Category: Employment Law

Changes to the current apprenticeship system

The government has recently announced an overhaul of the UK’s apprenticeship system.

A new growth and skills levy will replace the existing apprenticeship levy, and this will also include a new foundation apprenticeship.  The government says that these new apprenticeships will give young people a route into careers in critical sectors, enabling them to earn a wage whilst developing vital skills.

The new levy will also allow funding for shorter apprenticeships giving learners more flexibility- currently an apprenticeship must run for at least 12 months.

The training available for funding under the new levy will develop over time and The Department for Education will expand further on the offer for funding and how it will be accessed in due course.

Employers are being asked to rebalance their apprenticeship funding with priority in investing in younger workers. Businesses will also be asked to fund more of their level 7 apprenticeships themselves. The level 7 apprenticeships focus more on older leaners and those already qualified in certain areas.

In July the government launched Skills England in July to identify skills needs. This new body for the skills system had its first report on the 24th of September, which highlighted the need for change.  It found that employer investment in training has been steadily declining in the last decade and that almost 1 in 10, or 2.5 million roles, are in critical demand in the UK. More than 90% of these are in roles that require training or education. Going forward, Skills England will play a crucial role in determining which types of training will be eligible for the expanded growth and skills levy and will shortly set out how they will work with stakeholders to inform their advice to the Department for Education.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

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What employment law changes can we expect from the new Labour government?

The new Employment Rights Bill introduced by the Labour Party, as part of the recent King’s Speech, proclaims a significant shift in employment law.

Here is a summary of some of the key changes to be aware of:

Dismissals and outsourcing

  • Day one right not to be unfairly dismissed.

The Employment Rights Bill will give individuals the right not to be unfairly dismissed from their first day of employment. This marks a departure from the previous requirement, which requires two years of service for employees to qualify for protection against unfair dismissal meaning that the regular under two-year short service dismissals normally performed in these circumstances, would be no more.

Employees will benefit from immediate protection against unfair dismissal. This likely means that, employers, must have a fair and transparent reason for terminating employment, even within the probationary period. The legislation should ensure that employees are not dismissed without good cause, which aims to promote job security and fairness. It has been indicated that there will be exceptions for agency and seasonal workers.

It’s anticipated that the new law will still allow for probationary periods; however, the policy details suggest these periods will be governed by fair and transparent rules. If this proves to be the case you will need to follow a fair process, including providing reasons for dismissal and giving employees the opportunity to improve or respond to any concerns.

Whilst this change is seemingly good for employees, details remain unclear, but it appears this change is likely to increase the process around probationary periods and dismissal of new hires. It may make employers become more cautious about recruitment plans, and for them to place more rigour and time completing continuous assessment of new hires during the first few months of their employment.

Going forward, there will likely need to be more formal monitoring and feedback sessions during an employee’s probationary period, and these should be properly documented. Management will need to be focussed on areas of underperformance and conduct issues and not shy away from these matters, to ensure that any later decision to dismiss can be properly justified.

In the longer term, terminations are likely to be more expensive, and so we would expect that the number of tribunal claims will likely increase in this area.

  • Restrictions on ‘fire and rehire’.

The practice of ‘fire and rehire’ is when you terminate an employee’s contract of employment before re-engaging them on different, often worse, terms and conditions.  It is anticipated that the new legislation will seek to impose stringent controls on dismissal and re-engagement practices. Dismissing and offering to re-engage workers on new terms or replacing existing workers with new workers engaged on new terms, will only be allowed as part of a restructuring for a business to remain viable and preserve its workforce when there’s genuinely no alternative.

Labour has pledged to provide effective legal remedies for workers affected by fire and rehire practices. While the specifics are yet to be detailed, the emphasis will be on ensuring that workers have access to justice and that employers who engage in such practices face significant penalties. This move is expected to deter employers from using fire and rehire as a tool for restructuring.

