in question, aged 62, brought a claim, alleging age discrimination – he said that it was an act of direct age discrimination for older workers to be effectively excluded from the work place. He himself wished to attend work as normal. The tribunal found in favour of the employer – it ruled that, in the circumstances, the employer's actions were not age discriminatory – at the time the instruction was given for older employees to remain at home, little was known about Covid-19, but it was generally accepted and reported that age was a factor which was likely to increase the risk of serious illness.

If you or your organisation require assistance on this area, please get in touch with Charlotte Reid or Patrick Brodie.

How to prevent discrimination in the Workplace: practical advice for Hong Kong employers

Tue, 17 May 2022 13:53:00 +0100

Introduction

Hong Kong law prohibits discrimination in the workplace. Unless an exemption applies, it is unlawful to directly or indirectly discriminate on the grounds of sex, marital status, pregnancy, breastfeeding, disability, family status and race (each a "protected characteristic").

Direct discrimination occurs when a person is treated less favourably than another person because of a protected characteristic. Indirect discrimination occurs when a condition or requirement, which is not justifiable, is applied to everyone but in practice adversely affects persons who possess that protected characteristic.

Discrimination is prohibited during various stages of the employment relationship. This includes prior to the commencement of employment i.e. during recruitment (including the advertisement of vacancies), as well as during the currency of employment (typically, we see complaints raised in relation to terms of employment, opportunities for promotion, transfers, training, provision of benefits, facilities or services, renewal of contracts, disciplinary action, and dismissal).

There are steps that an employer can take to prevent discrimination in the workplace, and it certainly pays to do so. Where discrimination/harassment behaviour is ignored or unresolved, it directly affects employee morale, productivity and the employer's reputation.

Moreover, employers in Hong Kong are vicariously liable for the actions of their employees, whether or not such actions were done with the employers' knowledge or approval. This means that where an employee commits an unlawful act under the discrimination ordinances, both the employer and the employee would be liable for such actions. An employer may be able to defend itself against such claims if it can establish that it took such steps as were reasonably practicable to prevent the offending employee from committing the unlawful act.

This article looks into ways which an employer can prevent discrimination in the workplace and mitigate against claims of discrimination and vicarious liability.

Understand Hong Kong's discrimination law

First and foremost, employers should familiarize themselves with Hong Kong's discrimination ordinances. This will educate employers on the kind of behavior that constitute or may constitute discrimination in the workplace so that they are able to detect suspected discrimination before they escalate to complaints and can respond readily, appropriately and confidently when complaints are made.

Employers should also ensure that employees are aware and understand Hong Kong's discrimination laws and regularly educate employees so that everyone contributes to creating a discrimination-free workplace environment.

Through education and training, employees will understand what constitutes appropriate workplace behavior, what to do in the event of discrimination incidents, and the potential consequences of unlawful discriminatory behavior.

Generally speaking, employers should arrange anti-discriminatory talks and training programs focusing on individual rights and responsibilities on a regular basis for all employees. Employers may further arrange for managerial level employees to attend specialised training for their soft skills so that they know how to handle these sensitive situations.

Formulate a written policy that details rules and procedures

Employers should formulate and implement an equal opportunities policy and an anti-sexual harassment policy which emphasize zero tolerance for any form of discrimination or harassment in the workplace and promote diversity, inclusiveness and equality of opportunity for all. Employers should put provide copies of these policies to every employee upon their joining or when these policies are launched internally and require that employees acknowledge their understanding of the policies.

These policies should act as a set of practical guidelines for employers and employees to follow and to help them understand the type of conduct that constitutes or may constitute discrimination, the ways to avoid such conduct and the consequences of breaching the guidelines in order to achieve a discrimination-free workplace environment collectively.

These policies may include:

Reduce unconscious bias in the hiring process by adopting uniform selection criteria catered to each job opening based on experience, skills and suitability instead of individual perceptions, which can be used as an objective tool to select the most suitable candidate for a position, for example, the selection criteria should avoid asking applicants for their photos at the early stages of recruitment to avoid unconscious bias that may be formed from photos, such as, race or facial marks;
Adopt a standardized interview process by asking candidates the same set of open-ended questions that focus on determining one's suitability for a position and avoid asking questions framed in a way that may be perceived as collecting personal information about one's race, marriage status, health condition, family mental history, disability, etc.;
Avoid mandating pre-employment health checks unless the examination is necessary to determine whether an applicant can fulfil the inherent requirements of the position or whether an applicant has any transmittable disease falling within Schedule 1 of the Prevention and Control of Disease Ordinance (Cap. 599), such as tuberculosis, AIDS, dengue fever, COVID-19, so as to ensure the health and safety of other employees in the workplace;
Accommodate job applicants' specific needs where possible during recruitment, for example, provide an accessible place for a wheelchair bound applicant to attend an interview;
Where possible, the interview processes should overseen by a selection panel consisting of three to four persons of both male and female from different departments;
Create a set of clear and uniform selection criteria when deciding on employee promotion, training, transfer, job evaluation, dismissal and layoff and maintain proper records of fact-based evaluations to avoid future complaints of discrimination;
Inform employees of the key personnel for handling discrimination concerns and complaints so they know the appropriate personnel to approach if and when these unfortunate incidents occur, which in turn ensures that these incidents are resolved promptly and effectively; and
Set out detailed grievance procedures for handling discrimination complaints, such as the different strategies for dealing with complaints by informal processes and formal investigations.

Employers should ensure that they regularly review and update these policies so that they are compliant with the latest legal requirements.

Establish a process for resolving discrimination complaints

Employers should establish a detailed process to handle and resolve complaints. This ensures that those in charge of handling complaints have clear guidelines and can follow the standard procedures at each step of the handling process. The process should emphasize an objective and consistent approach to investigations so that all complainants and complainees are treated fairly.

The earlier an employer learns of an employee's complaint, the better. An employer can only fix an issue if it is made aware of it. Finding out about complaints earlier may give the employer a fighting chance of resolving it, addressing it and even if it doesn't – might give the employer a defence to a lawsuit.

Where an employer receives a complaint, it should avoid taking any action that could be perceived as retaliatory to the complainant. Employers should refrain from terminating an employee for raising a complaint. If an employer were to do so, regardless of how illegitimate the complaint may be, by firing an employee, the employer may give the employee legitimate grounds to sue the company for their dismissal.

Obtain legal advice

Employers are encouraged to obtain legal advice to ensure that their anti-discrimination policies are compliant with Hong Kong's discrimination laws. Moreover, whenever in doubt of how to handle discrimination complaints, employers should promptly seek legal advice to avoid being accused of failing to take reasonable steps to handle them. The earlier legal advice is sought, the better. This will enable strategies to be considered and formed at the beginning. More often than not, it is better to get things right at the first time of asking than to try to tidy up any mistakes.

Conclusion

Creating a safe and harmonious working environment increases employee productivity, decreases turnover rates, and encourages collaboration and cooperation amongst employees, which in turn goes to benefiting employers in the end. As such, it is vital that employers start with preventing discrimination/harassment by having in place necessary policies as well as providing appropriate training to employees of all rankings. Even in the unfortunate event of such incidents occurring in the workplace, employers will still have a set of guidelines to resolve the matter effectively and efficiently. Where matters escalate, employers should seek legal advice without delay and prepare for any defence in earnest.

Our team at RPC are widely recognized as leading employment lawyers in Hong Kong. We are of the few specialist employment law practices in Hong Kong and we act for both employers and employees on contentious and non-contentious matters.

Please do not hesitate to contact our Partner and Head of the Employment Practice in Hong Kong, Andrea Randall (andrea.randall@rpclegal.com / +852 2216 7208) for any queries regarding the issues raised in this article or any employment law related queries you may have.

All material contained in this article is provided for general information purposes only and should not be construed as legal, accounting, financial or tax advice, or as opinion to any person or specific case. RPC accepts no responsibility for any loss or damage arising directly or indirectly from action taken, or not taken, which may arise from reliance on information contained in this article. You are urged to seek legal advice concerning your own situation and any specific legal question that you may have.

Hong Kong Wage Subsidy Update – Government announces new round of Employment Support Scheme

Wed, 27 Apr 2022 11:42:00 +0100

The details of the 2022 ESS are as follows:

1. Eligible Applicants

Employers

All employers who :-

Are not an employer listed in Part I of the Exclusion List (see below);
have participated in MPF Schemes or set up ORSO Schemes on or before 31 December 2021;
have not been involved in winding up, deregistration or striking off process or has not become dormant; and
Have fully settled all clawback/penalty of 2020 Employment Support Scheme (if any) on or before 10 May 2022.

The "Exclusion List" includes government and statutory bodies, public institutions, government-funded organizations and government outsourced contractors including hotels dedicated for isolation or quarantine purposes.

Self-Employed Persons

Self-employed persons who have successfully created an MPF "Self-Employed Person" account on or before 31 December 2021 and have not terminated such account at the time of application are also eligible for the 2022 ESS.

2. Amount of Subsidy

Employers

Eligible employers will receive:

Subsidy of HK$8,000 per full-time employee earning a monthly income of HK$8,000 or more;
Subsidy of HK$4,000 per employee earning a monthly income between HK$3,000 to HK$8,000; or
Subsidy of HK$4,000 per employee aged 65 or above earning a monthly income less than HK$3,000

Note: the salary cap of HK$30,000 announced by the Government earlier has been removed

Self-Employed Persons

Self-employed persons will receive a one-off subsidy of $8,000.

3. Number of Subsidized Employees

The number of employees eligible for subsidy is determined either:

using the number of employees the employer received subsidy under the 2020 ESS; or
the actual number of employees hired during the fourth quarter of 2021.

Employers electing the latter calculation method will experience a longer processing time for the application.

Employers are generally entitled to subsidy up to a maximum of 1000 employees, unless they fall within the "Restricted List", in which case, they will only receive subsidy up to a maximum of 100 employees.

Employers falling within the "Restricted List" are those considered as being less affected by the fifth wave of COVID-19 pandemic, which include supermarkets and convenience stores, pharmacies and medicine companies, business-to-consumer e-commerce platforms (including retail product, food and beverage takeaway, vehicle booking), property management, cleaning and security services companies, insurance, banking, securities, MPF, asset management, custody and trust businesses, local courier and delivery services, public utility companies, theme parks, private hospital, medical group practices and medical laboratories, principal contractors of construction industry, property and real estate development business, real estate agencies, and human resources outsourcing agencies.

The full Restricted List and description of each industry can be accessed here.

4. Subsidy Period

The subsidy will cover the three-month period from May 2022 to July 2022.

5. Employers' Undertakings

Employers are required to use the full amount of wage subsidies received exclusively for the payment of the relevant employee's wages.

During the three-month period from May 2022 to July 2022, employers receiving wage subsidies are required to continue employing at least the same number of employees in respect of whom wage subsidies are received.

The Government will check the records of MPF Schemes or ORSO Schemes to ensure compliance with these obligations.

Employers who fail to comply with these obligations will have to return the subsidy received for each missing employee plus an additional 10% penalty fee.

6. Application Period

The Government will be inviting applications starting 8:00 a.m. this Friday, 29 April 2022 over a two-week period until 11:59 p.m. on Thursday, 12 May 2022.

Applicants will have to submit their applications online and upload all necessary supporting documents (regardless of whether an application for 2020 ESS was made before).

Subsidies will be paid in four tranches:

1st tranche consists of 100% of the subsidies for May 2022;
2nd tranche consists of 100% of the subsidies for June 2022;
3rd tranche consists of 70% of the subsidies for July 2022; and
4th tranche consists of 30% of the subsidies for July 2022 after deducting subsidies to be returned to the Government and penalties (if payable).

The first batch of subsidies is expected to roll out in early May 2022.

The webpage dedicated to the 2022 ESS can be accessed here.

Our team at RPC are widely recognized as leading employment lawyers in Hong Kong. We are of the few specialist employment law practices in Hong Kong and we act for both employers and employees on contentious and non-contentious matters.

Please do not hesitate to contact our Partner and Head of the Employment Practice in Hong Kong, Andrea Randall (andrea.randall@rpclegal.com / +852 2216 7208) for any queries regarding the issues raised in this article or any employment law related queries you may have.

