Employment Law Bulletin – April 2023

Top tips when reviewing employment contracts

Employment contracts are the building blocks of the employment relationship. However, they are often not given the care or attention they deserve; have you given your contracts a health check recently? Here are our tips for some key areas to focus on: 

  • Do you have a signed contract on file for each employee? It would be difficult to hold an employee to terms contained in a document which you do not have any evidence of them agreeing to. 
  • Do your employment contracts comply with the requirements for written terms set out in section 1 Employment Rights Act 1996? These cover all the obvious areas such as pay, hours of work, place of work and holidays as well as less obvious areas such as trade union recognition and working outside the UK. More recently, they have been updated to also require the inclusion of details of training provision and paid leave.  
  • Do your employment contracts work for your business? Different businesses will have different areas of focus. For example, businesses with sales employees will want to consider including restrictive covenants to control the ability of leavers to take customers with them when they leave. Businesses with fluctuating demand will want to consider adding an express clause allowing them to place employees on short time working or lay them off. 
  • Do your employment contracts give you control in key areas? Look for terms requiring employees to return company property; a right to suspend employees; a right to monitor employees and a right to deduct from wages for monies owed by the employee. 

If you would like Roots HR to undertake a review of your employment contract templates, please contact us.  

TikTok told me to do it – the rising influence of social media platforms on employee behaviour 

According to a recent article in Forbes Magazine, younger employees are being influenced by workplace trends popularised on the social media platform, TikTok.  

These include ideas like ‘quiet quitting’ (doing only as much as is required to avoid performance management or dismissal); ‘bare minimum Monday’ (easing into the week by ‘going slow’ on a Monday) and ‘ghosting’ (where, much like with internet dating, employees frequently leave a job if a better offer is made elsewhere – with no consideration of loyalty).  

If these trends tell us anything it is that the traditional model of employees being grateful to have a job and embracing the 9 to 5 grind has been replaced by a host of different ideas about what it means to go to work. Recognising that the emerging workforce and leaders of the future place high value on work-life balance and wellbeing allows businesses to focus training and development in these areas. Employees will feel heard, helping to retain talent.   

Reflections on the 4-day working week trial 

Data from the UK’s large-scale 4 day working week trial was published in February 2023. The data emerged from a 6-month trial involving over 60 businesses of varying sizes across a wide range of industries. Each business involved moved its employees to a 4-day working week whilst maintaining salaries at a 5-day level. 

The headline results showed that 30% of the businesses who completed the trial intended to keep the arrangement permanently. There was some evidence that productivity and output increased. The trial had a positive impact on employee engagement. However, its impact varied widely from business to business. Participants in warehousing and manufacturing businesses struggled to keep up with demand. Customer-facing businesses (like call centres) also encountered issues with service levels with some needing to recruit additional headcount (at additional cost) to make sure that service levels did not drop.  

The outcome of this trial indicates that, much like the shift to homeworking caused by the pandemic, a reduced working week is easier for some types of business to accommodate than others.  

How to judge whether misconduct ‘arises from a disability’

Employees have a right not to be treated unfavourably by their employer because of something arising from a disability (unless the treatment can be justified). It is often the knock-on effect of a person’s disability which leads to problems in employment rather than the disability itself.  

Where an employee has a mental impairment, it is not always easy for an employer to know what behaviour ‘arises from’ a disability and what behaviour is just poor behaviour.  

In McQueen v The General Optical Council, Mr. McQueen had various neurodiverse impairments. He was disciplined for a pattern of aggressive behaviour at work.  

He brought a claim alleging that he had been treated unfavourably for this aggressive behaviour, which he claimed arose from his disabilities. The medical evidence stated that his disabilities meant that he was more likely to lose control when stressed. Despite this, the Employment Tribunal decided that the aggressive behaviour was not something which arose from his disabilities at all.  The Employment Appeal Tribunal agreed that this assessment could stand.  

They noted that the test of whether behaviour ‘arises from’ a disability is a wide one and does not require the disability to be the sole or main reason for the behaviour but found that there was no need for the ET to assess multiple factors contributing to the behaviour in this case as they had concluded that the disabilities had no impact on the behaviour – so did not ‘arise’ from them at all.  

This case, as with all cases looking at discrimination arising from a disability, is fact specific but there are some useful points that employers can take away: 

  • You do not have to accept your employee’s self-assessment of their impairment and what arises from it. Obtaining medical guidance, such as an occupational health assessment will give you a more objective view. 
  • A disability does not have to be the only reason for the behaviour for the behaviour to ‘arise’ from it. The ET’s conclusion that the disabilities had no impact on Mr. McQueen’s behaviour was a bold one. It is wise to exercise caution where the position is not clear. 
  • Employers will not be liable even if they do treat an employee unfavourably for a reason arising from their disability, if they can justify their actions.  

And finally, Spring 2023 Budget: Get back to work! 

There was a definite theme running through the employment proposals announced in the Spring 2023 Budget: ‘get back to work’! This was approached from various angles but one of the key announcements was the proposed introduction of ‘returnerships’ (later life accelerated apprenticeships) for those over 50 returning to the workplace following a break. 

The impact of this on employers is largely indirect and hopefully positive. A larger prospective workforce means a larger and more diverse pool of potential candidates for roles. As a society we are living longer, and UK productivity relies on using talents of all ages and re-engaging and potentially re-training those who may have already had a ‘first career’. Personnel Today reports that the over 50s are the fastest growing demographic in the UK – numbering 27.9 million people by 2030. 

There are factors that will need to be considered. For example, what rate of pay will those on ‘returnerships’ be entitled to? Will they be treated in the same way as other apprentices? Employers will also need to consider specific needs and priorities of those returning to work over the age of 50. They might favour flexible working or job-sharing so you may face an increase in flexible working applications. There could also be an increased need for occupational health support if those returning have age-related health issues. An employer’s obligation not to discriminate on grounds of age, sex or disability will apply in the context of returnerships just as it does to other areas of employment.