REUTERS | A grey squirrel looks out among spring daffodils at the National Botanic Gardens in Dublin, Ireland, March 23, 2021. REUTERS/Clodagh Kilcoyne - RC28HM92SJMK
REUTERS | A grey squirrel looks out among spring daffodils at the National Botanic Gardens in Dublin, Ireland, March 23, 2021. REUTERS/Clodagh Kilcoyne - RC28HM92SJMK

POLONIUS: What do you read, my lord? 

HAMLET: Words, words, words. 

(Hamlet, Act 2, Scene 2) 

 

Neurodiversity Celebration Week took place between 21 and 27 March. The following week was Autism Acceptance Week, culminating in World Autism Awareness Day on 2 April. This means neurodiversity has featured heavily on social media recently.  

During Neurodiversity Celebration Week, I spent some time reflecting on my practice as an employment lawyer. Were there any areas of my work that were not particularly neurodiversity-friendly? Could I improve things for neurodiverse clients? Was it something to consider?  

At the time I had received a case file that included around 50 pages of policies on disciplinary, grievance, and harassment at work. The dispute involved a dyslexic member of staff. I perused the densely packed text. “Hardly dyslexia friendly,” I mused to myself, observing the irony.  

I tried to imagine being dyslexic and receiving all that text to read as a new employee. How would that make you feel? How would it affect your perception of that employer? 

What is neurodiversity? 

The term “neurodiversity” (or ND for short) was first coined by the social scientist Judy Singer in the 1990s. It refers to a difference in brain processing that can affect social interaction, learning, attention, sensory processing, and other aspects of interacting with the world and other people.  

It has become a collective term for conditions such as autism, ADHD, dyslexia, dyscalculia and dyspraxia. The word was an attempt to reframe the narrative away from the negative connotations that the conditions were pathological disorders needing to be remedied. Consider it as just another aspect of diversity. 

I received a diagnosis of autism a couple of years ago. It was a shock at the time. But that was due to my own perceptions of what autism meant, no doubt influenced by the movie Rain Man.

Visual thinking 

The American scientist Temple Grandin has written extensively about how her autism is an asset in her specialist field of designing facilities for livestock. One of her theories is that autistic people are more likely to be visual thinkers. She has even written a book entitled Visual Thinking, which describes the way in which she thinks, quite literally, in pictures.  

This concept of visual thinking has been commented on by a number of specialists as being a common experience across the ND community. Sir Richard Branson, who is dyslexic, has spoken about how he is able to “see” innovations and business opportunities. He has also written about the way dyslexia shaped his approach to developing products and services at Virgin by focusing on short, concise slogans that resonate immediately. Basically, dyslexia helps him cut out the waffle.

Written policies in the workplace 

Some estimates suggest 15% of adults are ND. That translates to one in seven employees. Potentially, a sizeable chunk of your client’s workforce could be alienated by the presence of a text-heavy staff handbook. And if those 15% are more likely to be visual thinkers, preferring diagrams and pictures, how effective is the traditional staff handbook for ensuring information is absorbed?  

As an employment lawyer, I realised that most workplace policies are presented as pages on pages of text. Usually they are typed as 10-point Arial or Times New Roman. Each policy laid out in paragraphs. Blocks of text, broken up only by headings and titles. 

But is there any legal or technical reason why a staff handbook must be formatted as pages of continuous text? I cannot think of any legal requirement for the contents of a staff handbook to be presented that way. So why do employment lawyers continue churning them out when requested?  

Is it convenience (I mean the lawyer’s convenience, not the client’s)? After all, what could be easier than accessing a precedent, replacing the square brackets with the name of the employer, and sending it to the client? And perhaps the client feels reassured. After all, if their lawyer has provided all those documents, it must be to satisfy a compliance obligation of some sort. 

Somewhat ironically, there is one particular section of the staff handbook that is always laid-out clearly in bullet point format, with lots of space for the text to breathe: the non-exhaustive list providing examples of gross misconduct that could constitute dismissal. Lawyers always get that bit right. 

Alternatives to text 

In 2018 I recall seeing a sample subject access request procedure in the form of an infographic. Two pages of boxes, icons, and signpost text explaining how to respond to a data request. It was fantastic. It communicated the necessary information in a clear and concise way. Surely that is the purpose of a workplace policy: to convey essential information that the worker needs to know. 

There might be circumstances where a text-heavy policy is required, which is fine. But if not, do lawyers have a responsibility to consider alternatives, such as using flowcharts, graphics or process maps? They are likely to be more inclusive towards the 15% of your client’s staff who are ND. Do we, as employment lawyers, ever mention this to a client? 

I might be wrong, but I suspect there is a fear that turning workplace procedures into infographics would appear unprofessional. Style over substance. A workplace policy is a legal matter which should not involve a graphic designer.  

It could also make the policy look childish. There is a counter to that: Steve Jobs (himself dyslexic) instructed his designers at Apple to make the iPad so easy to use that a small child could pick it up and start using it immediately. 

Consider the last time you bought a gadget or piece of tech like a smart-TV. Usually, it comes with some form of “quick start guide”. Is it ten pages of unbroken formatted text? More likely it is a series of numbered graphics and text boxes explaining how to set-up and use the device.  

There is a reason why they have been designed in that format. They are aiming to communicate essential information to a diverse range of people. Does that remind you of anything?  

REUTERS | A pile of one pound coins is seen, in central London June 17, 2008. British inflation rose in May to its highest since the Labour government took power in 1997, but expectations of higher interest rates ahead fell sharply because the Bank of England said the rate outlook was uncertain. REUTERS/Toby Melville (BRITAIN)

Vexatious claims hit the headlines last year after one claimant who was hit with a costs order for bringing yet another claim of discrimination against an unsuspecting employer went on to succeed in his appeal against the Employment Tribunal’s decision to strike out his claim. Despite previous tribunal judgments (against different employers) recording a strong suspicion that the claimant was making vexatious claims to see if he could get a settlement payment, the serial claimant won his claim for disability discrimination, after having brought at least 30 other similar claims which were usually withdrawn or struck out. 