All material contained in this article is provided for general information purposes only and should not be construed as legal, accounting, financial or tax advice, or as opinion to any person or specific case. RPC accepts no responsibility for any loss or damage arising directly or indirectly from action taken, or not taken, which may arise from reliance on information contained in this article. You are urged to seek legal advice concerning your own situation and any specific legal question that you may have.

The obligation to provide tribunal documents to journalists

Wed, 06 Apr 2022 14:54:00 +0100

Open justice principle

The principle of open justice is a long-established concept that has two aims: first, to enable public scrutiny of the way in which courts decide cases; and secondly, to enable the public to understand how the justice system works and why decisions are taken.

As this case highlights, there may be journalistic reasons that are relevant to the tribunal's assessment of whether the open justice principle is engaged – and, crucially, whether the content of tribunal documents should be provided where the press requests them.

Background

Mr Rozanov brought a whistleblowing claim in the employment tribunal. He alleged that his employer, EFG, a private bank, had dismissed him for making protected disclosures about the bank's failure to comply with regulatory requirements.

Over four months after the hearing (and seven weeks after the judgment), a Guardian newspaper journalist applied to the tribunal requesting copies of the pleadings, witness statements, skeleton arguments and documents referred to in the judgment. Initially, the Guardian requested unredacted copies but later requested them in redacted form.

How did the Guardian justify its request?

The Guardian considered that the judgment raised matters of "legitimate public interest", including evidence that the bank had failed to comply with anti-money laundering legislation.

Citing "journalistic reasons" for its request, the Guardian submitted that its request was:

to better understand the matters referred to in the judgment;
to ensure that any reporting of this matter fairly and accurately reflects all the relevant matters in the hearing;
for the journalistic purpose of stimulating informed debate about matters of public interest; and
to obtain further information that may assist in further enquiries.

Tribunal's decision

The Tribunal rejected the Guardian's request, stating that:

the common law principle of open justice was engaged - but only to a very limited extent;
the purpose of the request did not relate to the treatment of Mr Rozanov or to how the tribunal investigated the issue, but to possible breaches by the bank of anti-money laundering regulations;
the Guardian could have attended the hearing and made use of the information revealed as they wished but failed to attend; and
the legal costs required in connection with retrieving, identifying and supplying clean copies of the documents would be disproportionate.

The EAT's view

The EAT disagreed with the tribunal's conclusions, and was, indeed, highly critical of the decision. In this case, the principle of open justice was engaged and the bank was ordered to provide the documents. In particular, the EAT said:

The open justice principle has an additional purpose of bringing to light matters of public interest, as well as those matters relating to doing justice between the parties in the particular case.
When addressing the argument that the Guardian could have attended the hearing, the EAT commented on the impracticality of the press attending every hearing, or every day of a lengthy hearing, given the media's increasingly limited resources.
There is no implicit limitation on allowing inspection of documents during the hearing only, and that applications can be made after the hearing.
The tribunal's conclusion that the open justice principle was not strongly engaged was "fundamentally flawed" because the tribunal failed to consider the Guardian's journalistic reasons for the request, which amounted to matters of legitimate public interest.
Material should be made available so that the judgment can be properly understood. This may lead to the disclosure of material that is of wider general public interest than the matters in issue in the particular hearing.

Observations

This case highlights that the open justice principle can apply where a third-party request relates to wider public interests; it is not necessarily restricted to the issues in the specific case. The indication, from the EAT, is that the threshold for the open justice principle to be engaged is not, necessarily, particularly high.

Respondents, especially those involved in high-profile cases, should:

be alive to the possibility that tribunal documents, including skeleton arguments and witness statements, could be made available for public consumption;
be aware of the limitations of arguing that disclosure requests made after a hearing are impractical or disproportionate (such grounds of resistance may prove difficult, given the increasing digitisation of tribunal documentation brought about by the pandemic); and
tread carefully when citing costs in responses to such applications (the EAT has indicated that the costs of complying with an application of this type should be seen as part of the costs of preparing for the hearing).

Guardian News & Media Ltd v Rozanov and EFG Private Bank Ltd [2022] EAT 12

Proposed amendments the Employment Ordinance announced by the government on Tuesday, 8 February 2022

Thu, 10 Feb 2022 14:27:00 Z

Unvaccinated persons will be banned from entering an additional six types of premises, namely shopping malls, department stores, religious venues, supermarkets, wet markets and hair salons under a "vaccine pass" scheme, which is to be launched later this month on 24 February 2022.From 24 February 2022 onwards, only persons who received at least the first dose will be allowed to enter regulated premises using the LeaveHomeSafe app and presenting their vaccination record.

Proposed Amendments

It was also announced that the Chief Executive will push for the Executive Council to amend the Employment Ordinance (Cap. 57) (EO) to address potential conflicts between employers and employers over anti-epidemic measures.

A proposed amendment is to allow employers to dismiss unvaccinated employees who are unable to go to work due to the vaccine pass scheme and such dismissal would not be considered as an "unreasonable dismissal" under section 32 of the EO.

Another amendment is to prevent employers from dismissing employees affected by mandatory lockdowns of the estates they live in or are placed under compulsory home quarantine. These employees will be eligible for sick leave, and their dismissal will be considered as "unreasonable dismissals" with legal consequences.

Discussion

The proposed amendments may have little impact on employees who are able to work from home remotely with the help of technology. However, employees whose work nature require face-to-face interactions, whose workplace falls within any of the regulated venues, or where working from home is not possible will be adversely affected by the proposed amendments, such as those working in the retail, food and beverage and other services industry.

Furthermore, the proposed amendments do not take into account employees who have a legitimate basis for not being vaccinated, such as having chronic or pre-existing medical conditions which deem them unsuitable to be vaccinated.

Given the draconian nature of the proposed amendments, it is likely that such amendments will be faced with strong opposition. Nonetheless, these are only proposed amendments and a draft bill has yet to be drafted, consulted and properly debated in the Legislative Council. It would be prudent for the government to conduct extensive consultation with interested parties to ensure legitimate exemptions are made available to eligible persons.

Our team at RPC are widely recognized as leading employment lawyers in Hong Kong. We are of the few specialist employment law practices in Hong Kong and we act for both employers and employees on contentious and non-contentious matters.

Increased penalty for employers who employ overstayers

Mon, 29 Nov 2021 10:38:00 Z

The IAO came into effect on 1 August 2021, bringing a myriad of changes to the law relating to immigration and deportation. What it means for employers is that they are now potentially facing heavier penalties for employing illegal workers.

What does this mean for employers?

The IAO has also increased the maximum penalty for employers who employ illegal workers from a maximum fine of HKD350,000 and 3 years of imprisonment to a maximum fine of HKD500,000 and imprisonment for up to 10 year.

In addition, where the employer is a corporate, directors and/or other responsible officers could also be personally held liable if the offence of unlawful employment was committed with their consent or connivance of, or was attributable to any neglect on their part.

The High Court has laid down sentencing guidelines that employers who employ illegal workers should be given an immediate custodial sentence and the employers are expected to take all practicable steps to determine whether a person is lawfully employable prior to employment.

Takeaways for employers

Employers should review their internal policies and procedures to ensure they have evidence that their employees are able to work for them in Hong Kong. Where employees are working pursuant to a work visa, employers should ensure they have a clear record of the visa conditions and track the expiry dates of any visas.

Where extension of work visa is required, employees should ensure the application is made in good time before its expiry.

Hong Kong's Legislative Council to consider Cancellation of MPF Offsetting

Wed, 06 Oct 2021 10:05:00 +0100

This MPF offsetting mechanism has long been controversial and has been exacerbated during the pandemic with a wave of business closures leading to a drain on workers' retirement funds.

After much debate in recent years, the Chief Executive's 2021 Policy Address announced that a draft bill to abolish the MPF offsetting mechanism will be introduced into the Legislative Council in the next legislative session. The bill would seek to amend several pieces of legislation which permit MPF offsetting, including the Employment Ordinance, the Mandatory Provident Fund Schemes Ordinance and the Occupational Retirement Schemes Ordinance.

Considering the complexities of the legislative amendments, the Legislative Council's papers predict that the abolition of MPF offsetting would come into effect in around 2025 at the earliest.

Further details will be revealed in the next legislative year.

What is "mutuality of obligation" and why does it matter in the world of work?

Tue, 22 Jun 2021 15:03:32 +0100

In a free market economy, a business and its work providers are welcome to agree the nature of their relationships but this contractual freedom is balanced against a floor of rights which protect the individual. In the UK, the gateway to those individual workplace rights is framed by establishing a person's particular engagement status – whether as worker or employee. And this is why the cases that come before courts and tribunals are brought by unhappy individual work providers who claim they are entitled to more than their businesses have agreed – or indeed intended - to give them. They want holiday or sick pay, increased wages or employment rights. To do this, they seek to establish themselves as a worker or an employee in opposition to the expressed understanding of the business.

Context

Few will have failed to notice the Supreme Court judgment in February this year, when a group of Uber drivers successfully established their legal status as "workers", despite apparent agreement to the contrary. In so doing, they gained access to rights and payments which Uber believed were unavailable to them.

In the case of Nursing and Midwifery Council v Somerville last month, the Employment Appeal Tribunal looked at this issue again, upholding an earlier decision in which a casual, fee-paying arrangement was held to amount to "worker" status.

Facts

S was a fee-paid panel member on the NMC’s Fitness to Practice Committee. The NMC was not obliged to offer S work and he was free to withdraw from work that he had accepted.

An earlier employment tribunal held that S was not an "employee" (and thus unable to benefit from a right not to be unfairly dismissed or to statutory sick pay amongst other employment rights). This was because of the lack of any "mutuality of obligation" between the NMC and S i.e. an obligation on it to provide work and on him to accept it. However, S succeeded in his claim of "worker" status instead, giving him the right to paid holidays.

The NMC appealed.

Key Issues

The EAT considered the well-established legal framework for worker status:

That there must be a contract between business and work provider;
This contract must be for 'personal work or service';
And the Business should not be a client or customer.

Outcome

The NMC argued that the lack of mutual obligation between it and S meant that he was not a worker. It referred to earlier case law in which this had been suggested as a pre-requisite of worker status (moving away from the orthodox position that mutuality of obligation is a cornerstone of employment but not a pre-requisite of worker status). The EAT rejected this argument. Although it agreed that there is some degree of mutual obligation between the parties to any contract, it was not necessary in this case, and for any case involving workers, for there to be any obligation to offer or accept work.

Here, there was clearly a contract between S and the NMC and it provided for his personal service. Further, the NMC was neither a client nor customer of S. As such, there was nothing wrong with the original tribunal decision that S was a worker and the NMC's appeal failed.

Takeaway Points

The legal boundaries between self-employment, casual workers and employees are sometimes difficult to define, navigate and negotiate. With the growth of the gig economy and alternative work models and the post-COVID and unstable economic climate, they have never been more relevant. In the NMC case, there was a written contract between the parties but with many other work relationships, there will be nothing in writing at all, or what is written will be inadequate, incomplete or inaccurate. The risk of deemed worker status will arise whenever one party provides work or personal service to another. If worker status is not an outcome which is desired or intended, expert legal advice will be needed to find the right solution for your business environment and to provide clarity and control for both parties.

Written by Victoria Othen, Consultant Solicitor.

The future world of work – a recipe for success

Wed, 21 Apr 2021 14:58:44 +0100

Homeworkers work a higher number of hours than those who never work from home

Those who do any work from home have a lower sickness absence rate than office-based workers

The data backs up the anecdotal experience of many organisations and individuals - the potential productivity gains and financial advantages for businesses that embrace remote working are clear and well documented. According to research by Flex Appeal, the vast majority of UK businesses intend to capitalise on these benefits. This is supported by the CIPD findings that 63% of employers plan to introduce or expand the use of hybrid working and 45% plan to introduce or expand the use of total, five-days a week, homeworking.

Although much recent commentary centres on the “home vs. office” debate, when designing the new working world, forward-thinking leaders are looking more broadly than just the logistics to a more fundamental question. Their focus is on how to secure a model that gets the most out of the most people. For these leaders, and their businesses, the goal is to create a work environment which supports sustainable productivity, ensures effective collaboration and fosters a culture of innovation for all their people. But to do this, those leaders will also need to tackle an uncomfortable truth about the unintended impacts of remote working. The uncomfortable truth is that there is, right now, a remote working penalty. Indeed, the ONS found that:

“Workers who consistently worked mainly at home were less than half as likely to have received a promotion compared with workers who consistently worked mainly away from home… even after controlling for a range of other factors, such as age, industry and occupation.”

and

“… the rewards for homeworking were typically less for those who exclusively worked from home - being on average paid less, less likely to get a bonus, less likely to get promoted, and less likely to receive training, even after controlling for a range of other factors."

