Workplace non-disclosure agreements: what they cover, what they cannot, and what is changing

Few employment law topics have evolved as quickly in recent years as the non-disclosure agreement, or NDA. Once a quietly drafted provision in a settlement document, the NDA has become a focal point of public debate, parliamentary reform and regulatory scrutiny. Whether you are an employee being asked to sign one, or an employer reviewing your settlement templates, it is worth understanding both what these agreements can legitimately do and the new limits Parliament has placed on them.

This article focuses on the position in England and Wales.

What a workplace NDA is

An NDA, sometimes called a confidentiality clause or “gagging clause”, is a legally binding promise to keep specified information confidential. In a workplace context, it usually appears in one of three forms: a standalone confidentiality agreement (often signed at the start of employment); a clause within the employment contract; or a clause within a settlement agreement signed when employment ends or a workplace dispute is resolved.

The scope is generally a mix of:

• defined confidential information such as trade secrets;
• client lists, pricing, intellectual property and business strategies;
• the terms and circumstances of any settlement, including the sum paid;
• non-disparagement of the employer, its staff and customers; and
• a list of “permitted disclosures” identifying the people the worker may still speak to, such as their lawyer, immediate family, doctor, or relevant regulator.

Acas guidance on non-disclosure agreements sets out clear examples for both employers and workers.

The legitimate uses

NDAs are not, in themselves, controversial. Properly drafted, they protect genuine commercial value, allow workplace disputes to be resolved swiftly and privately, and can also work in the worker’s favour by keeping the circumstances of a departure out of the public domain. For both parties, they offer the certainty of a clean break.

What an NDA cannot do, and never could

Long before the recent statutory reforms, the courts and regulators had drawn clear lines on what an NDA could not achieve. Under the common law, no NDA can prevent someone from reporting a crime to the police. Under section 43J of the Employment Rights Act 1996, any clause purporting to stop a worker making a “protected disclosure” (whistleblowing in the public interest) is void. The Government also publishes guidance on whistleblowing for employees, explaining how those protections operate.

The Solicitors Regulation Authority has issued a warning notice stating that solicitors must not use NDAs to prevent disclosures to regulators, professional advisers or law enforcement, and that doing so may constitute professional misconduct.

Recent changes already in force

Three significant statutory reforms now sit alongside these established limits.

First, section 17 of the Victims and Prisoners Act 2024 took effect on 1 October 2025. It renders void any provision in an agreement (including a workplace NDA or settlement clause) that would prevent a victim of crime, or someone who reasonably believes they are a victim, from disclosing information about the offence to specified recipients. Permitted recipients include the police, qualified lawyers, victim support services, regulators, and close family members for emotional support. The protection applies only to NDAs signed on or after 1 October 2025; agreements signed before that date remain governed by the previous law. Detailed Government guidance on these changes is available on GOV.UK.

Second, the Higher Education (Freedom of Speech) Act 2023 commenced on 1 August 2025. It prohibits registered higher education providers in England from using NDAs with staff, students, or visiting speakers in relation to complaints of sexual abuse, sexual harassment, sexual misconduct, or other bullying or harassment. Unlike the workplace reforms discussed below, this ban is absolute, with no equivalent to an “excepted agreement” mechanism.

Third, since 6 April 2026, sexual harassment has been expressly added to the list of “qualifying disclosures” that attract whistleblowing protection. This change was introduced by the Employment Rights Act 2025, which amended section 43B of the Employment Rights Act 1996. In practice, a worker who reports sexual harassment (whether past, present or anticipated) is now clearly protected from detriment and unfair dismissal, provided the usual public interest test is met. An NDA cannot be used to override that protection.

Changes still to come

The most far-reaching workplace reform is yet to take effect. The Employment Rights Act 2025 will, when commenced, void any agreement that prevents a worker from making allegations or disclosures about harassment (including sexual harassment), discrimination, or a failure to make reasonable adjustments. The provisions will apply to the employer’s response to such conduct as well as to the conduct itself.

Commencement is currently expected in 2027, following a government consultation on the supporting regulations which closes on 8 July 2026. The reforms will not apply retrospectively to existing agreements.

A narrow carve-out for “excepted agreements” is under consideration. Current proposals suggest that these will need to be initiated by the worker, supported by independent legal advice, and subject to a cooling-off period (the Government has cited Ireland’s recent reforms, which include a 14-day window, as a reference point). Even where an excepted agreement is in place, the worker will retain the right to make disclosures to specified people and bodies.