Well, the ante was certainly upped by the Attorney General who recently turned the tide on a vexatious claimant in launching legal action against them. This was not a costs order, however, but an indefinite restriction of proceedings order (RPO). 

Indiscriminate discrimination claims 

According to the applications, the respondent, David Taheri, had made more than 40 claims in the Employment Tribunal over a period of ten years, all relating to unsuccessful applications for employment. His modus operandi, it claimed, saw him apply for a job and, once he was refused, launch legal actions against the potential employer on the basis of age, race or disability discrimination. Details and accusations were sketchy; he usually valued the claims between £25,000 and £40,000, but sought a nuisance settlement of a few hundred pounds, often with the threat of adverse publicity or regulatory referral against the solicitors acting for the employer. In some cases, he was also accused of harassing the employer by turning up at the workplace and angrily airing his grievance, writing repeatedly to demand settlement (or threatening to hold a press conference), and booking in fictitious appointments under different names. 

The Attorney General’s application for an RPO was made pursuant to section 33 of the Employment Tribunals Act 1996. The applicant asked the Employment Appeal Tribunal to make an RPO of indefinite duration against the respondent, on the basis that he had habitually and persistently, and without reasonable grounds, instituted vexatious proceedings before the Employment Tribunal. Mr Taheri resisted the application on the basis that it would violate his rights to a fair trial under the European Convention on Human Rights. 

Eady J found that the litigation in question was plainly habitual and persistent. Mr Taheri had issued at least 43 claims over a ten-year period. The judge did not derive any comfort from Mr Taheri’s submission that he had “only three” claims pending in the tribunals at present or that there had been a four-year gap in his pursuit of claims. 

In determining whether claims had been brought “without reasonable grounds”, it was noteworthy that not one of his claims had been successful at a full merits hearing and that many other claims had been struck out or withdrawn after deposit orders were made against him. Mr Taheri had “weaponised” the tribunal process by subjecting would-be employers to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to him. 

In conclusion, Eady J, allowed the application and was satisfied that the balance fell firmly in favour of making an RPO of indefinite duration: “That, it seems to me, is necessary for public protection against abusive claims and to ensure that the administration of justice is not impaired by the persistent pursuit of unmeritorious proceedings,” she added. 

Pump up the volume  

The case provides some interesting lessons. The sheer volume of cases (43 claims across ten years brought against potential employers who had refused to give him a job) shows a clear pattern of behaviour. While the RPO is, as the judge put it, a “filter rather than a barrier” to future claims, Mr Taheri is effectively banned indefinitely from starting court cases without permission. The RPO means that, without the leave of a judge from the Employment Appeals Tribunal, he cannot issue proceedings in the Employment Tribunal. 

Many employers in this present case sought to “buy off” the spurious claim for a small sum as a commercial decision rather than incur the legal fees of defending it. The EAT stressed that did not necessarily mean the claim had not been vexatious. Going via ACAS is a cost-effective settlement route but not one to be recommended on multiple occasions as it sets a terrible precedent, one relied on heavily by Mr Taheri who was able to extract nuisance settlement payments via ACAS, without even incurring the costs of his own solicitor to advise on and sign off a settlement agreement. 

Are there any other options? Consider applying for the case to be stuck out and, in the alternative, for a deposit order to be made as a condition of the case being pursued. In this case, Mr Taheri refused to pay a number of deposit orders made against him and so the proceedings were discontinued. If a claimant does make the deposit payment and the claim fails, the claimant will be treated as acting unreasonably in pursuing the claim and an award for costs may be made, including the payment of the deposit to the other party. Costs do not generally go in favour of the winning party in an Employment Tribunal, but an application for costs may be made. In a hopeless case that has been vexatiously brought, a tribunal may well be persuaded to make a costs award against the claimant. 

Don’t settle for more  

Having good housekeeping for those on an employer’s interview panel is a must for this sort of action and defending these claims generally. Make sure that the interview panel is up to date with their D&I training. Be clear about the importance of keeping notes: what to write and, more importantly, what not to write. In some cases, Mr Taheri’s claims were struck out or rejected where it was evident or noted that the decision not to hire him had been for some non-discriminatory reason (for example, because he did not have the relevant experience, had lied on his application form or failed to respond to text messages to arrange a work trial). Hiring decisions should be robustly made involving HR. 

In conclusion, an employer should not panic if they receive a strongly worded letter before action. The financial and potential reputational cost of a discrimination allegation is obviously a cause for concern, but undertake a calm, measured review into the claim and the options. Do not be intimidated into to a settlement.  

REUTERS |

Working from home has taken centre stage over the last two years. In many industry sectors, it has been necessitated by the pandemic and the restrictions on interaction and travel. It has also evolved to become the preferred way of working for vast numbers of office workers. 

It isn’t limited to office environments. In April 2020, 46.6% of people in employment did some work at home, primarily because of the pandemic (see Office for National Statistics: Coronavirus and homeworking in the UK: April 2020). Around one third of those working from home worked more hours than usual. Remote school teaching, unheard of before the summer of 2020, became widespread overnight. 

The benefits of this ability to work more flexibly were significant. It enabled businesses to continue to operate during national periods of lockdown and the increased use of technology allowed people to effectively stay connected to colleagues, customers, suppliers and networks. It means less time spent commuting and arguably greater productivity. 

The consequences of flexibility 

Has this agile new world of remote working presented a different, widespread problem for workers?  

