Employment Law Focus

Can an employer really claim to have strong ESG credentials if they aren’t addressing societal issues like race equality and discrimination, and if they’re simply relying on policies and training?

How can employers meet the changing expectations of regulators, investors, employees, job candidates and clients?

The legal definition of race is much broader than many people realise. In this episode, Kanika Kitchlu-Connolly, co-chair of TLT’s BAME network, joins our employment team to discuss:

• Why this is so challenging but important for employers to get right
• The role of employee networks, from sharing information and lived experiences to raising issues, offering solutions, acting as a sounding board and holding employers to account
• The role of data, from helping employers to achieve their goals, to demonstrating what’s working, revealing barriers and defending claims
• Other ways to embed an anti-racism policy, from induction processes and exit interviews, to reverse mentoring and enabling people to become allies
• Complex legal issues, including those arising from “zero tolerance” policies, “banter”, harassment, indirect discrimination and positive discrimination

Our news update covers fire and rehire practices and the rights of agency staff.

Further reading:

• Acas: fire and rehire practices
• BITC: Race at Work Charter
• Rare Recruitment: Race Fairness Commitment
• EHRC: using positive action to address workplace disadvantage

Send us your questions and we'll answer them in a future episode – email [email protected] or Tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment

You can find out more about our employment team at tltsolicitors.com/employment

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Returns to work are set to become even more challenging with the advent of hybrid and remote working, to the extent that the traditional toolkit may no longer be fit for purpose.

In this episode, our employment and regulatory teams discuss five new challenges for HR and legal teams, and share their insights and advice surrounding:

• Occupational stress
• Supervision and performance management
• Personal injury
• Training and career development
• Long Covid

There are some recurring themes, including:

• The risk that employers underestimate their legal obligations;
• The need to think about the individual employee and take a tailored approach;
• The importance of effective employee communications; and
• Maintaining a complete record of steps taken to support employees and minimise health and safety and other risks. 

Our listener question addresses the timely topic of mandatory vaccinations at work, and what we’ve been seeing and advising clients.

Useful link: HSE guidance on home working

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Send us your questions and we'll answer them in a future episode – email [email protected] or Tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment

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After Me Too and Black Lives Matter, there are growing signs that disability could be the next recipient of a major social media movement, not to mention new legal duties for employers.

In the UK, the government has published a new National Disability Strategy including mandatory reporting for employers, the employment gap is impossible to ignore, and the Tokyo Paralympics sparked the campaign WeThe15 representing the world’s 1.2 billion people with a disability.

But are employers ready for this? Disability varies wildly from other areas of equality law, and as PageGroup CEO and disability rights champion Steve Ingham recently said, many employers simply think: “It’s too complex an issue to grapple with” and therefore don’t engage.

We discuss:

• Why this is such a complex area of employment law, and why employers should act now
• The merits of pay gap reporting and quotas, but more importantly, the need for an inclusive workplace culture
• Employer attitudes when deciding what is/is not a disability
• The different types of disability discrimination and knowledge tests
• The tricky business of using medical reports

We also explain cases covering:

• Concealment of a disability
• Assuming the knowledge of your agents
• “Reasonable” adjustments including cost

Our listener question looks at four-day working weeks and what employers should consider when defining the scope of a trial.

Useful link: EHRC Code of Practice

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Send us your questions and we'll answer them in a future episode – email [email protected] or Tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment

You can find out more about our employment team at tltsolicitors.com/employment

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Employee wellbeing has risen up the corporate agenda during the pandemic. However, this is set to become an even bigger issue in the coming months, as HR and legal teams navigate the impact of hybrid working, the right to work flexibly, the end of furlough, long Covid and more.

How can employers address the stigma around mental health and wellbeing? What does proportionate support look like? And what new risks and challenges do they face? 