This doesn’t only face new joiners to an organisation because:

“… if a worker changed to mainly working from home, where previously they were mainly based away from home, they saw their chance of being promoted fall by nearly half.”

And accompanying the financial impacts and career risks there is, despite the wellbeing boosts of remote working, also a very real risk to individuals’ mental health. In fact, concerns about the health impacts of the blurring between work and home have led for recent calls for a legal “right to disconnect” to be introduced for remote workers in the UK.

So, the recipe for success in the new working world is most definitely not a simple one. There are many ingredients, each of which needs to be carefully balanced with the others. The impact of each new ingredient must to be tested alongside all the others to establish, understand and correct any unintended consequences. It is a delicate mix and, when the baking process begins, the outcome is uncertain.

And therein lies the rub. Businesses are collections of humans and humans do not like uncertainty or change. As this article points out, it is in our nature to feel that change isn’t simply about embracing something unknown - it’s about giving up something old (and therefore “good”) for something new (and therefore “not good”).

So, to navigate a sustainable route through these complexities, leaders need to:

Start from the position that change is inevitable. Debating the merits of the before times quickly becomes a distraction which shifts focus from the future and risks losing the edge to your competitors. Your precious time and effort is better spent on embracing the opportunities currently presented and securing those in the most effective and appropriate way for your organisation and its people. It is important to recognise there is a cognitive barrier to change within each of us and across our businesses. Don’t deny that blocker – or look to rationalise it away - instead, talk about it and unpack the real-life, real-world concerns which underpin this resistance.
Work through these real-life and real-world concerns to find the right solution for your organisation. The final dish will necessarily vary from one business to another. But the key for all leaders is to approach the discussion with an open mind. Challenge the status quo and the idea that the way we always did it is necessarily the best. If this last year has shown us anything it is that nothing is certain, and flexibility is key.
Beware disproportionately focussing on one driver or concern in isolation from the fuller picture. Yes, it is crucial that your working model supports the mental health and wellbeing of your remote workers but that does not necessarily mean that the answer is to race everyone back to the office for all of their working time (not least given the wellbeing benefits of remote and hybrid working). Seek input from a diverse range of people and test all assumptions before baking them in as "facts".
Establish what "good" and ""excellent" look like for your business and design your reward structure and working model to encourage, facilitate and recognise those contributions. Remove aspects which drive the wrong behaviours or approach. And, crucially, view and review your decisions through an equality and equity lens – look for the unintended impacts on individuals and groups and address these in the design and the implementation. Recognise that a policy is not enough if your employees’ lived experiences differ entirely.
Establish and tackle the uncomfortable truths head on. Whether your model is remote, hybrid or other, remove any invisible penalties which are not justified. Where you identify a challenge, don’t be quick to change course before looking for solutions. If you are concerned that collaboration is challenging in a hybrid world, recognise and voice that concern, establish the specific, tangible day to day blockers, dig into the detail and look for solutions.

And, above all, tackle this crossroads like any other core business challenge and opportunity. Because, after all, that is precisely what it is.

Reimbursement of Maternity Leave Pay Scheme in Hong Kong

Mon, 12 Apr 2021 08:40:00 +0100

From 11 December 2020, Hong Kong's statutory maternity leave entitlement increased from 10 weeks to 14 weeks. For details of the enhanced maternity leave entitlement (and other recent employment law changes in Hong Kong), please see our earlier post here.

Starting from 1 April 2021, employers can apply to the Reimbursement of Maternity Leave Pay Scheme (the RMLP Scheme) to seek reimbursement for the additional 4 weeks (i.e. the 11th to 14th weeks) of maternity leave pay. Employers are reminded that the additional 4 weeks' pay is subject to a cap of HK$80,000 per employee.

To be eligible for the RMLP Scheme:-

before the application is made, the employee must have taken her maternity leave and the employer must have paid 14 weeks of statutory maternity leave pay to the employee;
the employee must be entitled to maternity leave and maternity leave pay under the Employment Ordinance;
the employee's confinement must have occurred on or after 11 December 2020;
the statutory maternity leave pay in respect of the extended period must not be covered by other government funding; and
applications must be submitted either within three months of the start of the RMLP Scheme on 1 April 2021 or within three months of the last day of the employee's 14 weeks of statutory maternity leave (whichever is later).

Applications can be submitted online at www.rmlps.gov.hk. The RLMP Scheme website also contains useful information and FAQs on the Scheme itself and how to apply.

Please do not hesitate to contact Andrea Randall, a Partner and Head of the Employment Practice in Hong Kong for any employment law related queries you may have.

All material contained in this article are provided for general information purposes only and should not be construed as legal, accounting, financial or tax advice or opinion on any specific facts or circumstances and should not be relied upon in that regard. RPC accepts no responsibility for any loss or damage arising directly or indirectly from action taken, or not taken, which may arise from reliance on information contained in this article. You are urged to seek legal advice concerning your own situation and any specific legal question that you may have.

Is the promise of a severance payment a reasonable adjustment?

Fri, 07 Aug 2020 14:04:27 +0100

Is the promise of a severance payment a reasonable adjustment?

In the recent case of Hill v Lloyds Bank plc, the EAT confirmed that it could be, and in the circumstances of that case, that it was.

Background to the case

Mrs Hill had worked for Lloyds Bank for over 30 years. Between July 2016 and October 2017, she was signed off work with stress, which she attributed to bullying and harassment by two colleagues causing her to suffer from reactive depression.

She raised a grievance and then an appeal against one of these colleagues and neither were upheld. However, it was agreed by all parties upon her return to work that they did not want to work together, and Lloyds confirmed that they would not be required to do so. Despite this, Mrs Hill remained very anxious that in the future she may be required to work with these individuals again. As such, she sought an undertaking from Lloyds that, should there be a situation where there was no practical alternative to her having to work with these individuals, she would be offered a severance payment equivalent to a redundancy payment as an alternative. Lloyds refused to give this and would only provide "words of comfort" that she would not have to work with them.

Mrs Hill brought proceedings in an Employment Tribunal (ET) arguing that Lloyds' failure to provide the undertaking sought placed her at a substantial disadvantage in comparison to someone who was not disabled. This was because of the level of stress and worry that the thought of working with these colleagues caused Mrs Hill, manifesting itself in her physically feeling sick. The fact that Mrs Hill was disabled, and Lloyds had knowledge of this, were not points in dispute by the time of the ET final hearing. Mrs Hill was successful in her claim and awarded £7,500 in injury to feelings and the ET also made a recommendation that Lloyds give an undertaken along the lines of that requested (although this recommendation was subsequently withdrawn).

The judgement was appealed by both parties as Mrs Hill was unhappy with the ET's decision to withdraw the recommendation of the undertaking; and Lloyds were unhappy with the decision that it had a "practice" of not offering undertakings as well as the ET's decision that it was a reasonable adjustment to commit to potentially paying a substantial severance payment to Mrs Hill at some time in the future. Lloyds' main arguments were that the decision not to offer an undertaking was a one-off decision and that the purpose of a reasonable adjustment was to keep an employee in work, whereas a commitment to a severance payment related to making a provision for Mrs Hill to leave.

The EAT findings

The EAT found that the ET was entitled to find for Mrs Hill in respect of her claim for disability discrimination based on a failure to make reasonable adjustments. Taken from the summary of the judgement, the EAT found that:

(a) on the facts, Lloyds did have a “practice” of not giving firm undertakings in circumstances like these (and, as it was a finding of fact, it was not capable of being appealed or, therefore, overturned by the EAT).

(b) the "practice" identified in point (a) had put Mrs Hill at a substantial disadvantage in comparison with others not suffering a disability (as she suffered a level of anxiety and fear about the possibility that she would be required to work with these individuals, in the absence of an undertaking to the contrary, that a non-disabled person who had been bullied and harassed would not have);

(d) it would have been reasonable for Lloyds to give a firm undertaking in the form requested.

Whilst there were issues in respect of the details of the undertaking that the ET had originally ordered, it was accepted by the EAT that a requirement to give an undertaking was a perfectly reasonable recommendation and, indeed, given that Mrs Hill's claim of failure to make a reasonable adjustment succeeded because this undertaking had not been given, it should be given in this case. The case was therefore referred back to the original ET in order for it to give further consideration to the terms of the undertaking. In respect of Lloyds' argument that the undertaking related to Mrs Hill leaving work as opposed to staying in work, the EAT considered that the purpose of the undertaking was to alleviate Mrs Hill anxiety so that she could remain in work, the provision of a severance was just a "back-stop" if there were to come a time when Lloyds were no longer able to continue to keep Mrs Hill and these colleagues from working together.

Observations

It is interesting to note that the ET and EAT found that giving an undertaking, as opposed to mere "words of comfort", was a reasonable adjustment notwithstanding the fact that the Claimant's grievance against her colleague (as she only raised a grievance in respect to one of the individuals) had not been upheld. This highlights the importance of employers needing to fully consider concerns being expressed by disabled employees and consider the impact on them in the present and whether provisions can be made - whether to take effect now or only if specific future events arise - which would alleviate these concerns in the present. Considering these concerns at an early stage in the process and fully engaging with employees regarding what can be done is always to be advised and might well prevent matters escalating further.

In respect of this specific case, Lloyds is obviously a large organisation and it clearly had no trouble in accommodating the request that these staff did not have to work together going forward. All three individuals worked in different offices (Mrs Hill was in Bristol, one colleague was based in Glasgow and the other in London), they were in different business units and they had not been required to work together since her return from being signed off sick. The fact that it was found that not providing the undertaking requested was a failure to make a reasonable adjustment, was likely related to the size and set up of the organisation. This case does not therefore mean that an undertaking would necessarily be a reasonable adjustment in other circumstances, and indeed it is likely to be a rare case where such an undertaking as this would be required as it is so fact specific. Nevertheless, it is a reminder to employers to turn their minds to considering concerns in the round, including whether an undertaking could be appropriate, and to keep in mind the breadth of the reasonable adjustment obligation, once engaged.

The summer of discontent?

Fri, 31 Jul 2020 15:33:32 +0100

But this is summer 2020. And, as we all know, there really is nothing usual about 2020.

This summer, employers are dealing with a holiday season like no other. Leadership teams are grappling with all manner of novel complexities alongside business as usual (whatever that means right now). By way of our contribution to your holiday reading (you're welcome), here are some of the key issues we are currently helping employers to work through.

Employees who do not want to take any holiday

One side effect of the lockdown and other public health restrictions has been a reduction in annual leave being taken. Furloughed employees may not have booked their usual level of holiday days. Even employees who have continued to work may be reluctant to use precious annual leave entitlement when their travel options are so severely curtailed. This has created a number of challenges.

By carrying a disproportionate level of accrued, untaken holiday a business is often storing up a resourcing challenge for later months of the holiday year. There is, also, a direct financial cost where an employee leaves the organisation (particularly relevant given the anticipated increase in redundancies) with a bundle of untaken holiday that triggers a right to payment in lieu. And, of course, the broader concern of how to effectively support the health and wellbeing of a workforce in circumstances where holidays are not serving their usual function, including by not being taken. After all, holiday entitlement is, first and foremost, a health and safety measure. Not to mention, learning lessons from the last recession, the governance imperative of holiday as a risk management control, giving others the opportunity to review the work of individuals and teams that are away. With these interests in mind, some employers are looking at requiring employees to take holiday, even if that is by compulsory holiday notice.

When a two-week holiday becomes a month away from work

What of employees who do take holiday, only to find themselves quarantined for a further 14 days on return from their destination? Last week's removal of Spain from the exemption list caused ripples of chaos across the HR landscape. Exam questions a plenty arise here like:

Is statutory sick pay payable to an employee quarantining who can't work from home? Our (slightly contrary) view is that the SSP legislation (as drafted) arguably does cover this situation but, the government has categorically said it will not pay SSP and so we anticipate any loophole will (at some point) be closed.
Regardless of SSP, is full salary in fact payable? The answer is: perhaps. It depends on many factors including the terms of the contract, when the holiday was booked, the employer's policy and what was communicated to the workforce. There is no one size fits all answer here.
Can an employer stop an employee from foreign holidays where quarantine may result? Despite ministerial placations, and with the same caveat that this is very much situation specific, the fact remains that there will be occasions where employers can lawfully deduct pay and take disciplinary action in these situations.

