Labour’s Employment Rights Bill was published on 10^th October, the first stage of their Plan to Make Work Pay, in what’s been hailed by CEO of the CIPD as ”the greatest shift in employment legislation in decades”.

The Bill is the headline plan, there is still lots of detail missing, and some changes that were predicted, have not been included in this stage. The government plans to consult on the reforms next year, and any new legislation will not be implemented until 2026, at the earliest.

Here are the key things you need to be aware of:

Right to claim unfair dismissal will be a day one right, but with a caveat

Currently those dismissed with less than 2 years continuous service can’t claim unfair dismissal at an employment tribunal.  This requirement for 2 years service will disappear, and any employee would in theory have the right to make a claim.

However, there will be consultation on the use of a statutory probation period to allow for an initial judgement about a new joiner’s suitability for the role. Indications are this will either be a 6 or 9 month statutory probation period. The suggestion is that there will be a simplified process for dismissal during the statutory probation period, but there is still much detail to be provided prior to 2026 about how it will work in practice.

Employers will be thinking about how they can make their recruitment processes more stringent, so the right hiring decisions are made at the start, with some employers saying that they are less likely to take risks at the appointment stage, for example offering a role to a candidate who lacks experience but shows enthusiasm.

Flexible working will be the default, but with a caveat

Flexibility will be the default, unless the employer can prove it’s unreasonable, for a potentially valid reason, including the burden of additional costs, a detrimental effect on ability to meet customer demand, an inability to re-organise work among existing staff or recruit additional staff, and a detrimental effect on quality or performance; all of which are currently justifiable reasons for rejecting a flexible working request.

Currently employees with any length of service can request to work flexibly, and this request can only be refused on specific grounds – which are similar if not the same as those included as a valid reason for disallowing default flexibility. There is a change of emphasis and there will be a greater requirement for the employer to demonstrate why the role can’t be done flexibly as requested.

Employers will be thinking about how they manage the selection and onboarding processes so there is transparency about the employee’s requirement or desire for flexibility and what is reasonable, from the start.

Zero-hours contracts will stop, but with a caveat

Workers will have the right to be offered a contract with guaranteed hours, based on their regular hours worked over a defined period, expected to be the previous 12 weeks.  However, workers can opt to remain on a zero hours contract if they prefer.

This replaces previous legislation due to be implemented where workers could request a predictable working pattern if they had 26 weeks’ service.

Employers will be considering how they currently use zero hours contracts, if there’s an alternative contract (for example a fixed term contract), and review the hours their zero hours workers currently work to see how they may be impacted.

Parental rights will be strengthened with expanded leave entitlements

Employees will have a day one right to paternity, parental, and bereavement leave. Currently employees need 26 weeks of continuous service to qualify for statutory paternity and ordinary parental leave.

Bereavement leave will extend beyond the existing entitlement for parents who lose a child. Broader compassionate leave rights are expected but the details of how long and whether it will be paid remain uncertain.

Employers will be considering what the financial and practical impact of this change might be, looking at the demographics of their workforce, allowing for planning and mitigating risk.

Employees will get sick pay from their first day of illness

There will no longer be any ‘waiting days’ before an employee who is off work due to sickness will be eligible for SSP.  This pay will now be available from the first day of their absence, provided the employee meets the eligibility criteria. The criteria are also likely to be changed to make it more accessible for all employees, regardless of their earnings level.

Employers will be looking at their current sickness absence figures, and planning for the increase in costs of the additional 3 days SSP applicable.

There will be a ban on ‘fire and rehire’ practices, but with a caveat

The government will shut down the ‘loopholes’ that allow ‘fire and rehire’ and ‘fire and replace’ to continue. The practice of terminating an employee’s contract and rehiring them on different terms will be restricted, and these dismissals will be treated as ‘automatically unfair’, unless employers can evidence financial hardship as the reason for the change to terms and it was unavoidable. Employers will need to show such a change was a ‘last resort’ after thorough consultation and consideration of alternatives.

Employers will be considering what other changes they could make should there be a need to reduce costs across the business, before looking at forcing through changes to worker terms and conditions, so they can demonstrate it is a last resort.

Collective redundancy consultation and notification requirements will change

When an employer proposes making 20 or more redundancies at one establishment, there is a requirement to notify the DBIS and collectively consult.  The changes proposed mean there will be a requirement to collectively consult if the Company intends to make more than 20 redundancies, regardless of which establishment in the UK the losses will apply.

Employers will need to review their policies and internal procedures for establishing the need for collective consultation processes and plan accordingly should redundancies be necessary.

Requirement to prevent sexual harassment of workers will be extended

On 26 October, the Worker Protection Act 2023 came into force, introducing a new duty for employers to take ‘reasonable steps’ to prevent sexual harassment of their employees.  The Labour government has set out its intention to require employers to take ‘all reasonable steps’ to prevent sexual harassment, rather than just ‘reasonable steps’. It will also make employers vicariously responsible for protecting workers against harassment by third parties, a measure which was removed from the Worker Protection Act during the parliamentary process.