Labour has said the new code of practice on ‘fire and rehire’ (which came into force on 18 July 2024) is ‘inadequate’ and will be replaced with a strengthened version. Further details are unknown, but the proposals would require employers to have more than a ‘substantial reason’ for changing terms (as is currently required).  This new code will apparently set higher standards for employer conduct and again ensure greater employee protection.

The ultimate goal is to foster a collaborative approach in this area and ensure employees are treated fairly throughout the process.  The measure aims to ensure that such extreme steps of fire and rehire are only taken when absolutely necessary and not used as a cost-cutting exercise at the expense of employee rights.

  • Thresholds for redundancy consultation.

Under the current law, the requirement for collective redundancy consultation is triggered when a certain number of employees are affected within a single establishment. An ‘establishment’ is usually a place of work or location.

Labour has said it will change the law so that collective consultation requirements will be triggered if redundancies reach a defined threshold across the business as a whole rather than just, looking at numbers within each site/workplace. This was not, however, mentioned in the King’s Speech. This change would bring the UK more in line with many EU countries. Labour has not said whether it will also amend the number of redundancies that would trigger collective consultation requirements (currently 20 within a period of 90 days).

Again, this legislative change will provide greater employee protection by ensuring that more redundancy scenarios trigger a collective consultation process and there will also be improved communication and transparency regarding redundancy plans as collective consultation processes require you to inform and consult with employees’ representatives about the reasons for redundancies, the number and types of employees affected, and the proposed method of selecting employees for redundancy.

  • Outsourcing/TUPE.

Labour says it will strengthen the rights and protections for workers transferred under TUPE but hasn’t offered any more detail, yet.  In July, the TUPE rules changed to allow employers to consult directly with employees if the business had fewer than 50 employees (previously it was fewer than 10 employees) or if fewer than 10 employees would be transferred. This has removed collective consultation from a lot of TUPE processes and made the processes simpler and cheaper.

Labour could revert back, which would mean employers would have to go back to consulting collectively with employee reps for most TUPE situations making the process more time consuming and expensive, but as it would be returning to the previous rules it’s unlikely to have a substantial impact upon employers.

They may also look at making it harder to make transferring employees redundant or make changes to their terms and conditions of employment. It’s not clear how this could be achieved, however, employees already have several rights in a TUPE situation, including the right to compensation if they aren’t consulted with and unfair dismissal rights. They could also extend the group of people covered by TUPE, which would fit alongside their discussions about ending the three statuses in employment law (worker, employee and self-employed). Traditionally, TUPE has only applied to employees, but recent case law suggested workers were also covered. Labour have referred to ‘workers’ in their manifesto and this change would widen the pool affected in a TUPE situation.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

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Employment Tribunal Case Law – How Far Should Reasonable Adjustments Extend?

In Cairns v Royal Mail Group, the Claimant was employed as a postal delivery person on outdoor duties. He could no longer work outdoors due to a knee injury and osteoarthritis, which is considered a disability. Subsequently, he had moved to a supernumerary indoor role for a period.

The Respondent began consultation to dismiss him on grounds of ill-health retirement, as he could no longer work in his outdoor job. At the time, no other indoor vacancy was available, and so the Claimant was dismissed. As a result of this, the Claimant had made a claim for unfair dismissal. He also claimed that failing to wait for the imminent merger of the Claimant’s postal centre with another centre, which would have created vacancies for indoor roles, was a failure to make reasonable adjustments and discrimination arising from a disability.

The employment tribunal dismissed all claims, holding that there comes a time when a surplus job must come to an end. The Claimant appealed the outcome due to discrimination. Allowing the appeal, The Employment Appeal Tribunal held that the tribunal had concentrated too much on the circumstances at the time of the dismissal. By doing this, they had failed to consider an essential part of the Claimant’s case: that at the time of his appeal, the Respondent should have kept him in employment so that he could be assigned to an indoor role, on the merger of the two postal offices.