When is working whilst on holiday, or working from 'home' outside the UK, risky for the business?

Whether it's due to taking an extended holiday abroad (planned or otherwise) or simply retiring to a holiday or family home outside of the UK to work remotely during lockdown, potential tax issues should not be overlooked.

Assuming that the time spent working outside of the UK does not change the employee's tax residence status (a topic all of its own) then income tax and national insurance contributions should continue to be deducted by the UK employer. The employer should also continue to account for employer national insurance whilst the employee is working outside of the UK.

Longer periods spent working outside of the UK could result in risks that:

the UK employer is treated as having a "permanent establishment" in the country in which the employee is working. This would typically be of greatest concern if the relevant employee is habitually exercising an authority to conclude contracts in their employer's name, whilst physically present in the other country. Some tax authorities (such as HMRC) have issued guidance on the risks of Covid-19 related travel arrangements giving rise to permanent establishment issues; and/or
the employee has tax and social security obligations in the local country in which they are working. Relevant double tax treaties, if in place between the UK and the particular country, may assist here to ensure that no such local income tax arises (or, at least, that credit can be given for such tax so that the income is not subject to double taxation). As a result of the UK's extensive network of tax treaties, short stays in many jurisdictions should not give rise to any local employment income tax charge. The position for social security contributions is slightly different. Provided certain conditions are met (and certificates obtained) employees carrying out duties in the EEA and Switzerland should not trigger local country social security charges, at least until the Brexit transition period expires at the end of this year. The position outside of the EEA and Switzerland will depend upon the terms of any social security agreement between the UK and the relevant jurisdiction.

In any of these cases it really is important to consider the local tax and social security rules in the relevant country in which the employee is (temporarily) working, and also whether an applicable double tax treaty assists.

Finally, the physical location from which directors take strategic decisions can affect the tax residence of an employer company. In this regard, companies should be extra vigilant this summer as to where directors meet, or dial-in, to take part in board meetings.

Preparing for redundancies

It is an inescapable reality that workforce stability is always a casualty of any financial crisis. In the UK we are already seeing mass redundancy programmes implemented by a number of businesses ravaged by the impact of coronavirus. As the support provided by the furlough scheme tapers off and, at the end of October, comes to a close, we will inevitably see more job losses.

For some businesses, the financial cost of redundancies will be more than they had anticipated. From 31 July, new legislation is in force which changes the calculation of a week's pay for employees who have been furloughed. This is important for working out various payments including statutory notice and statutory redundancy pay.

Many companies will become better versed in the strict legal requirements which are triggered where collective redundancies are proposed. These requirements dictate the timetable for any programme of this kind and require timely and careful planning. This summer does not provide a break for the many organisations which will very shortly, if not already, need to begin those information and consultation processes. An important word of warning: don't forget the additional obligation to inform the Secretary of State of these proposals via form HR1. This obligation, if breached, can result in criminal liability, also attaching to individual directors.

Getting the house in order

Is it just us or does everyone else make sure their house is clean and tidy before going on holiday? Maybe it's the domestic equivalent of wearing clean pants in case you get run over but here it's the horror of a burglar breaking in and recoiling at the dusty bookshelves.

For organisations which have made use of the Coronavirus Job Retention (furlough) Scheme, this summer is a critical opportunity to tidy and organise the furlough cupboards.

On each of 1 August, 1 September and 1 October, changes will come into effect which increase the amount of financial contribution employers must make to the wages of their furloughed employees. In turn, the amount of government funding will taper off in corresponding proportions.

Finally, new legislation is now in force which provides employers with a short window in which to check their processes and self-report any errors they identify were made in their furlough claims. The window is only open for 90 days from 22 July. It presents an important risk management opportunity. Because if HMRC do come knocking, no business wants to have to open their doors to reveal a messy house and a pile of post-holiday washing. And bear in mind that if HMRC does not visit this year, they may do in a few years' time. For this reason, furlough records must be preserved.

It's summer; but not as we know it.

COVID-19 legal update – Your workforce: Could workers who can work from home (and their employers) break the law by returning to the workplace too soon?

Wed, 20 May 2020 12:23:58 +0100

Most employers will be well versed in their obligations to ensure a safe working environment. This is important to comply with health and safety obligations and, also, employment law. Specific guidance has been issued by the Government to support businesses in making their workplaces COVID-19 secure.

But, even if the workplace is as safe as possible, could employees (and their employers) still be risking breaking the law by returning to work?

Currently, under the law (the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (the "Regulations")), no one is allowed to leave their house without a reasonable excuse. A reasonable excuse includes the need to "work" but specifically "where it is not reasonably possible for that person to work…from the place where they are living". The Regulations also require certain businesses to remain closed during the current emergency period. Anyone who contravenes the above restrictions commits a criminal offence. They could be given a direction, issued with a fixed penalty (of up to a maximum of £3,200) or charged.

In addition, if an offence under the Regulations committed by a body corporate is proved to have been committed with the consent or connivance of any officer or to be attributable to any neglect on the part of such an officer, the officer (as well as the body corporate) is guilty of the offence and liable to be prosecuted and punished accordingly. Here, an “officer” means "a director, manager, secretary or other similar officer of the body corporate".

The above clearly has direct implications for everyone who works, but what about employers? Even employers who are permitted to open could be committing an offence if their employees or workers physically attend work when it is reasonably possible for them to work from home if they gave the instruction to the relevant individual(s), in which case they would be aiding or abetting the offence. Ultimately, this means that, as the law stands today:

Employers should carefully consider whether it is possible for each individual in their organisation to work from home;
This may not be a binary question. Any particular employee may be perfectly able to do their job at home on some days but, on other occasions, this may be impossible. This could be due to the nature of particular tasks or aspects of their home environment;
Whenever an individual can work from home they should be instructed to stay at home (to avoid committing an offence);
Where it is reasonably possible for an individual to work from home, they should not be instructed to attend their place of work (even if that place of work is permitted to be open under the Regulations). Currently, any such instruction by an employer would be unlawful; and
Even where a business is permitted to open and its employees cannot work from home, that is not the end of the story. The employer must return to its general legal obligations before finalising any plans. And the Government's COVID-19 secure guidance is clear: employers should be considering who is "needed" on-site, for example workers in "critical" roles.

COVID-19 HK: Employment Update

Tue, 14 Apr 2020 03:07:58 +0100

In this update, we will briefly consider some of the options which companies in Hong Kong may have in reducing staff costs.

1. Redundancies

There are no statutory requirements for employers to consult their employees in redundancy situations in Hong Kong. If difficult economic conditions make redundancy inevitable, employers should be mindful when deciding which employees to be made redundant and put in place a fair selection process to avoid any future claim by the employees that their employers have acted in a discriminatory manner. Under the Employment Ordinance of Hong Kong (Cap.57) (EO), it is unlawful to terminate certain employees such as those on paid sick leave or maternity leave.

Employers should also note that in addition to outstanding wages, payment for accrued but untaken annual leave, payment in lieu of notice, and any other contractual entitlements, an employee who has been employed under a continuous contract for not less than 24 months and who has been made redundant will be entitled to statutory severance payment.

2. Encouraging Voluntary Unpaid Leave

Having employees take unpaid leave is a less drastic cost-cutting measure than making employees redundant as redundancies will inevitably damage morale and affect the employer's ability to regain its competitive edge when the economy recovers.

Under the laws of Hong Kong employers cannot compel their employees to take unpaid leave. If employees are forced to take unpaid leave, they may make a claim against the employer for breach of the employment contract and/or constructive dismissal.

Employers can however consult with their employees and encourage them to take voluntary unpaid leave to alleviate temporarily financial stress placed on the business. Employers should note that during the unpaid leave period, certain statutory rights and obligations will continue, for example, the employer's duty to make payment for statutory holidays to eligible employees.

3. Reduction in Salary

Employers may consider this type of arrangement to avoid compulsory redundancy but clearly this would require the express consent of those employees concerned. Otherwise, this will be a variation of the contractual terms of employment. This type of arrangement is more effective when it is led by management and when management accepts cuts themselves, and/or when the employers make an assurance that when business environment improves the salary will be restored to pre-crisis levels.

4. Reduction in Working Hours and Salary

Employers may consider introducing a reduction in working hours for certain group of employees. Again this would require the express consent of those employees concerned, otherwise, this will be a variation of the contractual terms of employment. Employers and employees should make sure they understand clearly the implications of such an arrangement and whether such an arrangement may break the continuity of employment which would affect the rights, obligations and entitlements of both parties under the EO.

5. Utilising Paid Annual Leave

Under the EO, an employer is allowed to designate the dates on which employees take statutory annual leave, subject to consultation with the employees and confirmation of the arrangement by written notice of at least 14 days (or any agreed shorter period).

With respect to the right of employers unilaterally to designate the dates on which employees take contractual annual leave (i.e. annual leave granted in addition to statutory annual leave), this will depend on the terms of the employment and the employer's policies.

6. Removing discretionary benefits

Employers can consider removing discretionary benefits. However, employers will need to make sure the discretionary benefits being removed have not become contractual obligations.

7. Important note to employers

The COVID-19 pandemic has brought many challenges to employers and we note the Financial Secretary of Hong Kong's comments on 29 March 2020 that: "The Government has pledged that continual support will be provided to industries hard hit by the epidemic or affected by anti-epidemic measures, with particular support to employees. The Government encourages employers to ride out the difficult times with employees together."

Under the present circumstances, when employers introduce any cost-cutting measures, it is important for them to communicate clearly to their employees the financial problems that the business is facing and the reasons for adopting such measures. Employers should offer the employees a range of options and be prepared to consult with the employees and reach mutually agreeable arrangements to maintain employer/employment relations.

COVID-19: Your workforce – furloughing - act to mitigate the risk of exposure to tax evasion offences as scheme could be open to abuse

Thu, 09 Apr 2020 16:39:56 +0100

The essence of the furlough scheme allows businesses to apply for a grant of up to the lower of 80% of the employee's usual wages, or £2,500 per calendar month, for an initial three month period, beginning on 1 March 2020, where there is no work for the employee to undertake due to the closures required by social distancing measures. For further information on the operation and conditions of the furlough scheme, please see our previous blog post here.

An essential condition of the furlough scheme is that employees do not undertake any work "providing services or generating revenue" for or on behalf of the organisation. Training and volunteering are permitted, although where the line between volunteering and providing services is drawn, remains to be seen.

Mr Harra reassured the Committee that there are four protections in the design of the furlough scheme to assist with managing the risk of abuse:

the furlough scheme only relates to employees who were on the payroll at 28 February 2020;
the employer, to use the online service through which applications are made, has to use authentication credentials;
a whistleblowing hotline has been established where abuse of the furlough scheme can be reported; and
HMRC have the ability to retrospectively audit the claims made, described as 'downstream checking'.

Mr Harra stated "We are aware that some employees have already been reporting that some employers have asked them to work during the furlough period" and noted that HMRC are already conducting operations "looking for evidence of someone working during a period when they shouldn't be".

Mr Harra comments that where abuse of the furlough scheme is detected, payments will be disallowed, recovery of any over payment sought and, depending on the nature of the behaviour, criminal action may be taken against employers, indicate that HMRC are likely to take a zero-tolerance approach to any attempts to abuse the furlough scheme.

In addition to the risk of deliberate actions undertaken by businesses such as a sudden swelling of the number of persons recorded as 'employed' and inflated wages, the risk of an unjustified 'whistle-blower' complaint from disgruntled now-redundant employees, and the risk of credential theft from unscrupulous third parties via phishing or data theft, there is a real risk that HMRC will seek to bring prosecutions for the offence of failing to prevent tax evasion, under the Criminal Finances Act 2017. Although on the statute books since 2017, HMRC are yet to initiate a prosecution for the corporate criminal offence of failing to prevent tax evasion under the Criminal Finances Act 2017.

Regular readers will recall that this is a strict liability offence, meaning that if criminal tax evasion (whether or not there is a successful prosecution) and facilitation by a person or entity associated (i.e performing services for or on behalf of) the business are proven, the defendant business' guilt for failing to prevent will follow. For further information see our note here.

