We are very pleased to bring you this employment law update from Paul Clark, Partner and Head of Employment at Jacksons Law Firm.
2022 is shaping up to be another exciting year for Employment Law with the promise of reforms which have the potential to shake up the system as much as the introduction of the Equality Act 2010 and 2017’s abolition of Employment Tribunal fees.
One of the key aims of the eagerly anticipated Employment Bill is to address the imbalance between workers and employees which derives from working practices that have evolved in the gig economy. Although conversation on this issue died down during the global pandemic, as the government’s Good Work Plan faded into memory, we expect the Bill to contain a range of measures aimed at protecting casual workers while beefing up day one rights, such as the right to request a predictable contract after 26 weeks’ service and the removal of the same qualifying period to request flexible working. So far as employment status is concerned, the majority of recent case law has focussed on the worker/self-employment boundary – could enforced contractual stability lead to a rise in cases at the employee/worker end of the spectrum? As it seems that we will be waiting a little longer for the clarified employment status tests promised back in 2018, the onus remains on employers to review zero hours contracts and casual worker agreements to ensure that they reflect the reality of such relationships.
In practice, a lot has changed since pre-Covid times. Homeworking has heralded an undeniable shift in the balance of power between employers and employees, with many employees now valuing flexibility and a work-life balance as much as earnings. Rises in the cost of living may yet check this development, to the unfortunate detriment of those on lower wages, however, being known as a good employer rather than talking-the-talk has never been such a business asset, not only for recruitment purposes but also for retaining key staff.
The stakes are high then for employers. As the clock strikes noon, should you be quick on the draw (of flexible working) or the drawings? There is little doubt that a hybrid-working policy which maintains some element of homeworking will be attractive to staff. From a discrimination point of view, it may be necessary – as the Employment Appeal Tribunal recently reminded us in a sex discrimination claim involving flexible working, the ‘childcare disparity’ still very much exists. Be careful not to rush in though as raising expectations by introducing new arrangements which prove to be unworkable has the potential to create all sorts of other issues.
A couple of final thoughts. If you are re-organising, which many businesses may be considering as staff return in greater numbers or in response to market forces, be wary of inadvertently creating a redundancy situation through making material changes to existing roles – patience and consultation are key. Alternatively, if disciplinary proceedings are envisaged, the importance of conducting a fair investigation has been re-emphasised in several recent cases, which may mean some refresher training is necessary for managers who conduct disciplinaries, particularly if they are out of practice.
Jacksons Shield is a retainer service which provides comprehensive support on Employment Law and HR matters for businesses. For more information on Jacksons Shield or our other services, please contact Paul Clark, Head of Employment (0191 2069626/01642 356500) or pclark@jacksons-law.com.
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