Employers will need to go ‘belt and braces’ with the preventative steps they can take in their business to prevent sexual harassment and tighten up how they can reasonably prevent harassment by a third party, as well as how they should respond to a complaint in light of this new liability.

Firms will be required to publish their intentions around improving equality

Large organisations (250+ employees) will have to develop and publish an equality action plan to show the steps they are taking in relation to gender equality.

 A new Fair Work Agency will crack down on unscrupulous employers

The government has announced it will establish the Fair Work Agency, combining existing enforcement functions around minimum wage, statutory sick pay, the employment tribunal penalty scheme, labour exploitation and modern slavery, to create a “strong, recognisable single brand” that will make it easier for individuals to know where to go for help. The Fair Work Agency will also cover a new area of enforcement – the holiday pay policy.

The Strikes Act and Trade Union Act 2016 will be repealed

The Bill will repeal the minimum service levels legislation introduced in 2023, and will repeal all but two parts of the Trade Union Act 2016.

The new government has set out plans to introduce new rights of workplace access for trade union officials and employer obligation to inform employees of their right to join a union.  The bill also brought forward measures to modernise trade union laws, including a reduction in the threshold for a recognition application from 10 per cent of the workforce.

Employers may want to introduce a ‘staff forum’ as a preventative measure to minimise the likelihood of union presence or recognition, or how they could engage proactively with unions in a positive way to build good employee relations. Contracts will need to be revised to include employee’s rights to join a union, and a communications plan to ensure the need to remind them will need to be devised.

Other plans outside of the Employment Rights Bill

The government has stated some of its commitments will be delivered outside of legislation, and they believe they can deliver more reform and therefore do not need all the commitments to be included in the bill.

This includes:

• Introducing the ‘right to switch off’, to prevent employers from contacting staff outside of their working hours.
• expanding the Equality (Race and Disability) Bill making it mandatory for large employers to report their ethnicity and disability pay gap.
• consulting on single worker status, aiming to transition towards a simpler two-part framework for employment status
• reviewing parental leave and carers’ leave systems

As a reminder, Labour’s Employment Rights Bill is subject to consultation as well as the usual passage through the House of Commons and the House of Lords, before it will become law in 2026, so there is plenty of time to prepare. More information is available here.

If you need help preparing, please get in touch.

From 26^th October 2024, businesses will have to fulfil a new requirement to prevent sexual harassment in the workplace. This is due to the introduction of the Worker Protection (Amendment of Equality Act 2010) Act 2023. The EHRC guidance suggests this preventative duty extends to harassment of this kind by a third-party. This includes customers, clients, suppliers, visitors, members of the public – anyone who interacts with your staff at work. Essentially, employers potentially have vicarious liability for the acts of colleagues and third-parties in the workplace. That said the situation with regard to third parties is still relatively unclear from a legal perspective. The new Labour government have indicated that they intend to strengthen this new protection, so employers would do well to be on the front foot now, as there may be more to come.

What are employers expected to do?

Employers are expected to take ‘reasonable steps’ to prevent sexual harassment at work, although there is no definition of what those reasonable steps might be. The expectation is that they include actions that are practical, proportionate and tailored to the specific workplace. If employers can demonstrate that they took these reasonable steps, they might be able to successfully defend a claim of sexual harassment at work at a tribunal. Failure to do so could not only result in an uncapped compensation payment to the claimant, but also up to 25% uplift on compensation if an employer has breached the specific duty to prevent sexual harassment.

10 Reasonable steps to consider

1. Ensure your anti-harassment policies are up to date and reflect the new requirements. Make it clear what the Company’s expectations about behaviour in the workplace are. Consider creating a specific anti-sexual harassment policy and ensure this is regularly communicated to all staff, and third-parties.
2. Ensure that the ‘workplace’ is correctly defined in line with the Equality Act.  This extends to workplace social and off-site events, and interactions (both in person, in writing and on social media) that are connected to work.
3. Conduct a risk assessment of your workplace to identify where there is a risk of harassment. Ensure you include third-party risk, review the number of complaints received and the outcomes of those investigations.
4. Conduct regular anonymous staff surveys to get feedback on workplace culture including this specific area.  Or create an anonymous reporting system through the use of QR codes, publicised in discrete areas.
5. Ensure the process for raising a complaint is straightforward, that it’s clearly explained and easy to access.
6. Put up notices in staff areas, and anywhere your staff come in to contact with third parties.
7. Invest in up-to-date regular mandatory anti-harassment training. Use this to educate employees about acceptable behaviour, and what to do if they witness sexual harassment.
8. Invest in up-to-date regular mandatory manager training. Use this to educate your people managers about how to address issues and spot the early signs of harassment.
9. Ensure those who are responsible for investigating any complaints are trained and capable of doing so.
10. Ensure the senior team are aligned in taking a zero-tolerance approach to harassment. Make sure they are committed to creating and maintaining a culture that values diversity, inclusion and respect.