Businesses should also take this opportunity to review carefully their policies, procedures and controls around employee wages to ensure that they have 'reasonable preventative procedures' in place to address risk of tax evasion.

Given HMRC's public statement about the risk of abuse to the furlough system, it is likely that businesses will now be expected to act to mitigate the risk of tax evasion. A good starting point would be a clear 'tone from the top' message adopting a zero-tolerance approach to any attempts to manipulate the furlough system by anyone connected with the business. This should be followed by a clear consideration of this risk in accordance with the six guiding principles of risk management:

Risk assessment - The nature and extent of the exposure to risk of criminal tax evasion of those who act in the capacity of person performing services for or on behalf of the company, particularly with remote working potentially decreasing ongoing oversight.
Proportionality of risk-based prevention procedures - Given the nature, scale and complexity of activities and the level of identified risk, what is appropriate given the level of control and supervision that can be exercised over associated persons in these unprecedented times?
Top level commitment - The 'tone from the top' and fostering of a culture of intolerance of tax evasion.
Due diligence - Taking an appropriate and risk-based approach to what is possible within the confines of social distancing and how the obvious additional risks can be addressed.
Communication (including training) - Communication, embedding and understanding of the policies and procedures proportionate to the identified risk.
Monitoring and review - Documented monitoring and review, including modifications necessary to address the specific concerns of remote working, and improvements where necessary.

HMRC and the Courts may look to make an example of anyone found to have abused the furlough scheme and deprive the public purse at a time of national emergency. In the present climate, the reputational risk to businesses from any such prosecution is likely to be significant, not to mention the potential for an unlimited fine should the business be convicted.

Hot off the Press: COVID-19 - Your workforce: a Q&A on claiming for wage costs through the Job Retention Scheme

Fri, 27 Mar 2020 14:54:44 Z

Which employers are covered?

All UK employers who

created and started a PAYE payroll scheme on or before 28 February 2020 and
have a UK bank account.

RPC says: HMRC say this "is designed to support employers whose operations have been severely affected by coronavirus (COVID-19)." Is this merely a statement of overarching intent or will the scheme, once designed, include some sort of means testing?

Will it apply to companies in administration?

Yes. The administrator will be able to access the scheme.

When can employers access the scheme?

It is expected to be up and running from the end April.

What period will the scheme cover?

The 3 months from 1 March 2020 and it may be extended. Employers can access the scheme at any time during the period.

What payments will be covered?

80% of furloughed employees’ usual monthly wage costs, up to £2,500 a month, plus the associated Employer National Insurance contributions and minimum automatic enrolment employer pension contributions on that wage.

Bonuses and commission are excluded. Be mindful that other benefits will remain payable, under usual contractual principles, unless you have agreed otherwise.

RPC says: How will you deal with any bonuses and commission? Fund them or seek to agree a variation to any applicable scheme/s?

And remember, tax and NI remain payable on all payments made in the usual way.

How is "usual monthly wage" calculated?

For full time and part time employees, use their actual salary (excluding bonus and commission) before tax as at 28 February.

For employees with variable pay, it depends when they joined:

If the employee has been employed (or engaged by an employment business) for a full twelve months prior to the claim, you can claim for the higher of either:

the same month’s earning from the previous year; or
average monthly earnings from the 2019-20 tax year

For more recent joiners, you can claim for an average of their monthly earnings since they started work
For those who only started in February 2020, use a pro-rata for their earnings so far to claim.

Once you’ve worked out how much of an employee’s salary you can claim for, you must then work out the amount of Employer National Insurance Contributions and minimum automatic enrolment employer pension contributions you are entitled to claim. Guidance on this to follow from HMRC.

Which staff are covered?

They must have been on your payroll on 28 February 2020

Those made redundant after 28 February if rehired are covered

Covers any type of employment contract including zero hours and agency contracts (where not working).

RPC says: Your most recent joiners will not be covered.

The guidance refers only to employees. This is not defined but, presumably, it is intended to cover "employees" in the tax status sense (so that any casual workers who are not employees for tax – rather than employment status? - purposes will not be covered)? Clarity is needed but it may be that all those on payroll, for whom Employer's National Insurance is paid, would be covered.

Can a furloughed employee do some work for us while furloughed?

No. The scheme will only cover employees who are doing no work for or on behalf of the organisation. This expressly includes "providing services or generating revenue" for the organisation.

RPC says: The guidance does not say expressly whether employers can rotate employees off and onto furlough. However, our read is that this is likely to be permitted, provided each furlough period is a minimum of three weeks. HMRC's confirmation of the position would be welcomed.

Can employees work for another organisation (subject to usual rules of fidelity etc) and remain furloughed? Perhaps so. The guidance says that each job is treated separately, that an employee could be furloughed from each job and that the cap applies separately to each employer. It is not clear if this would allow working for group companies, under a separate /dual employment contract. It might.

Can a furloughed employee volunteer?

Yes. Volunteer work or training is allowed, as long as this does not provide services to or generate revenue for the organisation. Also, if you require furloughed employees to complete, eg online training, you must pay them "at least the NLW/NMW for the time spent training".

RPC asks: How will you calculate "time spent training"? Are apprentices "providing services to or generating revenue" and therefore not permitted to train on the job while furloughed?

How does an employer designate employees as furloughed?

This remains subject to usual employment laws, including discrimination legislation (particularly in terms of selection for furlough) and contract principles. The HMRC guidance reflects that agreement should be sought to change the contract. A written record of furlough notices should be retained.

What about employees on other types of statutory leave?

Employees on unpaid leave can't be furloughed unless they were placed on unpaid leave after 28 February
Employees who are self-isolating or on sick leave should receive statutory sick pay (and any company sick pay due). They can be furloughed afterwards
Employees who are socially shielding (ie vulnerable groups) can be furloughed
Maternity, paternity, adoption and shared parental leave: the usual principles apply in relation to statutory payments due. Any contractual enhancements to these payments can be recovered as a wage cost (subject to the cap) if the employee is furloughed.

RPC asks: Holiday will continue to accrue during furlough. But can employees be allowed/required to take holiday whilst furloughed? This is not dealt with in the guidance.

What do I have to pay to furloughed employees?

As a minimum, the lower of 80% of their regular wage or £2,500 a month.

Top ups beyond this will not be recoverable under the scheme.

RPC says: If you reduce any wage below 80% does this mean that person's wage becomes ineligible for the furlough scheme? It depends on what "regular wage" means here. Given the approach to calculation looks, for those whose pay doesn't vary, at their wage on 28 February it seems that any employees whose pay was reduced after 28 February may be ineligible for the scheme.

Be a little wary of the language "top up". It suggests that this is an optional payment. But there are of course potential contractual issues if such a reduction is imposed. We recommend taking advice on individual circumstances before implementing furlough.

How will payment be administered?

HMRC will pay a grant to employers via a BACS payment. It will issue guidance on how to calculate claims for NI and minimum automatic enrolment employer pension contributions.

RPC says: The word "grant", rather than "loan" (as had been previously mentioned by some), will be welcome clarification for business.

Is there a minimum period of furlough?

Yes, 3 weeks.

RPC says: Note, you can only submit one claim every 3 weeks.

What information will be needed to claim?

ePAYE reference number
number of employees being furloughed
claim period (start and end date)
amount claimed (per the minimum length of furloughing of 3 weeks)
bank account number and sort code
contact name
phone number
calculation of the amount you are claiming

RPC says: This information will be submitted to an HMRC portal, details of which are not yet available. HMRC will have a right to retrospectively audit claims.

Can the employer retain or divert any of the grant?

No. It must all be paid to the employee/s. No costs etc can be charged and deducted.

How will these payments be treated for tax purposes?

Payments received under the scheme are made to offset these deductible revenue costs. HMRC say they must therefore be included as income in the business’s calculation of its taxable profits for Income Tax and Corporation Tax purposes, in accordance with normal principles. Businesses can deduct employment costs as normal when calculating taxable profits for Income Tax and Corporation Tax purposes.

Do contact us if you need further clarification.

COVID-19 Your workforce: a caution against putting equality on the backburner

Fri, 27 Mar 2020 10:11:20 Z

Those tentacles are as long as they are numerous; their reach is far and their impact wide-ranging. We know, from the work we are doing day in day (and evening!) out with our clients that businesses are working round the clock to adapt to the changing world. For some that's about flexing to meet unprecedented product and service demands. For others that's being agile in the face of forced temporary shutdown. Many are grappling with transitioning to an entirely home working model for perhaps the first time. There is no doubt that, for all businesses, there is painstaking work to be done and difficult decisions to be made. At times, this work will be (or at least it will feel) all-consuming for many of us.

It is against this background that, on 24th March, the Government announced that it will not be taking action against any employer who fails to publish their annual gender pay gap report this year. In a joint statement, Minister for Women & Equalities, Liz Truss, and EHRC Chair, David Isaac, said: “We recognise that employers across the country are facing unprecedented uncertainty and pressure at this time. Because of this we feel it is only right to suspend enforcement of gender pay gap reporting this year.”

It is superficially tempting to regard this as an entirely sensible measure. After all, as we said, business is already overloaded dealing with all things Covid-19 related. Employers need this breathing space to concentrate on bigger business priorities, don't they?

But let's pause and reflect on that for a moment.

First, and this is a point of detail but an important one. The deadline for gender pay gap reporting is 30 March for public sector employers and 4 April for private sector employers. The suspension announcement, therefore, came only (respectively) 4 and 9 business days before the deadline. Realistically then, how much pressure has this released for business? Don't forget that only those with 250 or more employees would be obligated to report anyway. And remember that many of those have, already, reported. A great many of those who are yet to report will have their data ready (or very nearly ready) to go anyway. So, for many businesses, all this announcement does is permit them to take the data they have already collected and analysed and put it away in a drawer, rather than publish it next week.

Bearing in mind that gender pay gap reporting is a tool entirely aimed at improving workplace gender equality, what message does this announcement send? Perhaps, the message is that gender equality is not business critical but is, simply, a "nice to have"? Is the message that, if we're honest, we do think that government and business should support gender parity but only when the rest of the house is in order and there is time to spare for such extra-curricular issues? Whatever the intended message, the announcement on this law sits in stark contrast with the Government's position on filing of company accounts: "If, immediately before the filing deadline, it becomes apparent that accounts will not be filed on time due to your company being affected by Coronavirus (COVID-19), you may make an application to extend the period allowed for filing…If you do not apply for an extension and your accounts have been filed late, an automatic penalty will be imposed. The registrar has very limited discretion not to collect a penalty."

Caution: this may well be a difficult road to reverse back from once travelled. Warnings are already being raised about the likely disproportionate economic impact of this crisis on women. This is due to a combination of factors, including sector and role distribution and the demographical reality of caring responsibilities. Existing gender gaps will be exacerbated, including by the choices families are forced to make. Shouldn't these impacts be factored into the policy making process; not left for another day when there is more time but, by when, the damage may already be done? As this article in The Atlantic suggests, we should try to learn the lessons from previous public health crises, quoting Julia Smith, a health-policy researcher at Simon Fraser University, who told The New York Times: “Everybody’s income was affected by the Ebola outbreak in West Africa,” but “men’s income returned to what they had made pre-outbreak faster than women’s income.”

So, before your organisation decides to take advantage of the suspension of mandatory gender pay gap reporting, and to mothball your own reporting this year, do first consider whether this really is the right thing to do for your business and your people. What will you actually gain from not reporting next week? What might you lose?

COVID 19 Your workforce: What on earth is "furlough"?

Tue, 24 Mar 2020 14:50:23 Z

A "furloughed worker" is a worker who is on temporary leave due to special needs of a company or employer. This could be due to economic conditions at the specific employer or in the economy as a whole. These furloughs may be short or long term. In the US, those affected may seek other temporary employment during that time - however, this approach does not sit naturally with our rules on fidelity and loyalty, save to the extent that these express or implied rights are waived, by agreement or under the terms of the contract. Equally, if a worker was permitted to take on alternative paid engagement during any period during which they are furloughed, it is not clear how an employee with a second mitigating income would offset that income from the sums sought to be recovered by the primary employer under the Government's scheme.