These changes sit alongside the existing duty introduced by the Worker Protection (Amendment of Equality Act 2010) Act 2023, which has been in force since 26 October 2024 and requires employers to take reasonable steps to prevent sexual harassment in the workplace. From October 2026, the Employment Rights Act 2025 will raise this duty to “all reasonable steps” and reintroduce employer liability for third-party harassment of workers.

What this means in practice

For employees, the practical message is that more recent NDAs offer less scope to silence concerns about misconduct than older ones did. If you are being asked to sign an NDA today, particularly as part of a settlement, you should expect to see clearly drafted carve-outs covering legal advice, regulators, the police, family support and protected disclosures. Settlement agreements already require independent legal advice before they can take effect.

For employers, this is a sensible moment to review template employment contracts and settlement agreements. Clauses drafted from older precedents may not reflect the section 17 carve-outs already in force and will certainly need updating before the Employment Rights Act NDA provisions commence. Settlement strategy may also need a rethink: the certainty an NDA once provided is narrower in scope, and the recent expansion of whistleblowing protection means harassment-related concerns are increasingly difficult to keep contractually private.

Pulling the threads together

The legal landscape around workplace NDAs is shifting, and a one-size-fits-all approach to drafting or signing is no longer safe. Whether you are entering into an NDA, reviewing a precedent, or seeking to understand the implications of one already signed, the detail matters. If you have any questions about a workplace NDA, get in touch with us for advice tailored to your circumstances.

Confusion as Companies House rolls out identity checks for directors 

Company directors are being urged to familiarise themselves with new identity verification requirements being introduced by Companies House, as confusion is reported around how and when the checks must be completed.

The new rules form part of the Economic Crime and Corporate Transparency Act 2023, a major reform aimed at tackling fraud and improving transparency in the UK’s corporate register. Under the changes, company directors and those appointed as people with significant control (PSCs) will need to verify their identity before certain actions or filings can be made at Companies House.

The verification process began rolling out on 18th November 2025, but this marked the start of a 12-month transition period rather than a single deadline, something that has led to uncertainty among many directors.

“Most people understand the reasoning behind the changes and are happy to comply,” said Miss Amy Cusworth, a specialist in company law with Rotherham-based Oxley & Coward Solicitors. “But in practice we are finding that many directors are unclear about exactly what they need to do, how to do it, and when.”

One of the most common misunderstandings, particularly for sole directors, is that identity verification is a single step.  In reality, the system operates in two stages.

First, individuals must verify their identity using the Companies House verification service through GOV.UK One login, or via an authorised agent such as an accountant or solicitor. Once this is completed, they receive a unique 11-character personal code which confirms their identity.

Then, the code must then be submitted to Companies House to link the verified identity to each directorship or PSC role the individual holds, which is undertaken via the company’s annual confirmation statement process.

“You only need to verify your identity once,” Miss Amy Cusworth explained. “But your personal code must then be provided for each company role you hold, for example if you are both a director and the PSC for a company, or a director for different companies, so that Companies House can connect the verification to the correct records.”

Further confusion has arisen because the timing of verification varies depending on an individual’s role.  A director who has been newly appointed since 18th November 2025 must be validated before their appointment is filed with Companies House.

For existing directors, it must be completed before the company submits its next confirmation statement.

For directors who are also PSCs in the same company, the verification window is linked to the company’s annual confirmation statement date. In that case, individuals have a 14-day period starting the day after the confirmation statement date to provide their personal code as PSC.

But PSCs who are not directors must instead complete verification during the first 14 days of their birth month and new PSCs added to a company’s register must provide their verification details when first added to the register or within 14 days of receiving a so-called ‘direction letter’ sent by Companies House after the appointment.

Some users have also reported difficulties navigating the digital process, particularly where the identity verification app involved in the digital validation process interacts with the GOV.UK website.

Added Miss Amy Cusworth: “Despite the teething problems, directors will have to get their heads around the process and comply with these new rules which are fundamental to future company administration.

“Ultimately the aim is to ensure that the people behind UK companies are properly identified.  For most legitimate businesses it should simply become another routine compliance task, but it is worth checking the details early, so you do not get caught out by the timing, in particular for any PSC.