Consequences

If your employees do experience sexual harassment in the workplace, there are a number of different negative consequences.

As well as putting the business at risk of an employment tribunal claim (which is both costly and time-consuming), the consequences of sexual harassment in the ‘post #metoo era’ extend wider than this:

• Your reputation as a business may come under scrutiny. This may lead to potential lost business opportunities if investors, stakeholders, or potential customers or clients decide they don’t want to be associated with a business that has a problem with sexual harassment. Publicly listed companies have lost share value when issues of sexual harassment have been present.
• Your reputation as an employer will be detrimentally affected – not many people would seek to be employed by a company that has issues with sexual harassment in the workplace, and those already working for you will undoubtedly look for other opportunities. You are likely to find it hard to find and hang on to talent.
• The mental health of your employees is likely to be detrimentally affected, affecting productivity, absence and performance.
• The EHRC also have the ability to investigate and enforce the new requirements if an employer fails to comply with the requirement to prevent sexual harassment in the workplace. This process would also be extremely involved and time-consuming and further damage your reputation.

This change takes effect on 26^th October 2024, which means you need to have the ‘reasonable steps’ in place by this date in order to avoid a breach of the new duty to prevent sexual harassment in the workplace.

If you are concerned about what these changes mean for your business, Helpful HR can help, so get in touch.

In 2019 a Supreme Court ruling (Harpur Trust v Brazel) meant that permanent part-year workers, and irregular hours workers were entitled to 5.6 weeks’ holiday pay, based on their average weekly pay during the weeks they worked (disregarding any periods where no work was done). This meant that in theory, part-year workers would be disproportionately advantaged, when compared with their full-time colleagues.

Before the Conservatives left government in July 2024, they changed the statutory regulations, to allow for irregular hours or part-year workers to have their holiday paid to them on the basis of a 12.07% calculation of their pay received during the pay period. This calculation can be used during any holiday year which starts after 1st April 2024.

The 12.07% calculation is based on the statutory minimum amount of holiday. If contracts provide a more generous holiday allowance, then the percentage must be amended accordingly.

What qualifies as an ‘irregular hours worker’?

The new regulations define irregular hours workers as ‘wholly or mostly variable’ paid hours under the terms of their contract in each pay period. This could mean a casual or zero hours contract, or a contract which states their hours are variable, provided that the reality is that their working hours vary week to week.

What qualifies as a ‘part-year worker’?

A part-year worker is defined as a worker who is only required to work for part of the year, and there must be periods in the year of at least a week during which they are not required to work, and for which they are not paid. These workers may have fixed hours for the times they are working (unlike irregular hours workers).

Practicalities

The changes mean that in one pay period (for example a month, if paid monthly; a week if paid weekly) you can calculate holiday pay based on the relevant percentage calculation (12.07% for statutory minimum holiday) and pay this directly to the worker, provided it’s listed separately as ‘Holiday Pay’ in their payslip.  This is now referred to as ‘rolled-up holiday pay’, even though it’s not incorporated in to the worker’s hourly rate.

This means that those workers would not request and take their paid annual leave, as this payment covers their statutory entitlement to holiday, and is on record as having been paid in this way.

Employers can continue to use the current 52-week reference period to calculate holiday entitlement and pay, if the worker takes paid holiday, and the government have provided further guidance on this here.

Here are 2 worked examples:

Employee A is entitled to statutory holiday (5.6 weeks holiday per full year), and they are an irregular hours worker. The company holiday year started on 1st April 2024. Employee A is paid monthly.

In July, Employee A worked a total of 50 hours, on a normal pay rate of £15 per hour.  They also worked 8 hours of overtime on x1.5 their hourly rate. Therefore their pay for July is calculated as follows:

50 x £15 = £750

8 x £15 x 1.5 = £180

Employee A’s total pay for July is £930.

In order to calculate Employee A’s holiday pay, this would be 12.07% of their pay for that month. As they are entitled to statutory holiday, you would do the following calculation:

£930 x 12.07% = £112.21

The holiday pay that can therefore be processed for July 2024, with the employee’s normal pay would be £112.21

Employee B is entitled to contractual holiday which totals 6.4 weeks for a full year, based on a full-time entitlement. They are a part-year worker, and the holiday year started on 1st July 2024. Employee B is paid monthly.

In July the employee didn’t work at all. However they worked full-time hours during August, which totalled 165 hours, at a normal pay rate of £20 per hour.

Employee B’s pay for July is zero, therefore they would not be entitled to holiday pay for that month.

However in August their total pay was 165 x £20 = £3,300.