It was the Claimant’s case that it would have been a reasonable adjustment to keep him in employment for this short period. He also claimed that his inability to work outdoors was a direct result of his disability, and therefore, the decision to dismiss him for this reason was discriminatory and unjustified given the plan for new indoor roles.

This case highlights the importance of considering reasonable adjustments whereby an employee is discovered to have a disability under the Equality Act 2010. Under the Act, employers are required to make changes to job roles and workplaces to enable individuals with a disability to carry out their functions as a non-disabled employee would. For your information, what is ‘reasonable’ will be judged against the following criteria:

  • The extent of any disruption that an adjustment may cause to your organisation or other employees;
  • The cost and your budget;
  • Practicality;
  • The effectiveness of the adjustment in helping the employee do their job; and
  • The availability of financial or other assistance from certain schemes such as the government’s Access to Work programme.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

Allocation of Tips

New legislation on allocation of tips and the corresponding Code of Practice is set come into force on the 1st October 2024. This was confirmed by commencement regulations for the Employment (Allocation of Tips) Act 2023 and Code of Practice which have been laid out by Parliament.

The key features to note from the Act are as follows:

  • Employers are required to pass on tips in full to workers;
  • Tips must be allocated in a fair and transparent way;
  • Employers of businesses where tips are left more than occasionally are required to have a tipping policy in place;
  • Tips must be distributed within one month following the month in which they were received;
  • Workers have a right to request a copy of their tipping record to enable them to bring a claim to the employment tribunal where they believe they are not receiving tips they should be;
  • Employers are required to maintain a record of how every tip has been dealt with for three years from the date the tip was paid; and
  • Employers must have regard to the new statutory Code of Practice when distributing tips.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

Employment Tribunal Case Law – Sexual Harassment

An important case recently heard in the Employment Tribunal highlights the importance of training managers on anti-harassment policies, and what they should do if harassment is reported to them.

In this case, KJ was employed by the British Council but had been working in Morocco as a teaching centre cluster lead when Morocco entered lockdown because of the Covid pandemic. Her role was deemed business critical and so she stayed in Morocco throughout this period, as well as Tony Reilly, who was the organisation’s most senior person in the country at that time. At first, their relationship was amicable as Reilly had helped KJ secure flights home to the UK when her father sadly passed away. However, the relationship soon became obsessive, and had culminated in stalking, constant messages, and sexual harassment.

KJ proceeded to lodge a formal grievance, however, the Company’s internal investigations revealed that there were no unwanted sexual advances. On the advice of her line manager, who said KJ should have been clearer in her communication that she did not want anything to happen, KJ emailed Reilly explaining how she felt. Reilly had replied with an apology, and an acknowledgement that the behaviour he displayed was wrong. However, even after this point, Reilly continued to message KJ and even turned up to work social events he knew KJ would be at, which made her even more uncomfortable.

Despite KJ’s report of Reilly’s actions to his line manager, no formal action was taken against Reilly by any member of management, or anyone at the British Council, in relation to the allegations made. As a result of this, KJ submitted a formal complaint to the British Council’s regional HR director. The examples of what she had experienced were taken straight from the organisation’s bullying and harassment policy, and included criminal behaviour, unwanted sexual advances, and physical touching. The organisation’s Speak Up Committee (SUC) – which was chaired by British Council CEO Andrew Williams – was notified of the complaint.

The investigation report was submitted to the SUC. Ultimately, the SUC concluded that the allegations of harassment were upheld but the allegations of sexual harassment were not. As part of its conclusion, the SUC stated: “Both parties have admitted that they were either exploring a romantic relationship or were being flirtatious with the other. [The claimant] has indicated that she was flirting back with Tony until early November, and Tony was also exploring the boundaries of their relationship.”

