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.

In April 2020, it became a requirement for all employees to receive a ‘Written Statement of Employment Particulars’. This is a document which needs to be provided on or before their start date with their employer.  In addition, employees who joined their employer before 6^th April 2020 can ask for a Written Statement at any time. On receipt of a request, employers must provide it to the employee within one month of their request.

The legal requirement

With this change it became a requirement that the Written Statement included certain terms and conditions. It is no longer sufficient to rely on a basic offer letter confirming job title, salary and start date.  The terms and conditions that must be included in a written statement are as follows:

• the employer’s name
• the employee or worker’s name
• the start date
• the date that ‘continuous employment’ started
• job title, or a brief description of the job
• the employer’s address
• the normal places or addresses of work
• pay, including how often and when
• working hours and days, or if it’s variable
• holiday entitlement, including an explanation of how its calculated if the employee or worker leaves the employer
• the amount of sick leave and pay applicable
• any other paid leave
• any contractual benefits
• any non-contractual benefits
• the notice period either side must give when employment ends
• how long a temporary job will last
• any probation period, including its conditions and how long it is
• if the employee will work abroad, and any terms that apply
• what training that must be completed by the employee or worker, including training the employer does not pay for

As an employer, you need to have all these terms detailed in Written Statements you issue to new joiners. You need to quickly define your current practices and policies.  That way you will be ready for requests for a written statement from existing employees who started prior to 6^th April 2020, as well as new hires.

In addition, the law allows for other terms to be provided at a later date, within 2 months of the employee starting. These other terms relate to pension arrangements, collective agreements, non-compulsory training (if provided), and disciplinary rules.

Benefits of providing a Written Statement

As well as the legal requirement to provide details of these specific terms of employment, there are benefits for both parties in having these points clearly written down.  Both parties will know and understand what to expect from the other, and what their obligations are.  This avoids ambiguity and inconsistency, which helps to prevent unnecessary problems or employment issues.  Doing this may also prevent potential allegations of discrimination if employees are treated differently (whether inadvertently or not).  Employees will feel secure in their relationship with their employer, which is more likely to develop trust and loyalty.

If you fail to provide the relevant documentation to your employees within the timelines specified by law, the potential penalty would be between two and four weeks’ pay.

Benefits of a Contract of Employment

The requirement under law is for a Written Statement of Employment Particulars, as detailed above, however many employers opt for a full contract of employment for their employees.  This is because in a full employment contract you can include terms which protect the business interests, for example clauses around confidentiality, post-termination restrictions, intellectual property and conflict of interests.  Having everything included in one comprehensive document also reduces administration time for the business, and provides clarity for the employee.

It’s important that employers are on the front foot when it comes to providing employees with details of their terms and conditions of employment as there are clear timelines to meet and clear advantages to providing this information.

If you would like to ensure that you’re protecting your business interests, and are meeting your legal requirements to provide employees with details of their terms of their employment, get in touch.

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.

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

As an employer it’s important to know of any forthcoming employment law changes. 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 taking effect from April 2020.

Introducing parental bereavement leave

An Act passed in 2018 has resulted in the introduction of parental bereavement leave to provide support for bereaved parents. The leave will be available to parents who lose a child under 18, or suffer a still-birth in the later stages of pregnancy.

What is it?

Employees will be entitled to 2 weeks leave, and employees with 26-weeks continuous service will also be entitled to pay at the statutory rate. This leave is separate from the statutory right to unpaid time-off in an emergency, and compassionate leave which is discretionary.

Action to take

Employers should take the following steps, prior to April 2020:

• review your current leave policies and decide if you will follow or exceed the minimum requirements of this legislation;
• review and update policies and handbook to include this entitlement, as well as any other policies which may benefit from this information (for example, any family friendly policies);
• consider if you need to review and update other content in your handbook, and
• review and update your contracts of employment, so they are fit for purpose.

More information

Changes to written statements of particulars of employment

The current law states that written statements must be issued by employers to their employees within 2 months of their start date.  The new law will require employers to give all workers (not just employees) a written statement on or before their start date. In addition the written statements must include:

• the hours and days of the week the worker /employee is required to work, if they are varied and how;
• any details of a probationary period;
• their entitlements to paid leave;
• any details of training provided by the employer and
• other benefits not covered elsewhere in the written statement.

Action to take

Employers should take the following steps, prior to April 2020:

• be aware of exactly what needs to be included in the written statement;
• know about any other information which needs to be provided to employees in writing;
• ensure you have a template statement / contract of employment which is ready to use, should you need to make a new hire and
• review your current written statement / contract of employment to ensure it complies with the new requirements.

More information

Increase in the holiday pay reference period from 12 weeks to 52 weeks

The reference period for calculating holiday pay for workers with irregular hours will change. Employers will need to look back over the past 52 weeks for the purposes of calculating holiday pay.

IR35 changes for the private and public sector

The public sector IR35 reforms will be extended to cover medium and large private-sector employers. This means that responsibility for determining if IR35 applies to independent contractors will shift to the organisation, not the individual. Employers should review whether they fall in to the category ‘medium’ or ‘large’ employer and then review their contractors and pay arrangements to determine how the new rules will affect them.

More information

If you’re concerned about what these employment law changes mean for your business and need help in preparing for them, please get in touch with Helpful HR.

Rudeness at work seems to be on the rise. In a survey by Professors Porath and Pearson, 40% of respondents said they had ‘no time to be nice’ and 25% said they were rude because their bosses behaved that way. We live in a busy world and people have many demands on their time. That’s not news, but in the words of Harry Hart (quoting William Horman) in Kingsman: The Secret Service, “manners maketh man”. Something has obviously gone wrong. Is politeness a thing of the past?

What’s the impact of rudeness?

There’s a great opportunity for business leaders and senior managers to have a positive impact on this issue, and ensure everyone in their business is treated respectfully as a result. 48% of employees on the receiving end of rudeness intentionally decreased their work effort and 47% intentionally decreased the quality of their work. Rudeness at work causes commitment to decline, turnover to increase, productivity to plummet and recruitment costs to increase. By creating a polite and respectful workplace, commitment and productivity will increase and your turnover and recruitment costs will decrease, because you’ll be able to attract and retain the best talent.

What can you do?

Small changes can make a big difference, so here are our top tips for creating a respectful workplace.

• Be friendly, greet people warmly, say ‘thank you’ and ‘you’re welcome’.
• Give 100% of your attention in meetings. Put your phone down and engage in the matter at hand. The meeting will probably be shorter and more focussed as a result.
• Listen to your team members’ thoughts and ideas – they may be on to something.
• Make it clear that rudeness won’t be tolerated and there are no excuses for it. If you make politeness part of day to day interactions, it will be contagious, so the impact could be huge.
• If you see rudeness, address it directly, and encourage employees to report any incidents to their line manager.
• Establish a staff forum where employees can share concerns with a nominated senior team member and discuss how the concerns could be addressed.
• Hire and retain employees who exhibit the ‘right’ behaviours.
• Lead by example, regardless of who you’re talking to and your own stress levels.
• Carry out exit interviews to find out what employees really think.
• Train and coach line managers in respectful people management practices.

If you’re concerned about behaviours in your company and want to discuss ideas on how to address it, get in touch.