In order to calculate Employee B’s holiday pay, you first need to establish the correct percentage to use.  This is calculated as follows:

52 weeks – 6.4 weeks = 45.6.

6.4/45.6 = 14.04

Therefore the correct percentage holiday pay accrual for Employee B is 14.04%

To calculate their holiday pay for August you would therefore do the following calculation:

£3300 x 14.04% = £463.32

The holiday pay that can therefore be processed for August 2024, with the employee’s normal pay would be £463.32

Employers however should be mindful of the details of their worker’s contracts.  If they stipulate that the worker is entitled to paid leave, in order to change to rolled-up holiday pay, employers would need to seek the written agreement of the worker in order to make this change to their terms of employment.

If you’re not sure what the changes and new rules means for your staff, get in touch.

The evolution of Artificial Intelligence (AI) has sparked much excitement and debate. From revolutionising industries to transforming daily life, AI’s potential seems limitless. However, along with its promise comes significant ethical considerations and potential pitfalls. As AI continues to evolve at a rapid pace, employers must navigate these complexities with diligence and responsibility to ensure its used ethically and legally.

Artificial Intelligence traces its roots back to the mid-20th century when researchers began exploring the concept of machines that could mimic human intelligence. Over the decades, advancements in computing power, algorithms, and data availability propelled AI from theoretical concepts to practical applications.

Benefits of Artificial Intelligence

There are many potential benefits of AI. It enhances efficiency and productivity by automating repetitive tasks, thereby freeing up people for more creative and strategic activities. AI-driven analytics enable data-driven decision-making, improving accuracy and predicting outcomes. In healthcare, AI aids in diagnosis, drug discovery, and personalised treatment plans, ultimately having the potential to save lives. Moreover, AI-powered technologies enhance accessibility, for example language translation.

Be warned!

Despite its benefits, the evolution of Artificial Intelligence also presents pitfalls and ethical concerns. One major issue is bias in AI algorithms, which can perpetuate discrimination and inequity, particularly in hiring, lending, and law enforcement. Privacy breaches are another concern, as AI systems often rely on vast amounts of personal data, raising questions about consent and data protection. Moreover, there’s the looming spectre of job displacement, with fears that automation threatens to render certain professions obsolete, exacerbating socio-economic inequalities.

What should employers do?

It’s a tricky area, but here are 5 tips for potential development and implementation of AI in the workplace:

1. Transparent policies and practices: Employers must establish clear guidelines and protocols for the ethical use of AI in the workplace. Transparency fosters trust among employees and stakeholders and ensures accountability.
2. Diverse and inclusive development teams: Building AI systems free from bias requires diverse perspectives during development. Employers should cultivate inclusive teams that represent a variety of backgrounds and experiences to mitigate algorithmic bias and ensure fairness.
3. Continuous monitoring and evaluation: AI systems are not infallible and may exhibit unintended consequences over time. Employers should implement mechanisms for ongoing monitoring and evaluation to detect and address ethical issues as they arise.
4. Ethics training for employees: Equip employees with the knowledge and skills to recognise ethical dilemmas associated with AI use. Training programs on AI ethics, privacy, and data security empower employees to make informed decisions and uphold ethical standards.
5. Engagement with stakeholders: Engage with employees, customers, regulators, and other stakeholders to solicit feedback and address concerns regarding AI implementation. Open dialogue promotes transparency and ensures that AI technologies align with societal values and expectations.

Conclusion

As Artificial Intelligence continues to shape the future of work and society, it’s imperative for employers to navigate its development and deployment with careful consideration for ethical and legal implications. By adhering to transparent practices, fostering diversity, and prioritising ethical training, employers can harness the transformative power of AI while mitigating its potential risks. In doing so, they pave the way for a future where AI serves as a force for positive change, benefitting individuals and communities alike.

Back in May 2023, BBC Worklife published an article which is well worth a read.

It’s that time of year when we consider forthcoming employment legislation changes from April 2024. Being aware of the changes ensures you can prepare for them and protect your business from any legal claims. Here’s a rundown of the changes.

Payroll costs – National Minimum Wage rates

Inflation continues to be a key issue for many employers who are facing pressure to increase wages.  Whilst there is no legal requirement to increase pay to address issues with high inflation rates, the National Minimum Wage/living rates are going up on 1 April 2024, therefore if your pay is based on minimum wage rates per hour, you will need to implement these changes:

Statutory pay rates – From April 2024

Family friendly leave

The rates of Statutory Maternity, Adoption, Paternity, Shared Parental and Parental Bereavement pay will increase to £184.03 per week.

Statutory Sick pay

The rate of Statutory Sick Pay will increase to £116.75 per week.

Statutory redundancy payments

With effect from 6th April 2023, the statutory redundancy pay cap will increase to £700 per week. It’s important to ensure you get up to date compensation information for anyone who leaves due to redundancy on or after this date. You will need to calculate their redundancy pay on the new rate.  If the redundant employee’s normal weekly rate is under the new figure, you should calculate their redundancy compensation based on their actual weekly pay rate.