Those that work from home are aided through advances in technology. There are so many ways to connect with colleagues; Teams, Skype, email, WhatsApp, phone calls, Facetime and various types of instant messaging, all of which are accessible on a mobile phone. Notifications signal receipt of messages and there is no need to have a laptop switched on. 

It has become difficult to escape from work.  

It becomes rather more sinister if you consider how some employees are monitored at home, through technology and various types of reporting.  

When at work, workers leave to go home. The boundaries are clear. When your place of work is your home and your hours are not tightly defined, these boundaries become almost impossible to determine.  

In many ways, this has adversely impacted workers’ mental health. The feeling of isolation, the lack of support, sometimes of purpose, has made remote working significantly detrimental for many. The pandemic has fast tracked us to an “always on” culture. 

Of course, this is not new for all workers, with long and anti-social hours being commonplace in some sectors. Where a business has requirements to respond to clients within tightly defined timescales, or clients know that they can demand fast responses and turnaround times because of the competition, the pressure is on to work longer and later and to always be accessible. 

Is there a need for legislation? 

“The right to disconnect” is a term as yet undefined by UK or EU law. The Working Time Regulations 1998 set out statutory limitations around working time and breaks. This was introduced in order to protect the health and safety of European workers. 

The European Convention on Human Rights also has a say in working time, at least indirectly. Article 8 of the Convention provides an enshrined right for a private and family life at home and Protocol 1, Article 1, confers a right on citizens to peaceful enjoyment of their property. There is also other health and safety legislation which is relevant to expectations over working time and the duty of care for the wellbeing of workers. Whether these are adequate is up for debate. 

In January 2017, France introduced legislation prohibiting employers from encroaching on their employees’ personal and family lives. In practice, this provided protection from dismissal, or other adverse treatment, for failing to respond to emails or calls during non-working time. There is a right to be paid extra for that time if they do respond. 

Many other European countries have followed, including Belgium, Italy, Spain, Ireland and most recently, Portugal. These have been decisions taken at a national level and Scotland has commenced consultation around the possibility of following suit. Westminster continues to consider whether to legislate around hybrid and flexible working and the limitations on contact outside of core, working hours are part of those considerations.  

It is difficult to envisage legislation that can be effective in providing adequately defined rules, yet with suitable flexibility for practical application among the diverse requirements of hybrid or remote workers and businesses. 

Are there better solutions? 

There is no doubt that there is technology which can assist to enforce these rights, if introduced. Applications that freeze access to emails or other methods of contact between set hours wouldn’t be difficult to implement. The risk though, is that this creates more problems than it solves. 

Burn out is real. Work related stress is present in perhaps every workplace in the UK, to a varying degree. Yet stress can be exacerbated by implementing rigid structures on working days. The success and evolution of flexible working is driven by the desire to have autonomy, not only over where workers work, but when and how they work. For working parents or carers to be told that they can’t do an hour in the evening, to allow them to take an hour to do the school run, will be too restrictive for many. 

There is a balance to be struck. Employers have a duty of care to their workers to control the working environment and limit the risks associated with an intrusion to their rest and relaxation time. This contrasts with a workforce looking for more agile arrangements and greater autonomy over their schedule. 

As is often the case, some sensible compromise is the most effective tonic. Allowing workers flexibility while encouraging them to strike an appropriate balance between work and family or home life is key. As is not taking punitive action against them if they don’t action an email at 7.00 pm or 7.00 am. 

The expectations are everything. How clear a business is on this and how those expectations are managed may be the most effective way to achieve a healthy balance between work and rest. 

REUTERS | Pedestrian cross the new diagonal crossing at Oxford Circus in London November 2, 2009. The design of the new £5 million ($8.2 million) pound crossing was inspired by the Shibuya crossing in Tokyo and allows pedestrians to cross diagonally. REUTERS/Stefan Wermuth (BRITAIN TRANSPORT CITYSCAPE SOCIETY IMAGES OF THE DAY)

The recent EAT case of Pitcher v Chancellor Masters And Scholars Of The University of Oxford (EA-2019-000638-RN; EA-2020-000128-RN) provides interesting commentary on two important issues for employment lawyers:  

The appeal involved two linked cases both of which dealt with the same retirement policy, but each of which came to the opposite conclusion as to whether it could be justified. What makes this EAT decision so striking and unusual is that the EAT upheld both of these apparently contradictory conclusions. 

Facts of the case

The first appeal related to Professor Pitcher, an Associate Professor of English Literature. At 67 he was compulsorily retired by operation of Oxford University’s “Employer Justified Retirement Age” (EJRA).  

The second appeal featured Professor Ewart, Associate Professor of Atomic and Laser Physics, who had been able initially to extend his retirement age by application for an exception, but whose second application was refused, under the EJRA provisions. 

The ETs in each case held that the EJRA had the following legitimate aims: 

  • Inter-generational fairness. 
  • Succession planning. 
  • Equality and diversity. 

Although it did not achieve those aims of itself, it facilitated other measures taken to those ends by ensuring that vacancy creation was not delayed and that recruitment into senior academic roles could progress; from a more diverse cohort. 

In Professor Pitcher’s case, the ET came to the conclusion that the EJRA could be justified by the University and that accordingly he had been fairly dismissed. In Professor Ewart’s case, to the contrary, the ET decided there was insufficient evidence that the EJRA really achieved the legitimate aims to a sufficient degree to outweigh the extreme severe discriminatory impact on him, and so found the dismissal unfair. 