In this episode, we discuss:

• The right to disconnect – what is it, how does it work, and could it work in the UK? With insights from Deirdre Lynch, partner at ByrneWallace LLP in the Republic of Ireland.
• Gender equality – with more women planning to work from home after the pandemic than men, is “proximity bias” and backwards progress on gender equality in the workplace inevitable?
• Remote line management – how can employers make sure they’re spotting the signs and giving the right support to line managers and employees working remotely?
• Common themes in employment tribunal claims – including the growth of psychiatric injury claims, and the importance of early intervention and being able to show that you’ve taken proactive steps to support employees with their mental health and wellbeing.

We also explain how TLT is using the Mindful Business Charter to reduce unnecessary stress in the workplace and show respect for colleagues’ wellbeing.

Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment

You can find out more about our employment team at tltsolicitors.com/employment

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Should HR be more involved in the design and rollout of workplace technology?

Will modern technology force us to replace roles (performed by people) with functions (performed by people, technology, robots and algorithms)?

At what point do employees start to resent technology impinging on their jobs? When it can do 10%, 20% or 30% of their role faster and better than they can?

These are just some of the questions we explore in this episode on workplace technology and its impact on employees. Jonathan Rennie and Sarah Maddock in our employment team are joined by Emma Erskine-Fox from our data privacy and cybersecurity team.

We dig into this complex topic and highlight the issues HR and legal teams need to be aware of, and share our thoughts, cases and practical tips.

Our news section covers a rare case where the tribunal gave some useful advice and a stark warning against allowing your equalities training to go “stale”.

Our listener’s question asks about dismissal and reengagement or “firing and rehiring”, which has become increasingly popular during the pandemic. Read our short guide to this practice. 

Note: since we recorded this episode, the court in the Netherlands has ordered Uber to reinstate the five British drivers who were struck off by robot technology.

Send us your questions and we'll answer them in a future episode – email [email protected] or Tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment

You can find out more about our employment team at tltsolicitors.com/employment

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The pandemic has required many people to balance work with heightened childcaring responsibilities.

For employers, this means considering the needs of working parents like never before – flexing policies, considering flexible working arrangements and other solutions and supporting people with their mental health and wellbeing.

The challenges are many and varied, from changing working arrangements to managing performance issues.

At the same time, the law recognises the need to be pragmatic and protect the interests of the business.

This is a big topic, but in this episode, we seek to answer some of the burning questions, including:

• What’s a socially and politically acceptable way of managing working parents during the pandemic and moving forward?
• How far must employers go to identify those who are struggling and need more support?
• What can we learn from the historic uptake of initiatives like shared parental leave, and should childcaring be a protected characteristic under the Equality Act?
• How has the gender balance in childcaring during the pandemic affected employees and the risk of a claim for direct or indirect sex discrimination?
• Is the UK’s legal framework for family friendly policies keeping pace with societal trends?

The pre-pandemic issues surrounding working parents have not gone away, and are still very much on the agenda. We consider what changes we might see in the law moving forward.

In our news section, we cover:

• New research from TLT showing an increase in employees using interim relief applications. These can be challenging and costly for employers to deal with, and many HR teams will never have seen one before.
• A recent reminder of the need to be flexible to help parents with childcare commitments – particularly where a flexible contract has already been agreed.

Useful links:

EHRC Working Forward campaign

Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment

You can find out more about our employment team at tltsolicitors.com/employment

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Employee monitoring isn’t just about using software to check that people are working hard enough. It can be digital, manual, well intended or even a regulatory requirement.

But whether you’re monitoring devices, collecting data to make employment decisions or using CCTV (or even microchips), there’s a whole host of data protection and employment risks to consider.

In this episode, we discuss:

• The growth of employee monitoring and why employers might use it
• The GDPR principles of transparency, necessity and proportionality
• Using employee records for positive discrimination
• The £32.1m fine against H&M for “excessive” monitoring
• The role of data protection impact assessments
• Who’s responsible for CCTV and employee monitoring in shared workspaces

Our news section covers:

Two legal challenges against Uber regarding automated decisions about employees

The ICO’s final guidance on data subject access requests, including when you can “stop the clock” and what constitutes a manifestly unfounded or excessive request

We also answer your questions about whether an employee can withdraw an access request and how employers should be preparing for the end of the Brexit transition period.