KJ raised concerns about the outcome with HR and resigned by email. She said receipt of the grievance outcome was “the final straw” that led to her resignation. She appealed the outcome of the grievance, and the organisation’s regional director was asked to be the final decision maker. As part of his findings, he said: “If [the claimant] was a victim of harassment/sexual harassment and stalking, why did she share such friendly, occasionally intimate, messages with TR, through November and December?” 

Employment judge Shore ruled that Reilly sexually harassed KJ and that the British Council was vicariously liable for his actions. Furthermore, the tribunal found that the SUC’s investigation was “deeply flawed” and “effectively said that the claimant had given a green light to Mr Reilly’s behaviours”. It found that the British Council failed to “proactively or reactively take steps to protect the claimant from Mr Reilly’s behaviour and/or take adequate effective measures to prevent it”.

The tribunal found the conclusion of the internally appointed investigator’s report – that there were no unwanted sexual advances – “inexplicable and entirely unsustainable” and “internally contradictory”. Ultimately, the tribunal stated that the SUC “erroneously and inappropriately attributed blame and responsibility to [KJ] for Mr Reilly’s harassing actions by dismissing his behaviour as having been encouraged by her” and “failed to uphold the complaint of sexual harassment by concluding that unwanted physical touching on two separate occasions did not constitute sexual harassment”. 

This case highlights to employers that a clear policy concerning sexual harassment must be a priority in protecting their employees and in the interests of the organisation.

It is the responsibility of employers to take active steps to implement the policy they have in place and enforce better training, communication and expected behaviours throughout their organisation. 

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

Employment Tribunal Case Law – National Minimum Wage

In the case of Taylor’s Services Ltd v HRMC, zero-hours workers travelled to farms around the country providing poultry services. They were picked up by their employer’s minibus from their home addresses. HMRC then proceeded to issue a notice of underpayments of national minimum wage (NMW) to their employer.

HMRC concluded that time spent by the workers travelling by minibus to and from their home addresses to several farms ought to be paid at national minimum wage. The employment tribunal agreed with this position, taking a consecutive approach to Regulation 30 and 34 of the National Minimum Wage Regulations 2015.

The Employment Appeal Tribunal disagreed and held that time spent ‘just’ travelling is not “time work” for the purposes of Regulation 30 unless it is deemed to be such by Regulation 34. Regulation 34 states that travel from home to place of work is not “time work”. Unless there is ‘work’ being done while ‘travelling’, the time spent on that activity cannot be ‘work’ for the purposes of Regulation 30. The mere fact that the travel is travel that the worker is obliged by the employer to undertake – using their minibus – does not turn the travel into work.
 
The EAT did recognise that this led to an injustice: “If the employer requires the employees to be collected from, and returned to home, then they are not (on my analysis) entitled to NMW, but if the employer requires them to come to its premises first, then the subsequent travel is deemed by regulation 34 to be “time work” and the NMW is payable”. The EAT set aside the employment tribunal’s decision and allowed the employer’s appeal against the notices of underpayments of NMW that had been issued by HMRC.

For your information, the National Minimum Wage (NMW) regulations require employers to pay the NMW for all hours worked. This includes certain types of travel time:

  1. Travel between job sites: Travel time between different job locations during the workday is considered working time and is included in calculating whether the worker has been paid at least the NMW.  
  2. Travel for job-related duties: Travel during the workday, such as travel to attend work meetings, is also included in working time.
  3. Exclusions: Travel time between home and the first/last work location of the day is usually not considered working time for NMW purposes.

The key things to note from this case related to travel time are: 

  • You do not have to include commuting time in NMW calculations where the worker travels between home and the first/last work location.
  • You do have to include, for NMW calculations, travel time between the different work locations including where the worker attends a hub/base first, and then travels from there to their subsequent work location.
  • The NMW regulations are different from the Working Time Regulations (WTR). Under the WTR the time spent travelling from home to the first work location, and from the last work location back home, is considered working time for peripatetic workers.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

New Sexual Harassment Legislation to Take Effect – Are You Ready?