Role of the EAT 

The EAT judgment, delivered by Eady J DBE, set out the law relating to its role and powers on appeal. From the relevant case law, it derived the following principles: 

  • Determination of whether or not discrimination can be objectively justified is an exercise which requires considerable insight and skill, and the EAT is entitled to carefully scrutinise whether the ET reached its decision by fairly assessing the evidence presented by the employer (Hardy & Hansons plc v Lax [2005] EWCA Civ 846). 
  • The EAT should, however, be slow to substitute its own judgment where the ET had been presented with a mass of evidence to assess, and what was required was that, as Lady Hale had said, “we must be able to detect an error of law” (Lord Chancellor v McCloud [2019] ICR 1489; Essop v Home Office [2017] UKSC 27). 
  • Ultimately where the issue on appeal is objective justification, the test for interference by the appellate tribunal is one of perversity. There must be an “overwhelming case … that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached” (British Airways plc v Starmer [2005] IRLR 863; Yeboah v Crofton [2002] IRLR 634 CA).
Law on justification for direct age discrimination 

The relevant legislation provides: 

(1)  A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” 

97.  Where the claim is one of direct age discrimination, however, sub-section 13(2) allows for a defence of justification:  

(2)  If the protected characteristic is age, A does not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim. 

(Section 13, Equality Act 2010.) 

Eady J distilled the relevant case law down to the following: 

  • There are two broad types of legitimate aim: general policy objectives that might include social objectives and “inter-generational fairness”, or even “dignity”: by avoiding disputes about competency for older employees; and particular objectives relating to the circumstances of the specific business in question (Seldon v Clarkson [2012] UKSC 16). 
  • The policy put in place to achieve these aims must however also be “appropriate and necessary” bearing in mind the gravity of the effect of the discrimination. The test of whether it can be justified is an objective one to be carried out by the ET without reference to the subjective assessment of the employer (Seldon; Hardy; Chief Constable of West Yorkshire Police v Homer [2012] UKSC 15). 
  • “Appropriate” means that the policy must be capable of actually achieving the legitimate aim (Seldon; Homer). 
  • “Necessity” involves a focus on the balancing act; whether there were less discriminatory means of achieving the legitimate aim (Hardy; Seldon). 
Conclusions of the EAT and commentary 

The EAT noted that the evidence in each of the two original ET cases had been presented slightly differently, and related to slightly different circumstances. In Professor Ewart’s case there had been evidence that the rate of vacancies created by the EJRA was trivial. By contrast, in the case of Professor Pitcher the ET accepted that the policy was only one part of a wider scheme of measures that, in combination, were “appropriately” effective at achieving the said aims. 

The EAT examined both cases to see how the law had been applied and concluded that it was properly taken into account in each. Ultimately, although different conclusions had been reached on proportionality, neither ET had actually erred in law. The nature of the proportionality assessment was such that two differently constituted tribunals, each directing itself correctly on the law, could properly come to different conclusions about the same policy. 

The task of the EAT was not to strive for a single “correct” answer, but to concentrate on the detection, or otherwise, of an error of law.  

This unusual outcome is a salutary reminder of the limits on the EAT when it comes to determinations of fact and objective justification. The EAT’s role is not to substitute its own view of the matter but to respect the fact that the ET had far more information at its disposal when it made the decision, unless that decision is shown to be based on an error of law. 

Finally, it is also a good pointer to all employers to review their retirement policies to ensure that the legitimate aims are not just stated but are being effectively achieved and evidenced. 

REUTERS | Pedestrians walk to work in downtown Los Angeles, California May 13, 2014. REUTERS/Mike Blake (UNITED STATES - Tags: CITYSCAPE BUSINESS EMPLOYMENT TPX IMAGES OF THE DAY) - RTR3OZX1

ESG (environmental, social and governance) is a drum that everyone is now rightly beating.  With COP26, sewage leaks and climate change ever-present in news headlines, we could be forgiven for thinking right now that it’s all about the “E”. Well, it isn’t. 

Now don’t get me wrong, the “E” is high priority, but an organisation’s social impact and approach to governance also needs to be high on the priority list as each element of ESG relies on the other in order to be truly effective. The five points below highlight just how important a role HR departments can play in an organisation’s ESG credentials. 

Working practices 

Working practices have a huge impact on an organisation’s social footprint. An organisation’s approach to issues such as diversity and inclusion, health and wellbeing, flexible working, family rights, annual leave and speaking up all leave an indelible mark on their employees, which is then taken back into the family, the community and society as a whole. Organisations’ reputations often speak for themselves. 

HR departments play a key role in ensuring that the right policies are in place to govern all working practices. They are there to provide advice on meeting not just legal obligations, but also on supporting the achievement of an organisation’s goals and ensuring that the organisation does “the right thing”. This means being able to challenge business decisions and playing an integral part in all board decisions. 

And of course, environmental matters should be built into all these policies and practices, too. 

Diversity and equality 

Every part of an organisation should be focused on the importance of diversity, inclusion and equality. HR will however be a key player in areas essential to ensuring diversity, inclusion and equality such as recruitment, promotion and pay, not only promoting diversity from within but also engaging with the local community in furthering social mobility. 

HR will also be able to ensure that the right processes are in place to enable wider engagement through building clear diversity and inclusion plans, setting targets and creating appropriate internal working groups and forums. 

Remuneration and incentives 

Let’s face it, we all know we should do more. However, HR and Reward teams can help with formulating the carrot to really help drive an organisation’s approach to ESG. ESG issues can be built into remuneration and incentive programmes and also appraisal systems to ensure that people are encouraged to do the right thing in the right way. 

Training 

None of these points matter of course unless the preaching is practised. Training (and proper training, not tick-box exercises) is fundamental to ensuring this all happens. HR will most likely be responsible for learning and development. It goes wider, though; what we learn at work we take into the wider world. Everything from resilience workshops through to technical skills increase an employee’s opportunity to contribute in the workplace and translate into wider societal gains. 

Data 

Employers hold a lot of data related to the points raised above. This data can be used constructively to identify risk, areas for improvement and help formulate plans to remediate them. Without this data, and HR teams to collate and provide it, ESG programmes will miss the mark. 