Useful links

TLT update on ICO guidance

ICO guidance on DSARs

Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment

You can find out more about our employment team at tltsolicitors.com/employment

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Unconscious bias (UB) is a growing legal issue for employers. It’s widely regarded as a barrier to equality, diversity and inclusion, and employment tribunals are looking more closely at motivation and bias in discrimination and harassment cases.

While it’s been talked about for a number of years, many employers still aren’t doing enough to reduce the risk of UB infiltrating people’s decisions about candidates and colleagues.

In this episode, we discuss:

• How does UB present itself as a legal issue?
• Ways of reducing the risk, including training, recruitment models and corporate culture
• What the employment tribunal looks for
• Proving UB and a direct causal link
• Discrimination and reasonable adjustments case law

In our news section, we cover:

• Facial recognition technology and a case showing just how far organisations must go to satisfy themselves that there isn’t a risk of bias
• The breakdown of working relationships between employees, and a surprising decision that a dismissal was fair, even though there was no dismissal process
• Employment status, including a finding of “false self-employment” – a stark warning ahead of possible job losses as a result of the pandemic
• The latest predictions about the Supreme Court’s pending decision in the Uber employment status case, due later this year

We also share our views on the government’s long-term “back to work” plan, including refusal to return to work, unfair dismissal, flexible working requests and indirect sex discrimination.

Further reading:

AI – ethical considerations and the privacy legal framework

Seven top questions on returning staff to work during the pandemic

Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment

You can find out more about our employment team at tltsolicitors.com/employment

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If you’ve enjoyed listening, please rate us and write a review.

HR teams need to plan for the inevitable rise of flexible and agile working after the Covid-19 pandemic.

Risks and questions abound, from discrimination and harassment to protecting employees’ physical and mental health and wellbeing.

In this episode, we look at:

• The right to request flexible working, and whether this goes far enough (compared to countries like Finland);
• The grounds for refusing a request, and whether this will be harder moving forwards;
• The risk of claims relating to indirect sex discrimination, health and safety (both mental and physical) and protected characteristics;
• Whether remote surveillance of employees is legal, and how to manage the risks; and
• The need for a robust approach to data protection and information security.

We also look at what recent news stories have taught us about the wide scope of equalities protections and the need for a dress code for virtual meetings.

In our listeners’ questions, we discuss the use of personal devices for work purposes when working remotely and the expected rise in whistleblowing claims as a result of the pandemic.

Useful links:

ICO’s tips on working from home securely

TLT’s ‘Fit for the future’ hub

Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment

You can find out more about our employment team at tltsolicitors.com/employment

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Whistleblowing is growing at an alarming rate. This is being driven by high profile cases as well as campaigns against systemic issues like data privacy and sexual harassment.

There has also been an increase in complicating factors – including whistleblowers raising grievances and additional issues arising part way through an investigation.

Having an effective whistleblowing policy is now considered fundamental to good corporate governance, culture and risk management. The decisions you make early on can have a significant impact on the risks and how the investigation unfolds.

Some of the biggest risks include financial and reputational damage. There is no cap on whistleblowing claims and they can become part of an organisation’s permanent digital footprint.

In this episode, we look at:

• how to identify a whistleblowing claim;
• complicating factors, including how to defend your reputation; and
• how to manage an investigation, including who should be involved; reporting to the regulator; your obligations towards the complainant and others; and data protection.

We also look at some recent news stories, including:

• a ruling that ethical veganism can be protected under the Equality Act;
• new technical guidance from the EHRC on tackling sexual harassment at work; and
• the use of love contracts and #MeToo Bots.

Useful links

Parental bereavement leave and other April 2020 changes
The Whistleblowing Commission’s Code of Practice
TLT’s coronavirus hub

Send us your questions and we'll answer them in a future episode – email [email protected] or tweet us using the hashtag #TLTemploymentpodcast and tag @TLT_Employment

You can find out more about our employment team at tltsolicitors.com/employment

Sign up to receive legal insights at tltsolicitors.com/signup

If you’ve enjoyed listening, please rate us and write a review.