Rolled-up holiday pay

With effect from the holiday year starting in April 2024 and thereafter, workers who work irregular or part year hours can have their holiday pay rolled in to their pay, rather than accruing actual holiday which has to be taken as leave.  The method of calculating the holiday pay will be 12.07%. Employers should note this only applies to those employees who work irregular or part-year hours. Other employees with set hours (either part or full-time) will accrue paid holiday which must be taken as paid time off.

Flexible Working Requests

With effect from 6th April 2024, employees will be able to make a flexible working request from day one of their employment, removing the current 26 weeks’ service requirement.  Employees will be able to make two requests a year (currently only one request is possible) and they will no longer be required to set out the likely effects on the business of the change.  Employers will be compelled to consult with the employee before rejecting a request and the time allowed for the whole process, including appeal, will be reduced from three to two months.

Statutory Carer’s Leave

Statutory Carer’s Leave will give carers a minimum of one week’s unpaid leave per year to care for a dependant with a long-term care needs, from day one of their employment.

This will be a day one right for employees and is flexible, however it’s likely advance notice will need to be provided, and it may be possible to postpone requests in a similar way to Unpaid Parental Leave.

This right will be in place from 6th April 2024.

Paternity Leave

An amendment to the entitlement for fathers and partners to take Paternity Leave has recently been proposed.  If approved fathers and partners will be able to take their Paternity Leave in two split weeks, should they wish, and the timeframe for taking the leave will be extended from 56 days after the birth, to 12 months after the birth, offering more flexibility to new parents.

This amendment will be effective for babies born or children adopted on or after 6th April 2024.

Redundancy Protection for Pregnancy and Family Leave

This protection extends the right to be redeployed during pregnancy (including if a miscarriage is suffered), maternity and family leave for 18 months after the start of that leave. These are important considerations during an employee’s family/maternity leave and in restructuring or redundancy exercises.  Employers who breach this protection will risk claims for unfair dismissal and sex discrimination (with uncapped compensation).

This new protection will be in place from April 2024.

Upcoming changes to be confirmed

2024 is potentially going to be another busy year for changes in employment law.  This is a summary of what may be in the pipeline when it comes to employment legislation changes from April 2024.  In some cases there are no firm dates for implementation however, it pays to be ahead of the changes and consider how they may affect you and your business in advance of the bills being passed in to law.

Employment Allocation of Tips Act

This ban will make it unlawful for employers to withhold tips from staff.  In addition, employers must also have a written policy related to tip allocation in place.  This will apply to tips, gratuities and service charges given during the previous month.

This is expected to be in place from July 2024.

Statutory Neonatal Care Leave

This statutory leave will allow parents whose babies need hospital neonatal care to take 12 weeks’ paid leave. This is in addition to their statutory maternity, shared parental or paternity leave. The right will:

• be available from day one of employment;
• apply to parents with babies who are admitted to hospital before they are 28 days old;
• apply to babies who need to stay in hospital for 7 days continuously or more.

This is expected to be in place from April 2025.

Right to request more predictable working patterns

Employees and workers (including agency and zero hours workers) will have the right to formally request a more stable working pattern.  In addition, this right will also be available to those on fixed-term contracts of less than a year.  This right will apply after 26 weeks of continuous employment.

Employers will only be able to refuse requests  if there is a legal reason for refusing the request.

This is expected to be in place ‘in due course’.

Proactive duty to prevent sexual harassment

This will require employers to have proactive measures in place to prevent sexual harassment in the workplace.  As a result employers will be legally responsible if no measures are in place.  And that responsibility applies, regardless of whether or not an incident has occurred. Failure to comply with this requirement could result in increased compensation of up to 25%.

This is expected to be in place from October 2024.

Pensions (Extension of Automatic Enrolment) Act 2023

This Act brings in changes to the Automatic Enrolment populations and employers who use Qualifying Earnings to calculate contributions:

• Lowering the age criteria for auto-enrolment from 22 to 18 years of age
• Removing the Lower Earnings Limit of £6,240 if you’re using qualifying earnings

There is no indication at this point when this change will come in to effect.

If you’re concerned about what these employment legislation changes from April 2024 mean for your business and need help reviewing your policies, please get in touch with Helpful HR.

The media has covered situations where individuals have been disciplined, or had offers of employment withdrawn, as a result of posts they put on social media.  This was because posts in question were deemed to be ‘unacceptable’ to their employer or potential employer.

But, the posts were made from personal accounts, so why did these organisations take this action?  Surely it’s none of their business what an individual posts on social media. Especially if the post was private or there was no mention of the organisation in their profile or the post?

When does it matter?