“The one thing you cannot do is ignore these identity verification requirements, as you may be committing an offence and be subject to a financial penalty or fine. There will also be a note added to your name on the public register.”

Directors and PSCs can check their specific identity verification deadlines by logging into the public register for Companies House and there is online guidance on timings for when you need to verify.

[This is not legal advice; it is intended to provide information of general interest about current legal issues.]

Does the Employment Rights Bill scare you? Oxley & Coward simplify some of the main changes in their interview with the Barnsley & Rotherham Chamber of Commerce.

What the YouTube video here

Chancellor’s seeks stability in turbulent times

On the stump with the Spring Statement as government chases stability and growth

Chancellor Rachel Reeves delivered a punchy Spring Statement, flagging the importance of stability at home amidst growing global uncertainty.  Intended as an opportunity to shine a light on improved forecasts, global politics showed how it can intrude on even the most carefully framed domestic narrative, with the sudden escalation of hostilities in the Middle East over the weekend forcing a recalibration of tone.

The Chancellor instead started with the turbulence of an increasingly dangerous world, thanking the armed forces and highlighting the immediate concern of conflict in the region raising the prospect of higher oil and gas prices.  The knock-on effects for inflation, household bills and business input costs, are a material risk sitting largely beyond domestic fiscal control.

But turning to the latest forecast from the Office for Budget Responsibility (OBR) the Chancellor was bullish, as she announced an improvement in the UK’s fiscal position compared with the autumn statement.  Borrowing this year is projected to be nearly £18 billion lower than previously expected, and its lowest level in six years, falling below the G7 average for the first time in more than two decades.

At each prediction, Reeves flipped from fiscal statement to stump speech as she attributed the success of the government’s policies by comparison with the former Tory government and plans laid out by the Reform and Green parties.

Headroom against the government’s fiscal stability rule has widened to almost £24 billion, while debt interest spending next year is expected to be around £4 billion lower than forecast in the autumn.

On the wider economy, the OBR forecasts that GDP per capita will grow by 5.6% over the course of the Parliament, an upward revision to earlier expectations.

As in last year’s Spring Statement, there were no immediate tax changes, with Reeves flagging the importance of stability through a single, annual review each autumn, to avoid an additional period of speculation and uncertainty.

Said commercial expert Miss Amy Cusworth of Rotherham town solicitors Oxley & Coward Solicitors LLP: “There were no big tax announcements, but ongoing fiscal drag, and the gradual restriction of reliefs already scheduled, mean the taxation picture continues to shift.

“Pundits again predicted revision to inheritance tax, and many anticipated a shift on R&D reliefs for business or on student loan arrangements, and while there’s no change for the present, these issues are less about ‘if’, and more about ‘when’.  Action should be considered around succession and inheritance tax planning, timing of capital expenditure and any review of remuneration or profit extraction strategies for business owners.”

Miss Amy Cusworth: “Everyone recognises the need to use annual allowances, such as for ISA’s, Capital Gains Tax or annual pension contributions, but there are also opportunities around gifting assets, setting up trusts or investigating the value of life insurance to offset future inheritance tax, all of which could materially impact future outcomes.”

The full Spring Statement is available here and the OBR statement here

[This is not legal advice; it is intended to provide information of general interest about current legal issues.]

Planning for the Future: What to Include in a UK Shareholders’ Agreement

A shareholders’ agreement is one of those documents that often feels unnecessary at the outset, when everyone involved is aligned and optimistic about the future. In practice, it can be one of the most important documents a company ever puts in place. A well-drafted agreement sets clear ground rules for how the company is run, how decisions are made, and what happens when circumstances change.

This article examines the key provisions typically included in a UK shareholders’ agreement and explains why they matter.

The role of a shareholders’ agreement

A shareholders’ agreement is a private contract between some or all of a company’s shareholders. It sits alongside the company’s Articles of Association and addresses matters that are often too detailed, too commercial, or too sensitive to include in the Articles. Its purpose is to provide clarity, manage expectations, and reduce the scope for disputes as the business grows or changes.

Company management and governance

Most agreements begin by addressing how the company is managed and how key decisions are made.

Decision-making provisions typically distinguish between matters the board can handle and those that require shareholder approval. Reserved matters often include issuing new shares, selling major assets, borrowing above agreed limits, or changing the nature of the business. It is common for these decisions to require a higher voting threshold, such as a supermajority, rather than a simple majority.

