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 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.

As a small business you might ask ‘why do I need HR?’ if you have a small headcount and everything seems to be going well.  An HR Consultant is often engaged to support and advise when there are employee related issues or problems. That might be a situation involving redundancy, a disciplinary, grievance or dismissal.  Of course, ensuring that these situations are dealt with correctly is very important.  We do our job, help you to resolve the issue and that’s that.  All good.  But there IS more to HR than troubleshooting of this kind, and it’s important even (or I would argue especially) for small businesses. The way your people are managed will have a direct impact on their success, and by implication the the success of your business.  In a small business where the headcount is under 50, each employee has a greater proportional impact on the working environment, the team, the success of the business and how well it functions.

What do I need to know about HR?

The Chartered Institute for Personnel and Development (CIPD), states that Human Resources Management (HRM) is:

“…the function within an organisation that focuses on the recruitment, management, and direction of the people who work in the organisation. HRM can also be performed by line managers.”

There are multiple stages in an employment relationship, some of which are included in the definition above.  If we look at this in more detail, the stages are:

Employees experience these activities during their journey with you, their employer. But you won’t positively impact the success of your people and your business without considering the ‘how’ in each of these areas. Let’s look at each stage in more detail:

Attraction

What skills, knowledge and experience do you need, and how will you attract these people in a competitive recruitment market?

Recruitment

What are your recruitment methods, and do they successfully identify if the candidates have the skills, knowledge and experience you need?  How many of your new starters leave before they finish their probationary period with you?

Onboarding

How can you ensure effective onboarding of someone into their job and the company, enabling them to become productive quickly and begin making a positive impact on your business?

Development

How do you develop your onboarded employees? What development and progression can you provide so that your people become better and better at their jobs and become the experts, managers or leaders of the future?  Or do people leave to get that development and progression?

Retention

How do you treat your employees while they’re with you? What can you offer them that will keep them loyal and engaged?  Or might they always be on the lookout for the next opportunity elsewhere?  How do you make sure you keep all the knowledge, skill and experience you have supported and developed from walking out of the door, reducing your ROI, and increasing your costs?

Separation

How do you treat leavers? Does that change depending on whether they’re a voluntary or involuntary leaver? What do your current employee population observe when others leave, and does that process feel dignified, respectful and make them feel glad they still work there?  Could your leavers be employees of the future, once they’ve gained other experiences, and would they want to return to you?

And the cycle continues…..

What should I do?

In short, the first stage would be to look at what you currently do.  Ask yourself and selected others 5(ish!) key questions:

1. Are your people processes efficient and effective for the business and your people?
2. What kinds of experiences do your employees have at the various stages of the employee lifecycle?
3. What kinds of behaviours do you value? Do you see these demonstrated by your managers and employees consistently in their interactions with each other?
4. What kind of employer do you want to be?  How does that link in with your brand marketing and PR?
5. How high is your employee turnover? How successful are your attempts to recruit new talent?

This is just the start of the process, and it will lead to further conversations and questions, no doubt.  Maybe this next year is the year you start to take a strategic approach to your people management practices?

If you’re asking yourself “Why do I need HR?” and you’d like more information, or if you would like support to look at any or all of these areas to make your business even more successful, 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

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

The topic of bullying at work was in the mainstream media in April 2023 after the resignation of the then deputy prime minister, Dominic Raab after an investigation in to claims of bullying made against him; especially after his underwhelming acceptance of the allegations against him, famously stating that “in setting the threshold for bullying so low, this inquiry has set a dangerous precedent” in his resignation letter.

Dominic Saab’s resignation came less than two years after Priti Patel (then Home Secretary) was accused of bullying and was found to have been in breach of the ministerial code.

What is Bullying?

When it comes to dealing with bullying at work, as a business you need to identify or define what ‘bullying’ is, so you can ensure your employees have a clear understanding of what it actually means.

In guidance from ACAS they say that there is no legal definition of ‘bullying’ but it is described as unwanted behaviour from a person or group that is either:

• Offensive, intimidating, malicious or insulting
• An abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone.

This behaviour could be a pattern or a one off, face to face, on social media, emails, phonecalls, outside of work or in work, and it can go unnoticed by others. It could be among peers, or in a senior/junior relationship (and despite what you might think, a senior person can be bullied by a junior person).

The union Unison also has some clear guidelines and defines bullying as persistant offensive, intimidating, humiliating behaviour, which attempts to undermine an individual or a group of employees.

Likewise Indeed.com has some advice about bullying, describing a workplace bully as someone who repeatedly harms or mistreats employees by causing them pain or engaging in other forms of physical or verbal harassment.