Even if a post is from a personal account, the key consideration is whether it can be linked to their employment.  Or if it could damage the organisation’s reputation.  This issue needs to be considered properly and fully before action is taken.  Of course a post by an employee or applicant may not put your organisation in a particularly positive light. But it’s important not to take a disproportionate view of the damage or potential damage to its reputation.  The facts should be considered carefully, including:

• The employee’s role and seniority
• The nature of the social media post
• Whether the damage to reputation is actual or potential and if it’s a genuine risk
• Whether the employee has received a previous warning for similar conduct
• Whether the employee expressed regret at their actions?
• Are there any other mitigating factors to consider?

Organisations should ensure clear information and training is given to employees about the importance of the corporate reputation and image. There should also be a clear policy about the organisation’s expectations about employees’ use of social media.  It’s also important to have clear policies on equality, diversity and inclusion and conduct training in this area.  That way the organisation can demonstrate the their stance in these areas, and therefore how the employee’s actions are a direct breach.  A clear disciplinary policy and procedure is also important, ensuring it includes the types of behaviour and conduct that will be regarded as serious, or gross misconduct.

Rights of the parties

Obviously, individuals have rights under the Human Rights Act 1998, and the GDPR Data Protection Act 2018, so monitoring social media needs to be done with care, to avoid breaching these rights.  It requires a very careful balancing act to make sure the rights of both parties are protected.  Not easy.

When it comes to monitoring social media, it’s always best to have a very clear policy about social media and data protection, privacy and monitoring.  Equally important is ensuring these policies are within the principle of fair, lawful and transparent processing of personal data.  Generally, the most usual grounds for monitoring this activity will be legitimate interests. But again, this needs to be balanced against the individual’s rights and freedoms.  If the social media account is private, and there was an expectation it would remain so, then potentially the individual’s rights would override the organisation’s legitimate interests in monitoring that activity.

The organisation would need to articulate the purpose of the monitoring. For example, if it were to prevent sexual harassment, or ‘hate speech’, this might provide a legitimate reason.  A stronger argument might be reputation protection of the business, and minimising vicarious liability for the acts of an individual.  If the individual doesn’t have a private account and states the name of their employer on their profile, a clear connection can be made. If the named organisation were seen to tolerate posts of a discriminatory nature the reputational damage would be difficult to deny.

How do you deal with it?

If an employee puts a post on social media that is contrary to their aim to eliminate discrimination and hate speech, or which detrimentally impacts the organisation’s reputation, it should be treated as any disciplinary would.  The disciplinary policy should be followed as with any disciplinary issue.  The investigation and consideration of all the facts and impact on the organisation should be thorough. Any investigation conducted should be undertaken by someone other than the employee’s manager, or the person who will make the ultimate disciplinary decision.  Any action you take must be done within the ACAS Code of Practice for disciplinary and grievances.  Regardless of the severity of the alleged offence, employers should not dismiss an employee without following a fair process.

If one of your employees has made social media posts of concern, and you’d like advice, get in touch.

The Covid-19 pandemic had an undeniable impact on everyone’s lives.  During that time, the requirement to work flexibly created a new landscape, which employers are still having to navigate.

For some employees, that switch to remote, flexible working appears to have resulted in the ‘always-on’ phenomenon. There’s no real boundary between work time and personal time. This means that employees can work around other personal commitments or activities, if they wish. However some people find it difficult to switch off, in some cases leading to a culture of presenteeism.

What is Presenteeism?

The CIPD states that presenteeism occurs when people work when in suboptimal health.  Your employees are attending work when they are unwell, and are therefore unable to be productive.  Absenteeism has a huge cost implication for employers.  But interestingly, the CIPD also reports that presenteeism has a much bigger cost (according to research by Deloitte).

Why is it a problem?

Unless addressed, presenteeism can lead to a culture where presence indicates commitment and success. I.e., if you turn up early and leave late you’re doing a great job, you will be more valued, and potentially rewarded accordingly.  What it doesn’t do is lead to an increase in productivity and it can cause a toxic culture. These things will drive away talent, further decreasing productivity.

There are also other effects, for example:

• Employees come to the workplace with contagious illnesses, which spread through the workforce, increasing absence and / or presenteeism.
• Employees won’t take the rest from work they need to recover, therefore stay unwell for longer, or their health deteriorates further.
• Employees working while unwell will understandably demonstrate less enthusiasm and motivation, leading to low morale. This low morale may be contagious within the workforce, even in your healthy employees.
• Depending on the sector, employees who are unwell are more likely to have workplace accidents, putting themselves and others at risk.
• Presenteeism means that employees aren’t giving their full commitment to their work, and therefore will not progress and develop, which may lead to further demotivation and disengagement.
• The quality of work produced is less likely to be as high as it might otherwise be, if the employee was healthy. This may have a knock-on effect on colleagues, for example causing frustration, or blockages and delays in systems and processes.

What can you do about it in your business?

