Archive
Month: September 2023
New law – right to request more predictable working patterns
New legislation is going to come into force (expected September 2024) introducing a new right for workers to request more predictable working patterns, such as the hours or days they’re required to work.
Particularly important if you have any zero-hours contracts, the new right introduced by The Workers (Predictable Terms and Conditions) Act 2023 will apply to:
- Workers whose existing working patterns lack certainty in terms of the hours or times they work;
- Workers on fixed-term contracts of 12 months or less (who are able to request a longer fixed-term period); and
- Agency workers (who can make a request to the agency or the hirer).
Here’s what we know so far about how the new right will work in practice:
Length of service – workers will need 26 weeks’ service before making a request (these will not need to be continuous).
How many requests – workers can make up to two requests each year.
What should a request look like – any request must be specific as to the change being applied for (hours of work, days of work, period of engagement, for example) and the date the change should take effect.
Dealing with requests – you will need to deal with any requests in a reasonable manner (yet to be defined) and notify the worker of your decision within one month.
Refusing requests – there are currently six specific grounds for refusing a request listed in the Act (such as the burden of additional costs). More may be added.
Accepting a request – you must offer the new terms within two weeks of granting the request. You must not make any detrimental changes to other terms at the same time as making the required changes arising from the request.
Consequences of getting it wrong – we’ll need to wait for the regulations for concrete detail, but we can assume that breaching the new requirements could give rise to compensation, likely up to eight weeks’ pay, if a claim is brought at tribunal (along with all the associated legal and reputational costs). We’ll cover this in more detail in our following updates.
This update is accurate on the date it was published, but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.
Kissing colleagues…
…might obviously be inappropriate. But have you ever experienced any of the following at work?
- female colleagues being asked how they deal with juggling work and family
- female colleagues left to do the tidying up after meetings
- calling females ‘guys’ when you’re addressing a group
Even if most employees consider these are OK, maybe there’ll be one that says they’ve been subjected to discrimination and/or harassment. And with each of the above, they have a point. Times change. Laws move on. People expect more. People know more.
Our view is that if a concern is raised, an expedient, thorough, and balanced investigation is essential. Then, where liability is established, action must be taken swiftly – both legally and culturally. Learnings must embrace change and include effective policies which are trained upon.
Discrimination in whatever form creates division, poor performance, sadness, and inequality. Clearly, recent press has highlighted that these (and more) are very real experiences within the workplace. Get in touch to talk about any employment law support you might need.
This update is accurate on the date it was published, but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.
Redundancy – suitable alternative employment
Once you’ve confirmed there’s no other option but to make the individual’s role redundant, the next step is to consider suitable alternative roles that you have available. Here’s what you need to know…
Compare and contrast – the suitability of a role is determined by comparing the individual’s current ‘at risk’ role with the role available. Salary, place of work, skills required and aptitude for the role are all factors you can use to determine whether the available role is a suitable alternative.
Be specific – it’s not good enough just to give the employee a list of available roles – you need to search out the roles that could be suitable alternatives.
Bigger picture – if you’re part of a group of companies, your search for suitable alternatives should be group-wide.
First in line – if the ‘at risk’ individual is on maternity leave, they must be offered the suitable alternative role ahead of any other individual who might also be suitable for the role. Also, watch out for new legislation that extends this right.
This update is accurate on the date it was published, but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.
Tribunal awards £65,000 for failure to make adjustments for menopause
A tribunal has ordered Direct Line to pay almost £65,000 in compensation after failing to make reasonable adjustments for an employee affected by menopause symptoms. Here’s what you need to know.
Background
The employee’s menopause symptoms meant she began to struggle to meet usual performance standards. She accepted an offer to move to another role (at a lower salary) but again struggled with performance, with ‘confidence issues’ being cited. She was threatened with disciplinary action if her performance didn’t improve.
An occupational health report advised that her symptoms probably amounted to a disability and suggested eight reasonable adjustments to support her. Despite this, her employer issued her with a first-stage warning with a “success plan” and failed to make the adjustments suggested. She resigned and brought a claim for failure to make reasonable adjustments and disability discrimination. The tribunal agreed and awarded £23,000 for injury to feelings, £2,500 for aggravated damages, and over £30,000 for loss of past and future earnings (plus interest).
Practical takeaways
Policy – introducing a menopause policy will help to build a more open culture of understanding to support those affected. It will also help guide situations like this and ensure those involved are clear about their responsibilities.
Training – a great policy often fails without training. Did you know 77% of businesses don’t train their line managers about menopause? Training colleagues helps them to approach conversations with confidence and ensure they are respectful of the law and the individual’s needs.
Understanding – every individual is different. Securing expert support (an occupational health report in this case but other options are available) means you’re equipping yourselves with the tools to deal with the situation appropriately.
Actions – it’s no good having a great policy, delivering training, taking expert views and then ignoring it all. You need to show you’re respectful of your own policies, follow the training you’ve given, embraced expert opinion and then delivered a course of action in line with legal and business requirements.
Advice – early advice means legal and cultural goals can be achieved and avoids ‘unpicking’ legal breaches (if possible).
Haven’t yet introduced a menopause policy? We’ve got one ready for you on our Intelligent Employment platform – click here.
This update is accurate on the date it was published, but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.
Fair redundancy selection criteria
Once you have your pool of employees at risk of redundancy, you’ll need to decide your criteria for selecting which employee(s) remain at risk.
Fairness, objectivity, and consistency are the backbone of a lawful selection process. Here’s what you need to know:
Objective, measurable selection criteria – if not, it’s likely to result in an unfair dismissal. Ensure that you consult on the selection criteria that you’d like to use so that each individual has the opportunity to have their say before scoring starts. Click here for our suggested selection criteria.
Avoid discriminatory selection criteria – if it’s based on length of service, absence or flexibility, it could be considered discriminatory based on age, disability or sex respectively. Ensure that you make adjustments so that the criteria do not prejudice those with protected characteristics, or avoid using them entirely.
Fair scoring – ensure that your selection criteria feature on a scoring matrix with clear parameters. Ideally, ensure that any score is justified with evidence as to why it has been awarded.
Verification of manager scores – ensure a manager with the ability to find evidence or measure the individual against the selection criteria carries out the initial scoring. Get another manager to verify their scores (preferably one with knowledge of the employee).
Consult about scores – individuals have the right to know their scores, as well as being given evidence supporting the scores and the breakpoint they had to achieve to avoid redundancy. They can challenge their scores, possibly resulting in re-scoring if there is merit to their objections.