Legal firms often describe bullying as offensive, intimidating, malicious, insulting or humiliating behaviour, or an abuse of power or authority which attempts to undermine an individual or group of employees, and which may cause them to suffer work-related stress.

There is no shortage of information about what bullying may involve, leaving organisations with no room to claim ignorance on the subject.

Examples of bullying

Bullying takes different forms, so to illustrate the breadth of possibilities, it’s helpful to outline some examples to bring the topic to life.  Examples could include:

• Setting someone up to fail / setting impossible targets
• Spreading malicious rumours about someone
• Making humiliating comments about someone online
• Undermining someone’s authority
• Undermining someone’s competence with constant criticism
• Ridiculing someone openly, by blaming or criticising them in front of others
• Making threats about the security of someone’s employment if they exercise a right, or make a reasonable request

At work, it’s unlikely the bullying will take a physical form, and it will be more verbal and emotionally challenging behaviour.

Reality

If someone expresses upset about another person’s behaviour towards them does that automatically make them a bully?  Unfortunately, there are shades of grey when it comes to this issue.  The investigation into a complaint will be key in identifying if it was a reasonable response to someone’s behaviour.

If a someone says, “Your shoes are an interesting colour!” and the recipient of the comment states they are offended or feel belittled, does that mean they’re being bullied?  The question is whether it was reasonable to expect someone to be offended or feel belittled by a comment.

However, if someone says, “Come on, old man, do you need a sit-down?!” even as a joke, the question of whether it was reasonable to be offended by that comment may be easier to answer.  But it’s rarely that easy, so the investigation into the behaviour and the context needs to be done with an open mind, and with the definition of bullying and the relevant complaints procedure front and centre.

Direct financial risks to your business

The most obvious risk employers will be concerned about is the risk of a legal claim.  So what does that actually mean, and what is the risk?

Under the Equality Act 2010, if the bullying is due to a ‘protected characteristic’ then it is classed as harassment.  Protected characteristics are:

• Age
• Disability
• Gender reassignment
• Race
• Religion or belief
• Sex
• Sexual orientation
• Pregnancy (also covered under direct discrimination legislation)

Any harassment claim at an employment tribunal under the Equality Act 2010 has an uncapped potential award. This means it’s difficult to quantify the potential financial risk, but the cost of defending a claim will be substantial (by current estimates, upwards of £15k), without including the compensation the Tribunal panel may award, if the claim is successful.

The other risk of a bullying claim is for constructive dismissal (Unfair Dismissal). This would arise if the employee feels the bullying is so bad they have no option but to leave.  Awards for Unfair Dismissal are capped at around a year’s salary, or c.£90k, so still represents significant financial risk.

Indirect financial risks to your business

The impact of having a workplace which tolerates (or fails to address) bullying could be serious.  Your workforce will operate in a state of fear,  afraid to make mistakes or put forward new ideas.  This does not engender creativity or engagement at work, both of which will affect your productivity.

Your attrition rates will increase as employees leave what they feel is a ‘toxic’ culture. As a result your recruitment costs will go up, and you will lose talent.

In addition, do not underestimate the power of reputational damage.  Social media platforms provide an opportunity for unhappy employees to share their experiences. With the advent of websites like Glassdoor, employers who fail to deal with bullying will quickly be exposed, making it even harder to attract and retain talent. It may also affect the success of the business. Potential customers may choose a competitor due to the reputation you have as an employer, directly hitting your bottom line.

Practicalities of dealing with it

The first thing to do is make sure you have an anti-bullying and harassment policy place. You should ensure it’s shared with all your workers, and that it is followed. This is a communication and training piece, AND a leadership one.  Leaders must lead by example, otherwise the policy ‘isn’t worth the paper it’s written on’ (to coin a phrase).

Best practice is for employers to create an inclusive culture.  Peter Cheese, CEO of the CIPD states workplaces should have a “safe culture where people can speak up, where differences are respected and celebrated.” Research by the CIPD shows that employees are looking for an inclusive and supportive culture.

As well as having a policy and communicating it to everyone, leaders and managers need to ‘walk the walk’. Managers need training to recognise bullying, encourage people to flag concerns to them, and ensure they investigate and address it.  There should be a consistent approach, therefore following policy and procedure is key.  The investigation must have integrity and confidentiality so any subsequent decisions are fair and reasonable, and are seen as such.

Dealing with bullying is never easy, undoubtedly, but it needs to be done reduce risk to your business. If you have concerns about culture in your business and you don’t know where to start, get in touch here.