Leaders need to be proactive in changing the narrative about the behaviours that are valued in their business. They need to move away from a ‘bums on seats’ approach (i.e. presenteeism), and instead focus on outputs and achievements. One of the first things they can do is lead by example. Create those work and home time boundaries. For example, only respond to emails during working hours, or as close as you can get (unless it’s business critical). Encourage employees to leave work, or if remote, switch off at the end of their contracted hours.

Tips to reduce presenteeism

• Find out why people are behaving this way, either through focus groups or an anonymous survey, and find out about their concerns around taking time off ill, and blurred work / home boundaries.
• Look at your sickness absence policy. Will employees suffer significantly financially every time they take a day off sick?  Do you have a fair sickness absence review policy which is consistent, reasonable and supportive?  And if you make changes to your policy, ensure these changes are communicated. Create clear messaging that supports taking time off if it’s needed, so people can fully recover and then return to work.
• Consider what you could do to promote a healthy working environment that supports mental and physical wellbeing.  For example discounted gym membership, walking meetings, cycle to work schemes, wellbeing apps, mental health first aiders and training for all employees.
• If you use zero hours contracts, consider if this is a factor. Review your resourcing model to establish if you could reduce these and create more stability for your workforce.
• Improve manager / staff communication, so that managers are familiar with their employees and have positive working relationships. Employees may then feel the can share any health concerns with confidence, and managers will spot warning signs of any health or wellness issues.

If you’ve noticed your employees seem to be working when they are clearly unwell, and you want to find out why, or need support to change those habits, get in touch.

In the workplace, managers and colleagues give feedback to others as part of their normal management and team practices.  Feedback should be constructive, and it’s a valuable process, aimed at improving skills, communication, relationships and success (individual and organisational).

In a study by Christine Porath[1], she found that higher levels of feedback were associated with 89% greater thriving at work, 63% more engagement and 79% higher job satisfaction.  She also found that giving honest, careful feedback and creating a ‘feedback loop’, (where team members provided feedback to each other), created stronger connections, and better relationships at work.  Adding recognition and / or reward in to the mix lead to employees becoming happier and more engaged.

The good and the bad

Provided the feedback is truly constructive, there’s no such thing as ‘bad’ feedback as all feedback of this nature will be valuable.

But if that feedback is not constructive, or not delivered in an appropriate way, I think we can probably call it ‘bad’ feedback, as it will often have the opposite effect of what is desired. i.e., it resulted in a disengaged, demotivated employee, and ultimately damage their success and potentially that of the team.

How to give good feedback

For many years there was a well-known saying linked to giving feedback which was referred to as the ‘**** sandwich’ i.e., say something nice, say something negative and then distract the person with something positive again. It seems this doesn’t work because the ‘negative’ points get lost, with people, understandably, clinging to the positive messages.

Here are our top tips for preparing and providing good quality feedback.

Preparation:

• Be clear what you’re providing feedback about and consider what you want the outcome to be
• Allocate enough time to the feedback session and make sure it’s in a confidential setting without interruptions
• Be factual, specific, kind and objective – describe behaviour / actions / outcomes, not personality, attitude or character
• Provide the context and describe what you noticed.  E.g., “I noticed that your reports have been submitted 2-3 days late on a couple of occasions lately”
• Outline the impact and why it’s a problem
• Write down the key points you want to get across.

The meeting:

• Present your prepared observations
• Be mindful of your body language and tone.  Keep it calm and respectful
• Ask for their perspective of your observations
• Encourage them to explore alternatives – ways to improve next time
• Present feedback as a positive opportunity, not a threat, and include a balance of feedback (i.e., if some things went well, say so)
• Listen actively, show empathy and demonstrate you’re listening – paraphrase and reflect what you’ve heard
• Acknowledge their feelings
• Reaffirm that your intention is to offer feedback to help them improve their performance, and help them progress, develop, grow in their role and the organisation.

Feedback should be given as close to an issue arising to ensure it’s relevant, and to demonstrate that it’s important.  Don’t wait for your next scheduled monthly or quarterly 1-1 to share the feedback.

If you need to give difficult feedback to an employee and you’re not sure how, get in touch.

[1] Mastering Community: The Surprising Ways Coming Together Moves us from Surviving to Thriving by Christine Porath 2022

What is unconscious bias?

Unconscious bias is a term which is commonly used in relation to equality, diversity and inclusion in the workplace.  In this blog post we try to demystify unconscious bias and explain what it really means.

Unconscious bias is an unconscious inclination or prejudice.  It can be referred to in the context of a ‘gut’ feeling, or instinct feeling people have. These feelings will be informed by experiences and influences during their lives.  There is usually no ill will, but it is nevertheless seen as an issue in workplaces.  This bias can influence business decisions, and can compromise an employer’s ability to be an inclusive and equal workplace.