So, how will the scheme operate? At present, the published guidance is limited and vague – much of the detail remains to be worked through. The Government hopes to have the scheme up and running by the end of April. But many businesses are having to make decisions imminently. Drawing together the key principles as currently published, albeit those are limited, here is what we know:

To access the scheme, the worker's status must be changed to that of a 'furloughed worker' – being as written above an employee who is temporarily on leave from the business. The right to require an individual to remain away from work, in circumstances where they are ready and able to work, but work is not available to them, will be subject to normal employment principles. The existing terms of employment will be important. For example, whether or not employees are paid only for the work they undertake (say a minimum or zero hours contract) or, alternatively, if they are paid a fixed income, irrespective of the availability or otherwise of work. Advice on individual contractual arrangements should be sought before implementation.
HMRC will reimburse 80% of the worker's "wage costs" – this term is not defined – up to a maximum cap of £2,500 per month. The normal meaning of "wages" flows from national minimum wage legislation and covers salary and certain other remuneration payments. However, and this is important, the opening paragraph of the Government's publication refers to employers having support "to continue paying part of their employees' salary for the employees who would otherwise be laid off". The underlining is ours. The term "salary" has a narrower legal meaning to "wages", where "wages" covers salary and other payments. In other words, the precise scope of the recoverable payments remains to be confirmed.
Please bear in mind that other contractual benefits will be payable to the employee unless the contract provides otherwise or the employee agrees otherwise.
Payments can be backdated to 1 March 2020 though the limitations around who will be eligible will, also, need to be confirmed.

As well as the points of detail mentioned above, the Chancellor's announcement and subsequent brief guidance issued to employers and employees left open a number of broader questions. In particular:

Will HMRC reimburse 80% of:
- normal wage costs/salary or
- what the employer actually pays to the furloughed worker?

The distinction is crucial. If the former, it is open to employers to seek to agree a 20% wage cut with staff and to be able to recover the full payment from HMRC. If the latter, any employer looking to furlough workers will, always, need to be in a position to fund 20% of the wage bill itself. The cash flow difference is critical. Although the official guidance is opaque on this point, we understand from the Financial Times that Treasury officials were "horrified" at the weekend to discover that employers were considering lay-offs over fears of having to fund 20% of all furloughed staff wages. Apparently, the intention is that 80% of normal wages will be reimbursed up to a cap of £2,500.

The announcement does not deal with whether the costs to be underwritten, include tax and deductions relevant to employees – for example employer's NIC's, pension, cost of other benefits. We understand guidance on the employer's NIC's position may be issued this week.
To to be a furloughed employee the person must be on leave, not working. What is the position if an employer wishes to rotate its workforce, some working with others at home on leave, not working and then swapping those teams? Are the employees never furloughed because they will work or are they furloughed for when they're at home?
The guidance does not confirm whether the scheme will be operated as a loan or a pure payment. The supporting announcements, including by Ministers, speak to it being a loan, but that is not clear from the guidance, itself.

COVID-19 Your workforce: pay and costs - practical ideas our clients are exploring

Tue, 24 Mar 2020 11:42:53 Z

Balancing and moderating your fixed wage bill - In order to maintain financial health for the future while dealing with the here and now, various factors come into play: predicted revenue and cash collection; retention of business critical and essential skills and experience, measured (and considered) in the immediate and, as things improve, the longer term.
Paying employees in various circumstances brought about by the Government's guidance on self-isolation and isolation - So for example, what is the right to receive SSP or enhanced contractual sick pay or normal pay in various situations? These questions about pay include the following situations: (i) a person self-isolating in an approved manner consistent with Government guidance; (ii) there is no work available for the worker where she or he is otherwise able to work; (iii) a person is isolating because that person lives with a vulnerable individual within a Government announced high risk group – there are variations to this question where a person is able to work or, alternatively, not able to work; (iv) a person chooses not to attend work – again, there is a variation if that concern flows from clinically recognised stress or anxiety.
Reducing costs – back to the wage bill. Companies are looking at:
- Varying duties, working hours and pay. Some are looking at moving employees to different tasks or roles. Some points to explore:
  - Any express contractual flexibility to change hours, pay and duties;
  - Absent an effective contractual right, how changes can then be made. This in turn feeds into:
    - Communication;
    - Consultation on changes: individual and, if the number of employees impacted is significant, collective redundancy consultation – don't forget a dismissal and re-engagement (or a constructive dismissal) counts for collective redundancy consultation.
    - Ideally, changes will be made by agreement, having illustrated the need for change.
    - These variations are seen as an alternative to redundancy. Employees may be willing to reduce pay to avoid redundancy.
- Temporary layoffs - if employment contracts allow for that; if not, by agreement.
- Unpaid sabbaticals
- Partnering with other organisations whose workforce demands have increased, looking to agree temporary sharing/seconding of relevant resource.
- Redundancy if reductions cannot be achieved through other means. We will be mindful that this brings in individual consultation. And if the numbers exceed the collective redundancy trigger (20 or more employees at risk of redundancy), collective redundancy. Companies will comply with s188 collective consultation with appropriate representatives. HR1s must be filed.

Accrual of holidays during this time? Companies are turning their minds to planning how they might carry over, including extending the time for any subsequent holiday year carry over. Equally, albeit the approach does not reduce employee costs, other than potentially on termination, exploring to what extent employees might be asked to take holiday now, such that they're more available for work later in the year or have reduced the amount of taken holiday, which if there's a significant down turn leading to dismissals would, if not taken, otherwise increase the amount of a payment in lieu of accrued and outstanding holiday. To support this, some employers are revisiting the right to require employees to take statutory holiday by giving notice directing employees to take holiday on particular dates.

When planning workforce changes (especially if they may, otherwise, lead to job losses) you will be mindful of the announcement by the Governor of the Bank of England, that companies should consider support available from the Government or the Bank. The Government is encouraging and supporting businesses in retaining staff. That situation is evolving. The Government has announced the Furloughed Worker Scheme. As you might imagine, because the rules are changing so quickly, the guidance around the scheme is limited and vague – much of the detail remains to be worked through; this is clear from the language and words used in the announcement, including here. Broadly, the Government has offered to pay 80% of the wages paid to a furloughed worker (being a worker on temporary leave because of the economic conditions affecting the specific employer or the economy as a whole), up to a cap of £2,500 per month. HMRC are said to be working urgently to set up a system for reimbursement. What falls to qualify as recoverable wages under the scheme remains to be identified, noting that the announcement, also, refers to 'salary', which as we know is a narrower term.

See here for more details

If you would like some advice on this topic, please contact any member of our team:

COVID-19 Your workforce: supporting mental health when home working

Tue, 24 Mar 2020 11:17:05 Z

Now that schools have closed, the burden will increase for many, especially those with very young children. The pressure will be increased for some, or even many, because grandparents, often being a source of support, will not be available. Juggling work and home life will become difficult.

Here are some practical steps we are taking:

Creating structure to our days – so looking to preserve a normal working day, but ensuring we have regular breaks. We have mirrored (and modified) a school day, although a little longer! So in effect a personal school timetable. This gives us structure and down-time.
We are encouraging each other to take time out to take exercise, even if that's a walk outside or morning stretches.
We look to stay connected. Communicating becomes ever more important, not least to ensure we know what each other is doing, so that we can step in, for whatever reason, even at short notice. Skype is now part of our working day. This might be to catch up on work or even, reflecting our normal working days, to catch up over a 'coffee', talking about our day.
Holding friendly regular team check-in calls that allow us to share stories and chew the fat. Some of our teams are having daily "e-huddles" so that we still feel part of the team
We are going to the virtual pub! If your team regularly meets for a drink after work, all grab a tipple and raise your glass/cup while catching up with colleagues at the end of the day online. We have heard of some organisations that are holding virtual pub quizzes!

Various organisations have published notes and guidance on protecting mental health during this time. Here are some you may find useful:

Coronavirus tips for protecting your mental health during quarantine

COVID-19 social distancing wellness

Working from home tips for productivity mental health and staying healthy

Coronavirus and your wellbeing

If you would like some advice on this topic, please contact any member of our team:

Sharpen your blue pencil: the doctrine of severance in employment cases

Thu, 15 Aug 2019 15:57:28 +0100

Over the intervening 100 years, the law on restrictive covenants developed and changed but no case made it beyond the Court of Appeal.

Fast–forward to 2019. The last vestiges of the master/servant labour model are firmly consigned to the history books. The individual contract of employment is without doubt the cornerstone of modern labour relations in the UK. Supplementing this relationship is a rich tapestry of statutory employment protections woven over some 60 years. Our working world is global, competitive and increasingly digital. Now, more than ever, information, goodwill and trade connections are a highly prized commodity for almost every business.

Background to a landmark case

In Tillman v Egon Zehnder Ltd [2019] UKSC 32, one such business asked the Supreme Court to reconsider the law and to change it to be fit for modern day purposes. In its landmark judgment handed down in July, the Supreme Court has done so.

The core facts of the case are not unusual. Egon Zehnder (EZ) is a global specialist executive search and recruitment business. EZ recruited Mary-Caroline Tillman in 2004. As the High Court judge observed, the company regarded Ms Tillman as “a bit special”. She was recruited into a senior role on a salary of £120,000 and first year bonus of £100,000 and then rose steadily through the ranks of the organisation. By 2012, Ms Tillman was joint global head of the company’s financial services practice and a shareholder in the Swiss holding company.

What did Ms Tillman promise?

Reflecting the nature of her work and the risks to the interests of the business,
Ms Tillman’s contract of employment contained a number of restrictive covenants. The particular covenant which became the subject of the dispute was a six-month non-compete clause under which Ms Tillman promised that she would not:

“directly or indirectly engage or be concerned or interested in any business carried on in competition with any of the businesses of the company or any group
company…“

Was Ms Tillman’s promise valid?

Times moved on and, on 30 January 2017, Ms Tillman and EZ parted ways.
Ms Tillman then informed EZ that she intended to join Russell Reynolds Associates (RRA), a competitor of EZ. She planned to start work on 1 May 2017, when the non-compete covenant would still be running.

To square this circle, Ms Tillman alleged that her non-compete promise was void in restraint of trade, arguing that the words “interested in any business“ captured a minority shareholding in a company and that this made the covenant too broad. Interestingly, Ms Tillman had no intention of holding shares in RRA but this, of course, was irrelevant to the legal construction of the theoretical reach of the covenant on its face.

In any event, the High Court disagreed with Ms Tillman and granted EZ an injunction restraining her from joining RRA for the life of the covenant. Mann J held that “interested in“ in the restriction did not capture a shareholding in RRA and, therefore, the clause was not too broad.

On appeal, the Court of Appeal disagreed with Mann J and decided that a minority shareholding was indeed caught. EZ argued that, in that case, the offending words should be severed from the clause so that the parties’ bargain that Ms Tillman would not work for RRA for six months could be upheld. The Court of Appeal refused severance. The whole covenant would fall.

EZ appealed to the Supreme Court.

Role of severance in holding parties to their bargain

Having decided that the restraint of trade doctrine was engaged and agreeing with the Court of Appeal’s construction of the clause, the Supreme Court turned to the question of severance to determine whether the covenant could be saved.

The decision would stand or fall on the outcome of three interrelating doctrines:

Ordinary canons of contract law dictate that parties will be held to their bargain.
However, the doctrine of restraint of trade places a significant limitation on that principle by holding restrictive covenants void unless they reasonably protect a legitimate business interest. This is a fairly blunt instrument in redressing the real (or, sometimes, perceived) power imbalance between employer and employee.
Militating against this “all or nothing“ outcome is the doctrine of severance, allowing ancillary objectionable provisions to be removed from a contract without affecting the overall enforceability of the core bargain.

The balance between these principles is delicate and crucial.

Striking too far one way risks condoning employers deliberately drafting overly wide covenants.

But striking too far the other way risks the draconian effect of bulldozing legitimate promises between parties. As Lord Wilson observed: “High-ranking employees can do particular damage to the legitimate interests of their employers following termination of their employment; and it may be that, when they enter into their post-employment covenants, they are able to negotiate with their employers on nearly an equal footing.“

Severance: a different approach in employment cases?

Severance is a doctrine of general contract law, not specific to the employment field. However, over the last century, a body of case law had built up which placed a more restrictive, employee-friendly approach to severance in employment contracts. The high watermark was the Court of Appeal‘s judgment in Attwood v Lamont [1920] 3 KB 571. Younger LJ, whose judgment became the leading judgment, held that severance in the post-employment context was only available where a covenant was “not really a single covenant but in effect a combination of several distinct covenants” and where the part severed was merely trivial or technical.