The agreement will also set out how directors are appointed and removed, whether particular shareholders are entitled to nominate a director, and how board seats are allocated. It will often cover director remuneration, service contracts, and decision-making at board level to ensure transparency and consistency.

Share ownership and transfer of shares

Rules governing share ownership and transfers are at the heart of most shareholders’ agreements.

Restrictions on transfers are used to prevent shares from being sold to third parties without the consent of the existing shareholders. Pre-emption rights are fundamental, giving existing shareholders the first opportunity to purchase shares offered for sale or newly issued, helping to prevent unwanted dilution or changes in control.

Drag-along and tag-along rights are also common. Drag-along provisions allow the majority shareholders to compel minority shareholders to sell their shares on the same terms as the company’s sale. Tag-along rights protect minority shareholders by enabling them to join a sale and exit on equivalent terms.

Leaver provisions address what happens when a shareholder leaves the business due to resignation, retirement, death, illness, or insolvency. These clauses often distinguish between good leavers and bad leavers, with different valuation outcomes depending on the circumstances. Closely linked to this are valuation mechanisms, which set out how shares will be valued in various scenarios, helping to avoid disputes at a difficult time.

Financial arrangements

Financial provisions help ensure that everyone understands how the company will be funded and how returns are distributed.

Funding clauses set out how additional capital will be raised, whether shareholders are obliged to contribute, and what happens if someone cannot or will not do so. Dividend policy provisions specify when profits may be distributed and whether profits are likely to be retained for growth.

In some companies, particularly those with external investment, liquidation preference clauses may be included. These clauses determine who is paid first and in what order if the company is sold or wound up.

Protecting shareholders

A shareholders’ agreement often includes specific protections for minority shareholders. These may include veto rights over certain key decisions, enhanced voting rights, or additional consent requirements to prevent unfair prejudice.

Information rights are another essential protection. These provisions ensure that shareholders receive regular financial information, management accounts, and updates on the company’s performance, even if they are not involved in day-to-day management.

Restrictive covenants

Restrictive covenants are designed to protect the business if a shareholder becomes involved with a competing venture. Non-compete and non-solicit clauses may apply during a shareholder’s ownership and for a defined period after the shareholder exits. These clauses must be carefully drafted to ensure they are reasonable and enforceable under UK law.

Dealing with disputes and deadlock

Even with the best intentions, disagreements can arise. Deadlock provisions are critical when shareholdings are evenly split. These clauses set out mechanisms for resolving impasses, such as escalation procedures, mediation, or structured buy-out options.

Many agreements include alternative dispute resolution clauses that require mediation or arbitration before court proceedings can begin. This can save time, reduce costs, and prevent damage to business relationships.

Why taking the time matters

A well-structured shareholders’ agreement can prevent disputes before they arise, protect investments, and provide a clear framework for addressing exits and unexpected events. It allows shareholders to agree the rules of engagement while relationships are strong, rather than trying to resolve issues in the heat of a dispute.

Because every business and shareholder group is different, shareholders’ agreements should be tailored to the specific company and its objectives. Anyone considering putting one in place or reviewing an existing agreement should consult their solicitor to ensure the document accurately reflects their interests and is consistent with the company’s Articles of Association.

Employment Rights Act is a call to action for employers 

A new year, a new employment framework: what employers need to know about the Employment Rights Act passed by parliament in December 2025.

By Amy Cusworth, employment lawyer at Rotherham-based Oxley & Coward Solicitors LLP.

The start of 2026 brings with it a significant shift in the UK employment landscape, following the passage of the Employment Rights Act 2025. After months of parliamentary ping-pong between the House of Commons and the House of Lords, the legislation finally received Royal Assent in December, marking one of the most substantial updates to workplace rights in a generation.

And for employers, the message is clear: while most of the changes will be phased in over the next two years, early awareness and preparation will be critical. The Act is designed to modernise employment protections, improve job security and strengthen enforcement – but it also introduces new compliance obligations and, potentially, a higher risk of disputes if processes are not robust.

A phased rollout, not an overnight change

Although the Act is now law, most of its provisions will not take effect immediately. The government has committed to a phased implementation programme, with most reforms coming into force on standard April or October commencement dates.