REUTERS |

The UK labour market is experiencing an unprecedented shortage of workers, causing supply chain chaos and economic uncertainty. Recruitment for both permanent and temporary jobs is more challenging than it has even been for some industry sectors and the haulage industry is perhaps where this has been most clearly visible. 

The Institute for Fiscal Studies (IFS) reports that the food and drink, haulage, care, warehouse and storage, construction, manufacturing and hotels have seen the most significant challenges since the re-opening of the economy following the national restrictions on business operations. 

Why has this happened? 

The two primary reasons are Brexit and the COVID-19 pandemic. These two seismic events have had a colossal impact on the UK economy. The pandemic caused national and international restrictions on trade and movement and at the same time, Brexit created restrictions on the availability of workers across the economy. These two events happening almost simultaneously has created a shock to the national and global economy. 

The rush to re-open post-pandemic has caused bottlenecks in supply chains for goods and services and the worker shortage that has arisen as a consequence, provides further frustration to the economic recovery.  

Brexit was always going to create challenges for those industry sectors that relied heavily on migrant workers, but the pandemic has undoubtedly compounded this significantly, making planning and mitigation all the more difficult.  

Many businesses have changed business models during the pandemic, including a significant shift to remote working. Those who returned from furlough in the autumn of 2021 needed reintegrating, refreshing and in some cases, upskilling upon their return from many months out of the workplace. Some have not returned, or have elected to change their priorities and work life balance, particularly those put off by working environments notorious for poor pay and conditions. 

How has this affected other parts of the economy? 

As well as directly through the supply chain, these gaps and strains have caused a ripple effect throughout the economy. There is reluctance to invest, as well as hesitation over budgeting and forecasting. Shortages means an increase in demand, which transfers into increase in costs.  

Nine million workers were furloughed at the peak of the pandemic which demonstrates the vulnerability of certain sectors, notably hospitality, tourism and close contact service environments. More than 50% of the total of the air passenger transport workforce was furloughed in 2020/2021 and there have been large scale redundancies throughout the last 18 months. 

The Chancellor has reported tax rises in the autumn budget and it is becoming evident to experts that the fiscal landscape is unlikely to recover as quickly as predicted in a post-pandemic, post-Brexit UK economy. 

What are the solutions? 

  1. Visas and work permits

While large scale migration neither causes, nor solves labour shortages, it can help with localised or temporary shortages. The granting of visas to international HGV applicants would ensure that the supply chain, particularly for key products such as food, is able to get moving. Expanding the Shortage Occupation List to enable priority work permits to be granted would also help, although nurses remain on that list and NHS England has reported in excess of 90,000 vacancies.  

  1. Improve pay and conditions

It has been widely reported that many HGV drivers received pay rises in the summer and autumn of 2021. Pay alone however, is not enough when the working environment is responsible for a high turnover of staff. Workers will be attracted by safe working environments, adequate breaks, greater flexibility and suitable facilities, which are essential to ensure that suitably skilled workers apply and remain in key jobs. 

  1. Recruit differently

By analysing the methods and channels of recruitment, employers can understand how they can appeal to a wider pool of applicants. Making use of apprenticeships and intern arrangements are alternatives and may come with government subsidies. Anyone with an appropriate drivers’ licence was written to in a recruitment drive for HGV drivers, which may seem a little desperate, but also provides an example of targeting potential applicants differently. 

  1. Training

The attributes existing workers have that are valuable, including knowledge of the company culture, loyalty and their skills and experiences, make them worth investing in. They may have transferrable skills to fill the gaps needed for operational recovery across the business. Providing for career development, skills and educational investment will help with retention of ambitious workers. 

  1. Patience

Recruitment bottlenecks are inevitable as all sectors and businesses actively recruit at the same time. This will take time, but is not a permanent barrier to finding suitable applicants to fill vacancies. 

  1. Working differently

By cutting out unnecessary tasks or touch points, businesses can find more efficient ways to deliver the same output with more limited resources. Investment in automation and greener technologies, or by outsourcing parts of an operation to agencies or companies who have a larger pool of resources, can provide both short and long term solutions to the current shortages. 

Is the end in sight? 

The landscape is improving. The number of employees on payroll is already back to pre-pandemic levels at just over 29 million. This is despite the number of reported vacancies being around 1 million in August 2021, rising 25% in the previous three months across all sectors. This suggests that employers are actively seeking to recruit and struggling to do so.  

Shortages of skills, particularly in low paid jobs, is more open to interpretation as to whether this is a shortage of skills, or of desire to do these jobs. It is arguable that pay and conditions are responsible for the shortages, rather than necessarily a shortage of personnel. This isn’t to say that there has been a dramatic shift of worker power, but the evolution of work represents greater choice for workers.  

There is no quick fix. The pandemic has given people a new perspective on flexibility and working remotely. It has changed habits and priorities and the pool from which to recruit has diminished post-Brexit. These events will have a long term, irreversible impact on the UK labour market and businesses will need to adapt if they are going to succeed in a newly shaped, global economy.

REUTERS |

Businesses are preparing for the new post-pandemic era where some form of return to office is very much front of mind. Although it would be a brave company to request a full-blown return to office five times a week so soon after the lifting of restrictions, we are seeing a much more proactive stance being taken where as much of “normal office life” as possible is being encouraged and implemented.

The pandemic has driven a wedge between the employee’s ideal working pattern and what the business demands of its employees. How long this wedge will continue remains to be seen, but for now this difference means only one thing: if staff do not like the new return to office rules, they will raise a flexible working request.

This might come in various forms, such as working at home for longer periods to varying the working hours or requests to work from home full time as they have done during most of the pandemic.

Is a day-one right a good idea?

Broadly, for any variation to the existing working pattern (whether as to time or location), the employee would need to make a flexible working request. A request can only be made by an employee (not consultants or agency workers) who has:

  • Been employed continuously for 26 weeks at the time of the request.
  • Not made a flexible working request in the preceding 12 months.

