The UK’s employment rights bill illustrates the impact a government can have on the workplace. And there is no doubt that this first Labour government in 20 years is trying to make its mark on employment practice.
There is impact on both sides, companies as well as its employees, but there is no doubt that what is being proposed is more beneficial to employees. The key changes from our perspective are the rights accruing to workers from day one of their employment including:
- protection against unfair dismissal (previously available only after a two year period);
- flexible working;
- statutory sick pay; and
- maternity and paternity leave.
There is much to be lauded in the bill including policies that are a lot more family friendly and more protective of workers. Some of the changes, including those around fire and rehire and zero-hour contracts as well as rules around tipping do not affect us because of the specialist industry that we operate in. But they will be hugely significant to other organizations.
With highly specialist staff, it is often difficult to determine with certainty at an interview stage or when making an offer, whether a person will actually be suitable for the role.
New rules always bring with them some challenges. One of the things that we are concerned about and will be observing very closely is the government’s consultation around the length of a statutory probation period during which newly incoming employees can be dismissed more easily. From a management perspective, and particularly in the area in which we operate – one that involves highly specialist staff – it is often difficult to determine with certainty at an interview stage or when making an offer, whether a person will actually be suitable for the role.
We have some very robust processes in place, of course, but these do not reveal all and depend on both parties being able to communicate clearly and honestly. And let’s face it, there is an incentive both for incoming employee and manager to present an optimistic picture prior to making or receiving an offer.
The manager is often keen on additional resource to help with urgent work, the employee is keen on receiving an offer. And from a management perspective the lack of flexibility around being able to make a swift decision to dismiss because things simply are not working or, perhaps, the person does not actually have the right attitude or skills to fulfil their duties, is a real potential problem.
As an HR professional you are there to protect the company, but you are also an advocate for the company’s employees and have an obligation to protect and to help them.
Gender and race equality reporting is a key part of the new regime and will be required for all employers of a certain size. We are very lucky to have a good level of diversity, but for many companies this may prove to be a difficult reckoning, particularly where pay has been lagging or where hiring into certain functions has been a challenge because of a lack of qualified candidates. The latter can sometimes be an excuse for inaction by hiring managers however, so HR teams will have to proceed very carefully.
Another key change is the introduction of a new duty for employers to take reasonable steps to prevent sexual harassment. The fact that this is a ‘proactive’ and a ‘preventative’ duty could be a real challenge from a practical perspective – it is essential to ensure that policies and governance reflect these changes and that measures are in place to assess and mitigate any risks identified. The consequences are not only limited to increased compensations, but cover reputational damage, morale, etc. These are all issues of concern to HR teams in connection with harassment already, of course.
Another area of concern for us from a practical perspective are the potential changes around employment tribunal claims. Under the current rules, if someone were to leave an organization they would have three months to challenge an employer by making a claim to a tribunal. The new rules have extended this period to six months. So potentially you could be dealing with a matter that occurred more than six months ago. This is a real problem from the evidentiary perspective. Simply establishing what happened could be a challenge – particularly as memories fade and other employees potentially leave the organization.
A good recordkeeping system could be crucial for a good outcome for an employer faced with allegations.
And the potential issues here are compounded by the fact that even a potential hire could make a claim if they felt that they were treated unfairly or discriminated against at that stage of the process. This chain of hiring, once entered into, creates almost instant obligations including those connected with GDPR. And the wording of the advert itself is a potential starting point, so needs to be considered carefully.
A good recordkeeping system (something we take for granted here at Global Relay given that it is our bread and butter) could be crucial for a good outcome for an employer faced with allegations – either to quickly investigate and settle or to challenge those that are unfounded or unsupported by fact. And this is important because we think that more employees will be going to tribunals because they will be free – another major change. Previously employees had to pay to make a tribunal claim and fewer opted to go down this route as a result.
Finally, another change is one connected to the debate around homeworking. This is also interesting in connection with the recent announcement about civil servants being asked to return to the office three days a week. The rules change being proposed is one where people can request to work from home permanently. And the employer has the obligation to respond to such a request within two months. The key thing here is that while the request does not need to be upheld, it must be formally considered. And that means putting rules and processes in place around this and the decision making in each relevant case as well.
And that is a good segue to one practical thing that should not be overlooked once the rules are actually in place. Employers need to ensure that it is not only internal documentation and processes that are kept up to date, but that employment contracts are amended as well. And that may well involve working with the legal team and ensuring that all hiring managers are aware of the changes.
What is critical, however, is that the rules, once in place, remain relatively stable.
This goes to the heart of what an HR function is about. As an HR professional you are absolutely there to protect the company, but you are also, at the same time, an advocate for the company’s employees and have an obligation to protect and to help them. Balancing these two objectives is often the most difficult aspect of the role.
Moving away from the detail and the potential changes, when it comes to good HR practice some things remain the same. It is essential to stay abreast of the changes, but also to make sure that both managers and employees are aware of these. Making sure that all in your organization are informed of the changes clearly and promptly and, crucially, offering training in some of the more complex and challenging areas will not guarantee good results all the time, but will almost certainly decrease the number of problems that lead to a conversation with the HR or legal team.
Global Relay is very much an international company and we do not think that the rules will necessarily result in a lack of competitiveness for the UK, which is often (and not only by us) viewed as a location of choice for both employer and employee. What is critical, however, is that the rules, once in place, remain relatively stable. It is certainty about the rules that goes a long way to encouraging companies from outside the UK to set up shop.
Stability will help all types of companies assess and plan without fear of having to deal with further drastic changes once committed to having an operation and employees in the UK.