In contrast to Attwood, the Court of Appeal in Beckett Investment Management Group Ltd v Hall [2007] EWCA Civ 613, took a different approach and agreed to sever wording in circumstances where it could not be regarded as a separate covenant.

The Court of Appeal in the EZ case had followed Attwood in refusing to sever “interested in” from the covenant because “it must be doubtful whether parts of a single covenant can be deleted without the contract becoming ‘not the sort of contract that the parties entered into at all'”.

Supreme Court makes new law

In overruling the Court of Appeal, Lord Wilson, with whom the other judges agreed, decided to overturn Attwood and allow the words “interested in” to be severed from the covenant, upholding the remainder in EZ’s favour.

Following Egon Zehnder, the three criteria for severance are:

That the unenforceable provision can be removed without adding to or modifying the remaining wording (the “blue pencil test”).
That the remaining terms continue to be supported by adequate consideration.
That the removal of the unenforceable provision would not generate any major change in the overall effect of all the post-employment restraints in the contract.

The right balance

The Supreme Court has endorsed a modern approach to severance. This is not, as some commentators have perhaps suggested, a charter for employers to draft sloppily with impunity. On the contrary, severance is only available if the court is satisfied that what remains makes sense, has consideration and is still (in all major senses) the promise the parties entered into. The burden remains on the employer to prove its legitimate business interest and that the covenant (absent any offending words) is reasonable and not a different promise. This strikes the right balance between the competing doctrines and sensibly reflects the changed (and changing) nature of the working world.

RPC represented Egon Zehnder Ltd in the High Court, Court of Appeal and Supreme Court in this case.

(1) post-employment restrictive covenants

This blog was first published on PLC's Employment and Discrimination Blog.

Put your little stone in the great mosaic

Wed, 07 Mar 2018 17:41:25 Z

Global appetite for change has shown itself recently in high profile campaigns like #metoo and Time's Up; in the BBC equal pay and gender pay gap debates and in any number of high profile cross-sector job losses as we navigate the post-Weinstein landscape.

IWD is a day designed to galvanize such desire for change into real, sustainable action by people, by business and by government. And on Thursday 8th March many of us will pause for thought. In our reflections, one question will come up time and time again: what can I actually do to improve gender equality?

It's a question I think (and talk!) about a lot. As an employment lawyer I have the privilege of working with and learning (OK, shamelessly borrowing) ideas from lots of inspirational individuals and businesses that are truly committed to answering this question. Their strides in this area are often part of a much broader diversity and inclusion commitment, within which gender equality is a key pillar. For the most part, there is agreement on a common goal and on the ability for individual people and businesses to effect real change if they have the will and the tools. As women's rights activist Alice Paul said "I always feel the movement is a sort of mosaic. Each of us puts in one little stone, and then you get a great mosaic at the end."

Inspired by those individuals and businesses, I suggest here some practical ideas your organisation could consider if you want to play a part in moving the needle on gender equality. Even if you are not, personally, in a leadership role, could you find a route to propose an idea to someone in your workplace who is? And if you are a business leader, is there an initiative that you will stand behind and sponsor?

1. Measure, measure, measure again

There's a saying (of somewhat disputed origin) that "what gets measured gets managed". And this idea is the basis for the gender pay gap reporting regime. By 5th April, UK employers covered by the legislation should have measured, and reported on, their gender pay and bonus gaps. Many will have found the process enlightening in terms of understanding what is at the root of any gender pay gap in their organisation.

But this reporting is just a first step. Next is the real work of trying to improve those statistics. Putting the data in a drawer to be dusted off only when 2019's reporting cycle rolls round would be, at best, a missed opportunity.

Whatever measures your organisation is considering to improve female progression (which is, of course, at the heart of the gender pay gap issue), think about how you ensure accountability. If your line managers are measured on short-term financial metrics alone, is real cultural change very likely?

2. Set pay for a job without reference to the recruit's existing salary

California has recently enacted a law which prohibits employers from relying upon salary history information when deciding whether to offer employment or what salary to offer a job applicant. This simple measure could have a fairly radical effect on the gender pay gap.

In the UK, we don't have this specific law (though we do have tangentially relevant legislation including on equal pay). But a business could decide to apply to itself a similar rule. Why would it? Because using an individual recruit's existing salary as a baseline risks perpetuating any existing cycle of disparate pay. Whereas setting the salary for a role on a more neutral basis can still take into account relevant market forces whilst also levelling the playing field.

3. Commit to a female leadership target

Quotas are divisive. For every person who feels they smack of tokenism, there is another who believes that a quota can be a pragmatic way to speed up the pace of change.

Putting quotas to one side, what is your view on targets? A target of, say, 30% female board members by 2020, does not require a company to "positively discriminate". Nor must it lead to under qualified women somehow "leapfrogging" better performing men to the top. But it can be an effective way for a business to ensure focus on proactively identifying and nurturing its female talent pipeline. This is particularly so if the target is made public and supported by a deadline.

4. Launch an Allies campaign

Stonewall say "…we know the power and the necessity of allies to transform workplace cultures from unaccepting to accepting and from accepting to actively inclusive for lesbian, gay, bisexual and trans people.".

This powerful way to support an inclusive culture can be applied to any strand of diversity, including gender.

For example, at RPC we have recently launched an Allies programme which will include talks, learning opportunities, and social events. The programme is part of the firm's commitment to an inclusive working environment for everyone. The aim is to offer a network of friendly faces and approachable people to lend support where needed. The activities that make up our programme will be focussed on one inclusion & diversity stream every six months, including: carers, disability, ethnicity, faith, LGBT+, mental health, socio-economic background and, of course, gender.

5. Start with an assumption that all roles can be performed flexibly

The Fawcett Society is campaigning for employers to advertise all jobs in their organisation as flexible, part-time or a job share

My good friend Sophie (a very successful businesswoman) and I once tried to write a list of the jobs we thought could probably/definitely, never be performed flexibly. We came up with two: World Leader and Pop Star (the second largely driven by Sophie's horror at the prospect of Rhianna sending a job-share partner to perform at the O2 in her stead).

Assuming you are not recruiting the next Prime Minister, President or X-Factor winner, is it naïve of me to ask if there are jobs in your organisation that can only ever be done by one full-time person? Maybe there genuinely are and that's fine. But it is still a worthwhile exercise to run the rule over that default position and to check if it stands up to scrutiny. And not just because of the potential risk of indirect sex discrimination, though that is important. But also because the dire lack of available, good, senior, flexible jobs contributes hugely to the gender pay gap and to the loss of talent from the workplace which is very much to all of our detriments.

Every year, on 8th March, we are each issued a call to arms. This year, we are being asked to #PressforProgress. With that in mind, which little stones will you put in the great mosaic?

About the author

Kelly is an experienced employment lawyer who works with clients on complex international and national employment matters, with particular focus on outsourcing, restructuring and the people aspects of organisational change. Kelly works alongside clients' HR and Legal teams in developing and implementing strategies for the recruitment, retention and motivation of employees. She has a focus on 'employee engagement' and is passionate about issues of diversity and inclusion. For more information on how RPC can help you with your gender pay gap and equality initiatives please email: GenderPay@rpclegal.com.

Restrictive Covenant Clause Enforced Despite it Containing a Drafting Error

Thu, 17 Apr 2014 08:50:00 +0100

Summary

The Court held that a restrictive covenant which contained an error which if adopted would make it meaningless and, therefore, not afford the protection intended could, nonetheless, be enforced by the Court making some changes to it. The case is unusual. It is, also, a first instance decision. It should, therefore, be treated with caution.

Facts

Prophet Plc is in the business of developing, selling and updating computer software for use in the fresh produce industry.

Mr Huggett was employed by Prophet Plc as a Sales Manager. His employment contract contained a post termination restriction as follows:

"The Employee shall not during the continuance of this Agreement, or for a period of 12 months from the determination thereof (for whatever reason and in whatsoever manner), without the consent in writing of the Board of Directors of the Company, either solely or jointly with, or as, a Director, Manager, Agent, Consultant or Employee of any other person, firm or company, directly or indirectly, carry on or be engaged, concerned or interested in any business which is similar to, or competes with, any business of the Company in which the Employee shall have worked whilst employed hereunder (in that they provide computer software systems of whatever kind to any company involved in the fresh produce industry) within the geographical area (namely the United Kingdom), except as a shareholder or debenture holder not having a controlling interest in any Company the shares of which are quoted on a recognised Stock Exchange. Provided that this restriction shall only operate to prevent the Employee from being so engaged, employed, concerned or interested in any area and in connection with any products in, or on, which he/she was involved whilst employed hereunder. [emphasis added]"

Mr Huggett subsequently left the employment of Prophet Plc and went to work for a competitor.

Prophet Plc then brought a claim against Mr Huggett seeking to enforce the terms of the restrictive covenant.

Construction of the clause

The Judge accepted that on a literal reading of the covenant the competitor would never provide the software systems produced by Prophet Plc and therefore the covenant would not give it the protection sought. The defect in the clause appears as highlighted above – the effect of this sentence qualified the restriction by defining what competition would mean in that it related to the provision of computer software systems for the fresh produce industry, produced by Prophet.

Ultimately the Judge decided that Mr Huggett's assertion that the covenant meant to say what it did was not correct. Instead, the Judge concluded that the addition of the words "or similar thereto" to the covenant reflected its true meaning.

Significance of the decision

It is well established that in certain circumstances judges may to remove words from a clause to give effect to its meaning – this is known as the blue pencil principle. What this case demonstrates is the flexibility the courts may have in the opposite situation where words need to be added to give effect to what the parties intended and agreed at the time. However, the decision does come with a word of caution. The case is a first instance decision and may well be appealed to a higher court. Only time will tell how important the decision will be.

Different Emails, Read Together, Can be a Qualifying Whistleblowing Disclosure

Fri, 21 Mar 2014 08:43:00 Z

Facts

Mr Shaw was employed by Norbrook Laboratories (2B) Limited. He worked as a sales and business communications manager. Mr Shaw's duties included managing a team of Territory Managers. The Territory Managers drove to customers to try to obtain sales.

In the winter of 2010 the Territory Managers raised concerns with Mr Shaw about their difficulties travelling to their appointments because of large snow falls. On 30 November 2010, Mr Shaw emailed Norbrook's Health & Safety Manager. He was told there was no applicable company policy or risk assessment. Mr Shaw responded, explaining he was hoping for some formal guidance from Norbrook due to the pressure on the team to continue driving in snowy conditions. On December 2010, Mr Shaw sent an email to a member of the HR team requesting clarification about his team's pay if unable to travel due to the snow. He also repeated his earlier request for formal guidance and referred to his duty to care for his team's health and safety.

Mr Shaw was subsequently dismissed. He brought a whistleblowing claim arguing that his dismissal was automatically unfair because he had made a protected disclosure.

The Employment Tribunal considered whether as a preliminary issue the three emails amounted to qualifying disclosure. The Tribunal determined that, taken as a whole, the emails were capable of amounting to a qualifying disclosure.

Norbrook appealed.

The decision of the EAT

The EAT upheld the Tribunal's decision. It agreed that the Tribunal was capable of making a finding that the emails could be taken as a whole to amount to a qualifying disclosure. The fact that the emails did not go to the same recipient did not mean that they were not capable of amounting to a qualifying disclosure when taken as a whole. This was on the basis that Mr Shaw's final email referred to the earlier communications.

Conclusion

The EAT's decision makes it easier for employees and workers to bring a claim for whistleblowing. The case confirms that separate correspondence can cumulatively amount to a qualifying disclosure. It also confirms that such correspondence does not need to be sent to the same recipient where the earlier correspondence is referred to in it.

British National Working Overseas Has No Right to Bring a Claim in the Employment Tribunals

Fri, 07 Feb 2014 08:37:00 Z

INTRODUCTION

The tests are different according to the type of claim which is being brought. These tests are continually being challenged and developed mainly through case law. Such complexities are highlighted in a recent case from the Employment Appeal Tribunal (EAT), Hassan v Shell International Shipping Services (Pte) Limited and Others, where the EAT determined that a British national working on a ship in Singapore had no right to bring Tribunal claims in England for unfair dismissal, discrimination and breach of contract.