The request must also meet the prescribed requirements as set out under section 80F(2) of the Employment Rights Act 1996 (ERA 1996) and regulation 4 of the Flexible Working Regulations 2014 (SI 2014/1398).

If the current government consultation on flexible working becomes law, then the requirement to wait for six months before becoming eligible to apply will be removed. In the present climate, anyone applying for a new role may look to negotiate some form of flexible working (including, most popularly, home working for at least some of the week) as a condition of joining. This means employers are having to negotiate flexible working pre-employment, so a day-one right is not as dramatic as first envisaged.

What are the employer’s obligations?

If the employer intends to accept the flexible working request in its entirety, formal procedures become moot. However this is unlikely in many cases, which means it will need to follow the minimum procedural steps. The employer must:

  • Deal with the request in a reasonable manner.
  • Notify the employee of the decision within the decision period of three months.
  • Only refuse a request based on one or more of the statutory grounds.

(Section 80G(1)(b), ERA 1996.)

Requests should be dealt with in a reasonable manner, including meeting with the employee to discuss the request and allowing the employee to be accompanied to such meetings by a colleague or trade union representative.

Although appeal is not part of the statutory requirement, it is strongly advised that the employer provides an appeal procedure if rejecting the request. Allowing the employee to appeal and meeting with the employee to discuss the reason for the rejection will go towards the reasonableness requirement.

Match-up between the request and the company

The central argument consistently run by employees is that they have worked well during the pandemic, so why can this not carry on? The starting point is what the employer’s current policy is on returning to work. Since the lifting of restrictions on 19 July 2021, most employers have implemented hybrid measures where anything between 20% to 80% of the time is spent at home and the rest at work, depending on industry and sector.

The reality for most employers is that any further variation to their current policy will have to be dealt with strictly and consistently, so that flexible working does not run wild. To do this, employers will have to carefully balance the two factors: statutory grounds for refusal, on the one hand, and risk of inviting (primarily) a discrimination claim, on the other. (Failure to deal with the request itself can result in a compensation award of up to eight weeks’ pay by the employment tribunal.)

One of the core principles to draw out from case law is to avoid rejecting on technical grounds (for example, because the employee did not date the request), as doing so could invite other more serious claims (other than the failure to follow the statutory procedure) such as discrimination or constructive dismissal (or both). Requests on health grounds should also be considered carefully.

Whose side is the law on?

The current statutory regime for refusal (as well as the decision period) does give employers plenty of room for manoeuvre, but it is important to accurately record the factual bases for rejecting a request. What the employer wants to avoid is to allow the request on hearing an appeal because it did not properly investigate the facts. Bear in mind that until a decision is made either way, the employee is required to work in line with their pre-existing contractual provisions.

Another issue to consider is trial periods. There is no statutory obligation to offer a trial period, but the employee may argue that it was unlawful not to. If the employee requests a trial period but the employer decides otherwise, it is advisable to explain the reasons in the decision letter. If the employer can support its reasons with one of the statutory reasons for refusal, then all the better.

REUTERS | Toby Melville

In IX v WABE eV (Cases C804/18 and C341/19) EU:C:2021:594, the ECJ recently ruled that a ban on all visible signs of political, philosophical and religious belief could be justified by a policy of political, philosophical and religious neutrality in a particular workplace (a non-denominational school in Hamburg). It was made clear that a “neutrality” policy by an employer may represent a legitimate aim (although proportionality would have to be shown about the means for achieving it), as could a policy of “avoiding social conflict”. Essentially, it was not discriminatory to ask a Muslim member of the teaching staff not to wear a headscarf, and to discipline her for refusing to remove it, because the school and the municipality were fostering the individual and free development of children which could be undermined by wearing religious dress and symbols in front of them. The same rule did not apply to those in head office. 

We could talk about the case law on the limits of being able to manifest your religion in the workplace, or the competing strands that call for protection on the diversity front (I agree that this case represents the erosion of the prohibition of discrimination on the grounds of religion and belief through elevation of the rights of employers and, in this case, parents. So much for Eweida v United Kingdom [2013] ECHR 37). But I’d like to consider what it means for corporations increasingly to be defining what is an acceptable and desirable way for us to be expressing our ideology. 

This used to be (and still is) one of the remits of the state. As it was pointed out in the famous case of R (Begum) v Denbigh High School Governors [2006] UKHL 15 (about why a school uniform policy banning the jilbab was justified), part of the role of the state in the context of education is to enable children to choose the ideological space they wish to occupy, as between the dominant culture of their families and the dominant culture in society:

“A mandatory policy that rejects veiling in state educational institutions may provide a crucial opportunity for girls to choose the feminist freedom of state education over the patriarchal dominance of their families. Also, for the families, such a policy may send a clear message that the benefits of state education are tied to the obligation to respect women’s and girls’ rights to equality and freedom” (Professor Frances Radnay in “Culture, Religion and Gender” [2003] 1 International Journal of Constitutional Law 663, cited in Denbigh).

As corporations become more ideologically involved, attaching ethical allegiances to particular causes and organisations around sustainability, diversity and ethical labour standards, they invite workers to champion and celebrate certain causes, and to become vocal about supporting sponsored company values. Think of all the different symbols that have become commonplace as something to be shown and worn in the workplace: a pink wristband, a rainbow, a yellow ribbon, a moustache in November (you could think of them as acceptable dress code).

But are we at risk of being homogenised, in terms of our identities at work, if we are presented with predetermined “good causes” which we are invited to sign up to? What is wrong with an invite, you might say, no one is compelled to do anything. I suppose I am asking where the space is to work out, like the hypothetical girl in the Denbigh case example, where you stand with regard to your own personal dominant culture, and the corporation’s dominant culture, and to not always know where you stand.