From a legal perspective, the areas to be aware of are around certain criteria, which could be covered under the description of a ‘protected characteristic’ most commonly related to age, gender, race, religion/belief, disability, sexuality and marital/partnership status.

Unconscious bias around gender, for example is the way someone might assume that a pink clothing item is appropriate for a little girl, or that little boys play with trucks while girls will want a dolly to play with.  Or age bias might be that an older person is overqualified for a junior role they’ve applied for.

We’re all human, and our decisions are informed by our own experiences.  So if it’s just about being human, why is it a problem?

What’s the problem?

Put simply, not tackling unconscious bias, means that those experiences and influences informing our decisions will continue to harm certain groups or individuals, unchecked.  Being aware of our natural bias, means that we are more likely to look beyond the assumptions we may instinctively make about an individual or group, and prevent us from treating those people differently.   Ultimately if they are treated differently, or they suffer a detriment as a result, they may have a claim for (indirect or direct) discrimination.

Over time, employees who think they are treated differently due to unconscious bias, develop feelings of isolation and alienation, and feel uncomfortable being themselves. This would take its toll on anyone, and may also affect the organisation’s performance overall.  Employees who experience bias and prejudice often actively disengage and reduce their contributions, and ultimately seek a role elsewhere.

What are the benefits of tackling unconscious bias?

Equality, diversity and inclusion (EDI) is seen as an increasingly important part of what a business has to offer.  To be an inclusive employer means that employees feel welcome, valued and included. This in turn means team members will stay longer and be more engaged and productive.

Diversity in the workplace is a serious competitive advantage with immediate and tangible benefits. It ensures a variety of different perspectives and a variety of different skills and experiences.  It gives organisations access to a greater range of talent, potentially increasing creativity and innovation.

The best way to overcome unconscious bias, is to ensure people become more self-aware (and self-critical) about their decisions and behaviours.  This can be done via training in a variety of formats. Alternatively, you could develop some supporting systems and processes, to ensure decision makers at all levels are challenged in a safe setting.

You can find out more about the benefits of tackling unconscious bias and what approach works here.  And if you’d like some advice about EDI issues in your business, please do get in touch.

Mental Health Awareness week in the UK is an initiative introduced by the Mental Health Foundation.  In 2023, Mental Health Awareness week is from 15-21^st May and the theme this year is Anxiety.

Anxiety can affect people both physically and mentally. People may experience different symptoms, including increased heart rate, headaches and chest pains.  It can cause people to feel tense or nervous, making it hard to relax and detrimentally affect sleep and concentration.

Mental health is something everyone has, like physical health, and they are connected – you will have noticed physical symptoms of anxiety described above.  Equally, those experiencing physical health problems can experience declining mental health as a result.

Mental health at work

Your employees’ mental health problems have a big potential impact at work, for example:

• Increased absence from work
• Lack of concentration leading to reduced productivity
• Increased accidents at work due to lack of attention
• Increased attrition rates
• Poor morale and low-esteem in the workforce

It is estimated that cost to employers of poor mental health at work cost £56 billion per year [1], consisting of:

• absenteeism cost: £6.1 billion
• presenteeism cost: £24.8-£27.6 billion
• staff turnover cost £22.4 billion

So, if you consider the cost, investing in ways to support good mental health at work seems to be a ‘no-brainer’.

Promoting good mental health at work

Businesses can take small steps to support their employees’ mental health. Here are some ideas:

1. Talk to people in your team and get to know them, so you can notice any changes in their behaviour and demeanour.
2. In your regular 1-1s with your team, ask them how they’re feeling, if they have any worries or concerns, and respond constructively. Normalise that kind of conversation.
3. Encourage your staff to ‘switch off’ out of work, especially when it comes to accessing and responding to emails outside of working hours.
4. When addressing issues with your staff, make sure you deliver difficult messages in a kind and supportive way.
5. Consider introducing an Employee Assistance Programme which offers a confidential counselling support service.
6. If you operate as a remote business, think about introducing more face-to-face interactions with your team, or alternatively review the frequency of video / phone calls.
7. Encourage employees to take physical exercise, whether lunchtime walking or yoga, walking meetings, sponsored challenges, subsidised gym membership, volunteering days or competitive ‘step challenges’ between teams.
8. Introduce a ‘buddy’ system, where a colleague is allocated to an employee as an additional support. This provides another way for them to flag concerns.
9. Train some employees as Mental Health First Aiders, and provide regular training about mental health to all employees and managers.
10. Ensure your managers are meeting their team members regularly and providing feedback to them, not just via an annual appraisal system.

Mental Health problems affect one in four people in any given year [2] so if you have a team of 12 people, 3 of them may be struggling.  If those three employees are absent as a result, then that could have a big impact on your business.

If you would like help with supporting the mental health of your employees, get in touch here.

References:

1 – Source: Deloitte | March 2022

2 – Source: Mind.org.uk