THE FACTS

Mr Hassan, a British national, lived in Kent. He was employed by a Singapore company – Shell International Shipping Services (Pte) Limited as a second officer of a Singapore flagged ship. Mr Hassan's employer contracted out his day-to-day management to the company registered in the Isle of Man. His employer also entered into a manning agreement with a company which had its head office in London.

After several years' service Mr Hassan was dismissed. He was dismissed by a letter which was sent from the Isle of Man company. Mr Hassan brought claims in the Employment Tribunal for unfair dismissal, race discrimination and breach of contract. The Tribunal decided that it did not have jurisdiction to hear his claims. He appealed against the decision to the EAT. His appeal was dismissed.

Mr Hassan's claim for discrimination

The Equality Act 2010 contains specific reference to seafarers working on board a ship in circumstances set out under the Equality Act 2010 (Work on the Ships and Hovercraft) Regulations 2011. However, the EAT found that Mr Hassan did not satisfy the conditions of the Regulations. This is because Mr Hassan was not employed on a UK registered vessel with a port in Great Britain specified as the vessel's registered port of choice.

Mr Hassan ran an alternative argument. This too was unsuccessful. He tried to rely on another EAT case called Bleuse v MTB Transport which decided that there must be an effective remedy for vindication of EU rights. Here Mr Hassan relied on the EU Race Equality Directive. The EAT rejected his argument. In contrast to Mr Hassan's case, Bleuse concerned an individual working in the European . There was no authority for Bleuse being applied when the acts complained of occurred outside the EU. Mr Hassan was based in Singapore at the time of his dismissal.

Mr Hassan's unfair dismissal claim

Mr Hassan faced a difficult initial hurdle which he did not overcome. He was employed by a company in Singapore. Under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (which were in force at the relevant time), the Tribunal would have jurisdiction where the respondent resided or carried on business in England and Wales. The EAT found that there was no other way of interpreting this section and based on the facts could not hear his claim.

If the EAT had found Mr Hassan had satisfied the relevant section of these Regulations then it would have to have gone on to apply the Lawson v Serco test to determine whether the Tribunal had territorial jurisdiction to hear the claim.

Claim for breach of contract

Mr Hassan asked to raise a new point of law as to whether the Tribunal would have jurisdiction to hear his breach of contract claim on the basis that the dismissal took place in England. The EAT refused Mr Hassan permission to run the point because it would have required a further factual enquiry into whether Mr Hassan had read the dismissal letter in England. In the circumstances the breach of contract claim failed.

CONCLUSION

The majority of recent cases on this area have involved employers based in the UK with their staff overseas. In contrast this case concerned an employer based in Singapore. The case highlights an additional hurdle employees have to overcome in these circumstances to bring a claim for unfair dismissal in the English Tribunals.

We anticipate there will be further decisions on the applicability of Bleuse. This is a question that may need to be referred to the European Court.

Simon Henthorn

Simon appeared as a junior advocate in the Supreme Court case of Duncombe -v- DCSF – a case determining the rights of overseas employees to bring claims under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 and for unfair dismissal.

Collective Redundancy Consultation: Expiry of Fixed Term Contract Does Not Count Towards 20+ Headcount

Fri, 07 Feb 2014 08:29:00 Z

The collective redundancy consultation obligations do not apply to employees dismissed on expiry of their fixed-term contracts. This is because for the purposes of collective redundancy consultation, the dismissal of an employee on the expiry of their fixed-term contracts is for a "reason relating to them as individuals".

Background

An employer must consult with appropriate representatives of affected employees when "proposing to dismiss" as redundant 20 or more employees at one establishment within a period of 90 days or less (section 188(1), Trade and Labour Relations (Consolidation) Act 1992 (TULRCA)). A failure by the employer can lead to a protective award being made against the employer.

"Dismissal as redundant" means "a dismissal for a reason not related to the individual concerned or for a number of reasons all of which are not so related"(section 195, TULRCA).

In University College –v- University of Sterling, the Scottish Court considered whether the expiry of fixed-term contracts were dismissals for redundancy as defined above.

Facts of case

The University of Stirling engaged four employees on fixed-term contracts (three for specific projects and one for maternity cover).
The contracts specified that they would end at a defined time.
The contracts ended during a redundancy exercise.
The University and College trade brought a claim on behalf of the employees, arguing that they were dismissed as redundant and Stirling had not complied with its collective consultation obligations.
The tribunal considered whether the expiry of a fixed-term contract amounted to an employee being dismissed as redundant. In the tribunal's view, the expression "for a reason not related to the individual concerned" was unclear as the reason for dismissal will always relate to the individual in some way. A "reason relating to the individual" should be interpreted as a reason "direct and personal" to the individual, for example conduct or capability.
The tribunal found that upon expiry of their contracts, the employees were dismissed as redundant. Stirling appealed.
The EAT upheld Stirling's appeal and found that a reason relates to an individual if it has "something to do with him such as something he is, or something he has done". It is distinguishable from a reason relating to the employer, such as the need to change its business.
Consultation is not required where the reason for non-renewal of a fixed-term contract is purely the termination, in the normal course, at a pre-determined agreed and defined date.
In this case, at least one of the reasons for the employees' dismissals was the fact that they had agreed that their contracts would come to an end on a particular date or after a particular event. The reason for their dismissal was a reason relating to an individual as it depended on their own approach to their employment.
University College appealed to the Court of Session.

Appeal outcome

The Court of Session agreed that the expiry of a fixed-term contract is not a dismissal for collective redundancy purposes.

The court saw nothing unclear or ambiguous about the wording of section 195. The difficult question was: did the reason for dismissal "relate" to the individuals concerned or not?

If an employer were to dismiss a large number of employees on fixed-term contracts due to demands of the business (rather than the expiry of the agreed finite term) then it would amount to a situation not related to the individual. However, in this case, as the fixed-term contracts entered into were on a voluntary basis for specific reasons (particular projects or maternity leave cover), the fact that each employee had entered into such a contract was a matter that related to the individual.

Points to note

This decision runs counter a prevailing view that the expiry of a fixed-term contract could give rise to a redundancy situation and thus impose collective consultancy obligations on employers. In the earlier case of Lancaster University v The University & College [2011] IRLR 4, the EAT did not even question whether the expiry of fixed-term contracts could give rise to collective consultation; it assumed that it could and consequently did not discuss the issue any further.
The Court of Sessions re-confirmed that simply because someone is employed under a fixed-term contract will not necessarily automatically excluded them from the statutory duty to consult collectively for redundancy. However, in this case, it was of particular importance that at least one of the reasons for the employees' dismissals was the fact that they had agreed that their contracts would come to an end on a particular date or after a particular event. The reason for their dismissal was a reason relating to an individual and not a reason relating to the employer.

Report Card

Mon, 28 Jan 2013 08:22:00 Z

Among the latest efforts to be marked are the proposed reforms to TUPE, the response to last year's consultation on "Ending the Employment Relationship" and the unveiling of the brand spanking new status of "employee owner".

We have concluded that they must try harder.

I must not copy someone else's work

The giddily anticipated (well, by me) TUPE consultation tables a number of wide-ranging changes to the 2006 regulations. The Government is aiming to improve and simplify the law to help to deliver growth for business while providing continuing protection for employees.

Some of the proposed changes might well help to achieve this aim although there are unanswered questions about how some changes will work within the confines of EU law and in practice (just call me a pedant). One proposal is to better align the concept of "economic technical or organisational (ETO) reason entailing a change in the workforce" with redundancy legislation. So, transfer connected dismissals arising from a change in workplace location would not be automatically unfair. Also welcome is the suggestion that pre-transfer redundancy consultation by an incoming employer should "count" for the purposes of discharging collective redundancy consultation obligations which arise after the transfer. All sensible stuff.

Where the Government and I part company is on its planned repeal of the service provision change regulations in its desire not to "gold-plate" the Acquired Rights Directive. Far from making TUPE "much simpler and less confusing for employers", repeal would simply return us to the pre-2006 arguments about whether TUPE applies to outsourcing transactions. Businesses will need more advice on contractual protections, more time will be spent deciphering European case law and litigation is bound to ensue. It is one thing not to gold-plate a Directive. It is entirely another to have a policy of simply "copying-out" Directives as an end in itself. What a missed opportunity to genuinely simplify the law and provide much needed clarity for UK businesses.

Show your working

Professor Brian Cox would shudder, but the unfair dismissal cap is like the black hole of employment law. It warps everything around it. So we are used to seeing strong unfair dismissal claims coupled with weak discrimination or whistleblowing claims simply to open the possibility that the cap might be breached when it comes to compensation. The problem (as every Respondent lawyer knows) is that employees taking a scattergun approach to instances of discrimination, and so discrimination claims are more time consuming and expensive to defend.

This irksome trend is set to increase in July with the Government's proposed reduction in the unfair dismissal cap to a year's salary. Instead of defending an unfair dismissal claim on its merits, more time and cost will be incurred by Claimants, Respondents and Tribunals in dealing with spurious discrimination claims.

The Government believes that a cap of around £70,000 creates an unhelpful perception that Claimants will get far more than a median award of around £5,000 would suggest. Fair enough - perhaps that is true. However, wouldn't this be better dealt with by addressing the perception rather than shifting the reality? In terms of our school report, we can't give any marks where the Government's solution doesn't appear to have any evidential link to the problem identified.

As Professor Cox said in a past life, perhaps things can only get better?

Please, sir, it's not fair

Who wants to be an employee owner?

Announced by George Osborne in October 2012, the idea is simple. The new employee waives any entitlement to unfair dismissal rights (among other things) and in return gets no less than £2,000 worth of shares in the employer. These shares would be bought back at on termination at a "reasonable value" but would it appears be subject to whatever bad leaver (i.e. forfeiture) provisions the employer offered.

The would-be employee would it appears not be able to reject the shares and instead enjoy employment rights. It's take it or leave it. Many might want to leave it. In a bearish job market, however, some may have little choice.

Co-written with Christopher Braganza, Senior Associate at RPC

Faith and Freedom

Sun, 27 Jan 2013 08:13:00 Z

Readers will recall that Ms Ladele's brand of Christianity holds that gay relationships are sinful. She felt that to perform civil partnerships would be to condone (as she saw it) immoral behaviour. Civil partnerships had not existed when she began her employment as a registrar. The Tribunal found that Islington could have rearranged registrars' duties - without any impact on the service to the public - so that Ms Ladele would not have had to perform civil partnership ceremonies. No gay couple coming to celebrate their partnership would know any different. Nevertheless, the Court of Appeal held that Islington, in fulfilling its objective of removing unlawful discrimination from its workplace, was objectively justified in requiring Ms Ladele to conduct civil partnerships.

The difficulty, of course, with Ms Ladele's case is: who is the victim?

As readers cannot have missed, the ECHR gave judgment recently on four cases brought by British Christians including Ms Ladele involving their "right" (as they saw it) of manifesting their beliefs at work. One, Natalie Eweida, won her claim. The ECHR considered that Article 9 (freedom of religion) entitled her to wear a small and discreet cross over her uniform as a British Airways check in assistant. BA has since changed its policy to permit such items. Ms Ladele and the other two claimants lost.

Much has been written about these judgments. Some have hailed them as evidence of the flowing tide of secularism. Others see it as evidence that a European-driven Human Rights Machine works only in favour of "liberal" causes and individuals.

But these commentators are fighting yesterday's culture war. Parliament and the EU, representing (however imperfectly) the moral consensus of society, have decided that to treat people less favourably in the workplace (or in the provision of goods and services) because they're gay is to be unlawful. Particular religions or particular religious people may feel their conscience compels them otherwise - but logically they will then need to face the sanction of the secular state. Pending a withdrawal from the EU (and its anti-discrimination directives), that legal position is not going to change.

So that's not really what interests me.

Ms Ladele's case raises a different point: what is the point of anti-discrimination law?

Is it to change attitudes? Or is it to stop people suffering discrimination? Put another way, does the law police the six inches inside the skull or the world outside? Most of us would, I think, say the latter. People who have not suffered discrimination themselves do not in general have a right to bring a claim against an individual who may hold a belief they dislike. Simply, I cannot sue someone just for being a member of the British National Party.

The problem is that Ms Ladele's case, on its facts, looks like a victimless crime. Surely freedom of expression can extend that much?

For the avoidance of doubt (as we lawyers like to say), I think Ms Ladele's views are wrong. However, freedom of speech is as hard won as any anti-discrimination laws, and we should be as vigilant in protecting it.