The idea of the corporation as being the expression of human values, rather than a mere legal personality for Companies House purposes, is a relatively recent phenomenon but we seem to accept it has always been this way. Interestingly, many organisations now put “passionate” and “creative” at the heart of their search for candidates, which would not have been the case 20 years ago when strength of conviction was regarded as something private. Like an ideal love-match (possibly forged by an algorithm), the passionate worker and the passionate employer are destined to meet and set the world on fire. But what if the best lack all conviction and the worst are full of passionate intensity?

Could there be too much pressure for individuals to take on corporate ideology at the expense of the many ordinary aspects of their humanity, such as the ability to question, doubt and not know? Qualities which, according to a recent report on the robotisation of work, could make them more employable in future?

We are used to thinking of dress codes as something imposed by employers, for employees to conform to or not, with the debate usually centring around a person’s right to freedom to express or manifest their belief and the employer’s right to police individual expression in the interests of conducting business and serving their customers. But we are less used to the idea of the corporation itself being the sheer embodiment of a dress code which may offend the idea of space or neutrality within the workforce (and bear in mind that the absence of belief is capable of protection in law).

We are used to thinking of employers as wanting, potentially, to pursue a policy of neutrality, based on ethos or customer profile. But what if neutrality is the desired safe space for a significant group of employees in a workplace, not because they are discriminatory or indifferent to value-based agendas, but because they express their values differently to the ways identified by the corporation as appropriate and desirable?

The avoidance of social conflict was cited in WABE as a potential legitimate aim for an employer pursuing a policy of neutrality. But it seems that corporations are sailing right into the headwinds of social conflict by taking up so much ideological space as a core activity. By becoming the gatekeepers of appropriate expression of values and belief, they have to take a stand, or not, or be judged by their silence.

All views expressed are the author’s own.

Shireen Shaikh, Senior PSL, Taylor Wessing.

REUTERS | Benoit Tessier

The UK government has recently published its long-awaited response to its 2019 consultation on measures to combat sexual harassment in the workplace and strengthen existing legal protections. 

Most significantly, the government has committed to introducing a new proactive duty on employers to prevent sexual harassment in the workplace and to reintroduce protections from third-party harassment. It is also likely to extend the time limits for bringing claims under the Equality Act 2010 (EqA), but this is still being considered.  

The response is very light on detail about how these legislative changes will be implemented. Set out below are the headlines of the government’s response and what lies ahead for employers “as soon as parliamentary time allows”.  

Proactive duty to prevent sexual harassment 

The government intends to introduce legislation which requires employers to take positive, proactive steps to prevent sexual harassment. Currently, employers are under no proactive duty to prevent sexual harassment in the workplace. However, if an incident has taken place and an individual makes a claim, an employer will potentially be liable unless it can show it took “all reasonable steps” to prevent the sexual harassment.   

The main findings of the consultation were that many respondents were supportive of the new duty to prompt employers to take positive steps to prevent harassment. The #MeToo movement made it clear that existing laws with after-the-event liability were not enough and that more is needed to drive lasting cultural change. 

The government has said it anticipates that the new duty will require employers to take all reasonable steps to prevent harassment. Under this reformulation of existing laws, an employer would still be required to take reasonable steps (as they are now, assuming they want to be able to defend any claims) but could potentially be liable for failing to take preventative action without the need for an incident to have occurred.  

The response refers to the Equality and Human Rights Commission’s (EHRC) existing power to enter into legally binding agreements with employers who are found to be liable for breaches of the EqA and that there may be scope for “further EHRC action in this area”. It could be possible that employers find themselves the subject of enforcement action by the EHRC based on lack of policies, training or other steps to prevent sexual harassment, even if no incident has occurred. It is however anticipated that an incident would still need to have taken place before an individual could make a claim.  

The scope of this new duty will be clarified by a statutory code of practice, developed by the EHRC. Many respondents advocated that the steps themselves should be explicitly outlined, but the government has said this would remove the flexibility to take a proportionate approach. What taking all reasonable steps will involve will vary according to an employer’s size and resources. The government wants to motivate employers to put in place practices and policies which respond to the needs of their specific organisation, rather than creating a checkbox exercise.  

The response does not state whether the preventative duty will apply to all forms of harassment under the EqA, or whether protections against sexual harassment will be elevated over and above other forms of harassment. The original consultation paper referred to discussing options that would apply equally to all forms of harassment. Further clarity on this point is awaited.  

Legal protections against third-party harassment 

The government also intends to reintroduce protections against third-party harassment in the workplace. Historically, employers could be liable for harassment of their employees by third parties in the workplace (for example, a customer or supplier) under the “three strikes rule”, if the employee had been harassed on two prior occasions. This was repealed in 2013. It remains unclear in what form this protection will be reintroduced, but the government has confirmed that alongside this employer liability, it will introduce the defence of having taken all reasonable steps in response to a claim. There is no current indication it will be a proactive duty, as above.    

Again, the response is vague on whether the new duty will apply to all forms of harassment, or just to sexual harassment.  

Extending time limit to bring claims 

The government has said it will “closely” look at extending the time limit to bring claims under the EqA from three months to six months. This is said to be in relation to all claims under the EqA, not just sexual harassment.   

The general response to the consultation was in favour of increasing the time limit, with many respondents advocating for 12 months. The government stated that if an extension was to be introduced, a time limit of six months would be more appropriate than 12. This is in recognition of the need to strike a balance of ensuring access to justice while minimising the potential negative impact on employers. Any extension will lead to an increase in employer liability and also start to limit the reliability with which those involved can recall events, and the availability of documents and witnesses.  

It is not clear how this would intersect with other employment claims subject to a three-month time limit. For example, how easily could an employee claiming unfair dismissal amend their claim to tack on claims of discrimination? This would place an additional burden on employers to file an amended defence. 