Absence of more than 4 weeks is often defined as long-term sickness absence. In some cases an employee’s absence can continue month after month.  But how do employers manage this absence in a positive and pro-active way that benefits the business and the employee?

Here are 5 tips for managing long-term sickness absence:

1. Make sure you have a sickness absence policy.  Any policy you have should include: absence notification requirements; sick pay applicable and what the qualifying criteria is; expectations regarding contact with the employee during sickness; an absence review process and how long-term absence will be dealt with.
2. Introduce an Ill Health Capability procedure. This will enable you to manage an employee’s long-term absence through a fair and transparent process.
3. Maintain regular communication with the employee.  Contrary to popular belief it is rarely appropriate to cease contact with an employee while they are off sick.  Limit this contact to business updates and enquiries regarding the employee’s health.  You should put no pressure on the employee to return or deal with work during their absence.  A supportive and empathetic approach should be taken, focussed on their wellbeing and what you can do to support them. This will support their ongoing engagement with the business and hopefully a productive return to work.
4. Consider the steps you need to take to support the remainder of the team during the employee’s absence.  This will reduce any potential resentment about additional workload. The danger is that resentment builds and is directed at the absent employee, making their return to work difficult. Carry out regular check-ins with the team to enable you to address any issues they share.
5.  Ensure you follow the policies you have in place correctly.  Put milestone dates in the diary to prompt actions under the policies and procedures to ensure you stay on track. For example: the date the current fit note expires; next planned contact date and why; when Company and Statutory sick pay expires, and the stages of the Ill Health Capability procedure.

Although every situation is different, you will be best placed for success if you have these basics in place.   The worst-case scenario is that you get it wrong and receive an employment tribunal claim against you alleging disability discrimination.  In addition to this, the employee may be disengaged even if they do return, therefore they are unlikely to be productive.  The alternative is that they ‘disappear into the ether’, making it difficult to resolve the situation one way or another.

Helpful HR can support you if you have an employee absent from work due to long-term sickness, so get in touch and we can get you on track and limit the risk of a costly employment tribunal claim.

Many companies have furloughed employees due to the significant impact of the coronavirus. We’re not going to attempt to advise on the Coronavirus Job Retention Scheme for the purposes of this blog, but if you do need support on this click here, for information provided by the government. Instead this blog post is about supporting through furlough with regular communication.

Why?

While your employees are furloughed you need to consider how you can keep them engaged with the business. There’s a danger of them being out of sight and out of mind. If this is how they feel, it will undermine your relationship with them. Any lack of proactivity in communicating with your furloughed employees could have a detrimental impact when they return to work.  Negative feelings about how they were treated during furlough could translate into a lack of motivation and productivity. Good levels of productivity when your employees return to work will undoubtedly be essential in keeping the business going, so anything you can do now to keep them engaged can only be a good thing.

How?

For small businesses with a handful of furloughed employees it may be easier to stay in touch on a 1-1 basis. A regular individual phone / video call or email may suffice and be manageable. If you’re a larger employer with more than 10 furloughed employees it may be more challenging. It might take a whole day to call or email each employee individually. Employee communication is important and individual contact will be appreciated, but currently that might not be the best use of your time. You will need to ensure you spend time on the operational aspects of the business and adapting to the industry landscape. Employee communication should not be to the detriment of the business. If time is an issue, this individual communication is likely to happen less frequently, and that may leave your furloughed employees feeling forgotten and disengaged.

Top tips for keeping in touch

If you do have a larger number of furloughed employees, here are some ideas for communicating with your furloughed employees:

• Weekly update emails, outlining what’s happening in the business commercially. In addition you could communicate any further changes that have occurred as a result of coronavirus. You will also want to remind employees that if they have concerns they can contact you directly.
• Regular Zoom meetings for teams to help them feel connected. No work should be done during these meetings, but there’s no reason why you can’t enable colleagues to catch-up.
• Create a WhatsApp group which is available for everyone to engage in.  It can be used for chat and also for sharing any business information.
• Create a Facebook group for employees. It can be a group for all employees, so that furloughed employees can engage with working employees.
• Set up some online training sessions for furloughed employees which will enable them to keep their skills up-to-date.
• Create a wellbeing communication channel. This should be separate to the business updates. You could send out emails with useful links, or create a Facebook page so employees can share resources to keep them healthy in body and mind during furlough.

These are just a few examples of what you can do. Whatever you decide to do, it’s important to monitor what your employees are saying so if there are any posts or messages of concern, you can address them proactively.

If you need any support in supporting through furlough, please do get in touch

Coming soon: More on managing through COVID-19