On the 26 October 2024, The Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force, amending the Equality Act 2010 in two respects.  

  1. Imposes a ‘mandatory duty’ upon you to take ‘reasonable steps’ to prevent sexual harassment of your employees in the course of their employment. This applies to sexual harassment as defined in the Equality Act 2010, which is unwanted conduct of a sexual nature which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment. 
  1. Providing employment tribunals the authority to uplift sexual harassment compensation by up to 25% where it is found you have breached this new duty.  Please note, this uplift could be substantial, particularly as compensation awarded in serious cases of sexual harassment can exceed £50,000.  In addition to this, complaints of sexual harassment can also lead to costly settlements, high-profile departures of senior management, loss of productivity and an adverse effect on recruitment and employee retention. 

What can you do?

Over time the courts have made it evidently clear that such reasonable steps will usually include:

  • Having well-drafted equal opportunities and anti-harassment and bullying policies in place
  • Ensuring all employees are aware and understand such policies and their implications
  • Taking steps to deal efficiently and effectively with complaints, including taking appropriate disciplinary action where necessary, and
  • Providing equality and harassment training to employees and supplementary training for those individuals with managerial/supervision responsibilities.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

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Employment Tribunal Case Law – Redundancy Pool of Selection

A recent case heard by the Employment Tribunal highlights the importance of following a fair consultation process when looking at redundancies, regardless of the pool.

In the case of Valimulla v Al-Khair Foundation, the Claimant worked as a liaison officer covering the North-West of England. There were other employees who carried out a similar role in other geographic locations. Work for liaison officers decreased across the country during the Covid pandemic. The Respondent placed the Claimant at risk of redundancy in a pool of one, with the other liaison officers not placed at risk. Whilst three consultation meetings were held, there was no consultation about the appropriateness of the selection pool. The Claimant was dismissed and claimed unfair dismissal.

In the first instance, the Employment Tribunal accepted Al-Khair Foundation’s defence that Mr Valimulla was in a self-selecting pool of one and found that the selection process had not been flawed. The Claimant appealed.

The Employment Appeal Tribunal, allowing the appeal, held that consultation on redundancy had to take place at a time when it could make a difference. The Respondent had not consulted with the Claimant about the pool for selection. The tribunal had also failed to consider whether choosing a pool of one was a reasonable approach in this particular case. 

The EAT substituted a finding of unfair dismissal (on procedural grounds) because of the failure to consult about pooling. 

This case demonstrates the importance of employers genuinely applying their mind to the question of pooling and evidencing reasonableness in their approach. It also reiterates the need to consult with staff on a proposed redundancy pool and carefully consider the choice of pool, which includes looking at employees at different locations.

Relevant factors which may be considered when determining the pool of candidates for redundancy include the following:

  • The extent to which employees are doing similar work (possibly even if they are performed at different locations). The employer should look at the reality of the situation as opposed to what the contract says in theory regarding the employees working role.
  • The extent to which any employee roles are interchangeable.
  • Whether the employer “genuinely applied” its mind to the composition of the pool.
  • Whether the selection pool was agreed with the union or employee representatives, if appropriate.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

Employment (Allocation of Tips) Act 2023

The Government recently announcement that the Employment (Allocation of Tips) Act 2023 will now come into force on 1st October 2024, as opposed to the original proposed date of 1st July 2024.

Under this Act, employers will be required to pass tips on to workers; employers of businesses where tips are left more than occasionally are required to have a tipping policy in place; and workers have a new right to request a copy of their tipping record, in order to enable them to bring a claim to the Employment Tribunal where they believe they are not receiving tips they should be.

Employers will also be required to consider the new statutory Code of Practice when distributing tips. The final draft version of this new statutory Code has now been published: https://www.gov.uk/government/consultations/distributing-tips-fairly-draft-statutory-code-of-practice.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

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