Any extension in time limit is also likely to see an increase in the number of claims filed. The government is conscious of existing tribunal delays exacerbated by the COVID-19 pandemic and the need to first return the tribunal to previous levels of service before “additional loading” is added. 

Volunteers and interns 

The consultation also considered whether interns were adequately protected under the EqA and whether the EqA’s protections should be extended to volunteers. The government has ruled out changes in this regard on the basis that:  

  • Interns are already sufficiently protected by the EqA as they are likely to be considered “workers”.  
  • Extending protections to volunteers could create a disproportionate level of liability and difficulty for organisations which outweighs the benefit of the volunteering services provided. For instance, individuals helping out at one-off school events or charities.   

Next steps 

The above anticipated changes need a great deal of fleshing out. Crucially, it remains to be seen whether these new protections will be extended to other forms of harassment under the EqA.    

No timelines have been indicated and it is likely to be some time before any changes come into effect. We are still waiting on the legislation promised in 2019 in relation to the use of non-disclosure agreements (NDAs). This is another issue which the #MeToo movement shone a spotlight on.  

In the meantime, employers can start to refocus on the issue of sexual harassment as employees return to the workplace. Harassment can occur in many forms and employers should ensure that training and policies are up to date and consider how harassment can occur in a remote workforce.   

Employers can also review the EHRC’s technical guidance (published in 2020), on which the code is likely to be based. The guidance sets out the EHRC’s recommendations on steps employers should consider taking to prevent harassment. It calls for employers to be more inquisitive about what is going on in the workplace and recommended actions such as conducting risk assessments, carrying out regular feedback surveys and having nominated “guardians” who are trained to support a complainant through the process of making a complaint. When entering into third-party supplier contracts, employers could consider including contractual clauses regarding compliance with anti-harassment policies or requiring third parties to have given training to relevant staff.   

By Marie Hoolihan, associate at King & Spalding 

REUTERS | Kate Munsch

The Office for National Statistics has estimated that more than 1 million people in Britain have suffered or are currently suffering from “post-COVID syndrome”, commonly known as “Long COVID”. The National Institute for Health and Care Excellence (NICE), has defined post-COVID syndrome as “signs and symptoms that develop during or after an infection consistent with COVID-19, continue for more than 12 weeks and are not explained by an alternative diagnosis.” Long COVID represents the next great unknown when it comes to employers’ response to the COVID-19 pandemic and its impact on workforce management is potentially far-reaching. 

In recent guidance, Acas encourages employers to treat Long COVID like any other illness. However, that advice masks the fact that Long COVID is not like other serious illnesses regularly dealt with by HR professionals. Symptoms of Long COVID vary greatly, ranging from breathlessness or organ damage to depression or memory loss. There is still much debate in the medical literature concerning the causes of Long COVID, as well as, crucially, its prognosis. It will therefore be very difficult for employers to obtain clear medical evidence on which to base their decisions. The TUC has recently called for long COVID to be recognised as a disability and individuals with serious symptoms may well be disabled for the purposes of the Equality Act 2010, though, with virtually no evidence on the likely duration of symptoms (that is, whether the condition is likely to last for at least 12 months and therefore be “long term”), this is currently another unknown. A supportive (and prudent) employer however will err on the side of caution and will need to be thinking about appropriate adjustments for affected employees. Failure to make reasonable adjustments will put employers at risk of disability discrimination claims, and potentially other indirect discrimination claims based on the fact that certain groups sharing a particular characteristic may be at a higher risk of developing Long COVID. 

However, this may be easier said than done for employers. The uncertainty in the medical science makes it very difficult for employers to make informed decisions about the type of adjustments that may be appropriate to support employees suffering with Long COVID, or, with uncertain prognoses, about what adjustments the business can support over the indefinite term. This could potentially be very difficult for HR teams to manage, with costs (in financial and business terms) that may be difficult to estimate with any accuracy. 

There are some simple practical things that employers can begin to think about to prepare to support employees suffering Long COVID symptoms: 

  • Build your HR team’s and your managers’ knowledge. It is important that employees suffering from Long COVID are treated sensitively and supportively, and building understanding will help. The Faculty of Occupational Medicine of the Royal College of Physicians has released guidance on Long COVID for employers and managers. 
  • Maintain an open line of communication, and encourage employees to speak to managers or HR if they are struggling. Symptoms can vary significantly from one affected worker to another, and indeed from one day to the next. Therefore, it is important to have regular one-on-one check-ins with affected employees to understand their symptoms and their needs, and how you can support them to maintain their performance. 
  • Seek medical advice from occupational health. Although there are still many uncertainties in the medical community about Long COVID, particularly in relation to prognosis, an occupational health specialist may still be able to provide you with helpful advice as to what adjustments may help to support an employee with particular symptoms. 
  • Try to be flexible and innovative in the ways in which you provide adjustments. As discussed, Long COVID is an emerging issue and much of it is unknown. However, what is clear is that it will affect a lot of individuals, so, to remain competitive, employers will need to make efforts to retain key talent. 
  • Be wary of “COVID-fatigue” and factor this into your management strategy. In our experience dealing with long-term sickness cases, for example where employees are diagnosed with a condition like cancer, management are very supportive when first becoming aware of a concern, but can become less supportive where illnesses have been continuing for a long time. With what will potentially be a chronic condition, HR professionals should be working from the start to facilitate long-term solutions and ensure that managers and teams are able to adjust and support the individual over an indefinite time period. 
  • If it is not possible to support individuals with Long COVID, exercise caution when it comes to dismissal conversations. The same considerations will apply as in other capability dismissal situations. However, employers will need to be aware of the risk of a challenge on the basis of unreliable medical evidence, given the many unknowns with this condition.