Key early changes include the repeal of the Strikes (Minimum Service Levels) Act 2023 and parts of the Trade Union Act 2016, which took effect shortly after Royal Assent. Other measures, including day-one statutory sick pay and paternity leave, and the launch of the new Fair Work Agency, are expected from April this year.

One of the most closely watched reforms, however, will not take effect until 1 January 2027: the reduction of the qualifying period for unfair dismissal claims from two years to six months. The government has also confirmed that the current cap on unfair dismissal compensation will be removed.

Unfair dismissal: earlier exposure for employers

The change to unfair dismissal rights represents a meaningful shift in risk management for employers. While the government stepped back from making unfair dismissal a day-one right, a six-month qualifying period still significantly shortens the window during which employers can terminate employment without the risk of a claim.

Combined with the removal of the compensation cap and the extension of the time limit for bringing Employment Tribunal claims from three months to six months, employers may see an increase in both the volume and value of claims. This is particularly relevant given the existing backlog within the tribunal system, with such matters likely to remain unresolved for long periods.

For businesses, this places greater emphasis on consistent performance management, clear documentation, and fair procedures right from the start, through probationary periods and beyond.

Opening up to trade union engagement and tighter redundancy consultation

Stronger collective redundancy rights will see the introduction of tighter requirements on consultation.  Another area that will require close attention from employers is the Act’s extension of trade union rights and engagement. The new framework lowers barriers to union access and strengthens protections for union activity, meaning employers may need to be more proactive in how they manage relationships with recognised unions and how they respond to requests for engagement.

Even where a workforce has historically had limited union involvement, organisations will need to ensure managers understand the new rights introduced by the Act, handle communications carefully, and apply policies consistently, as missteps in this area are likely to attract scrutiny once the reforms are fully in force.

Zero-hours contracts, flexibility and guaranteed hours

The Act also targets what the government describes as historic one-sided flexibility on the part of employers, with new rights for workers on zero-hours contracts, including access to guaranteed hours, reasonable notice of shifts and compensation for short-notice cancellations. Similar protections will apply to agency workers.

These measures are intended to provide greater security for workers, and employers in sectors that rely heavily on flexible staffing – such as hospitality, retail and logistics – will need to review workforce models carefully to ensure compliance without undermining operational needs.

Family-friendly rights and workplace protections

A number of reforms expand existing family-friendly and wellbeing protections.  For Statutory Sick Pay, the Lower Earnings Limit and the waiting period have been removed.  Paternity leave and unpaid parental leave will become day-one rights, and a new right to unpaid bereavement leave will be introduced, including for pregnancy loss before 24 weeks.

The Act also strengthens protections aimed at improving gender equality in the workplace. Large employers will be required to produce action plans setting out how they are addressing gender pay gaps and supporting staff through menopause, signalling a more structured and transparent approach to equality issues. Alongside this, new safeguards will limit dismissal for pregnant employees, those on maternity leave, and for at least six months after returning to work, except in defined circumstances, meaning employers will need to focus on fair treatment and careful decision-making during employee key life stages.

There are also stronger protections around harassment, requiring employers to take “all reasonable steps”, rather than simply “reasonable steps”, to prevent sexual harassment, including harassment by third parties. This change is likely to increase expectations around training, policies and workplace culture.

Enforcement and the Fair Work Agency

Another significant development is the creation of the Fair Work Agency, which will bring together enforcement of the National Minimum Wage, holiday pay, agency rules and labour exploitation. The Agency will have expanded powers, including the ability to bring tribunal claims on behalf of workers and impose civil penalties.

For employers, this signals a more proactive enforcement environment and reinforces the importance of compliance across pay, working time and contractual arrangements.

Planning ahead

Business reaction to the Employment Rights Act has been mixed, with concerns around cost, administration and flexibility needing to be balanced against the government’s aim of creating a more secure and productive workforce. What is clear, however, is that the scale of change warrants early engagement.

This is not a single reform but a package of changes that will reshape how employers manage risk, people and processes over the next few years. The phased timetable gives businesses breathing space, but those that wait until changes are live may find themselves on the back foot.

As 2026 begins, the priority for employers is to move on from the speculation and headlines of last year, towards a structured view of what the Act requires, when changes will take effect, and how policies, procedures and management practices should be reviewed in readiness.

[This is not legal advice; it is intended to provide information of general interest about current legal issues].

Flexible Working Requests: A Guide for Employers and Employees

Flexible working has become a key part of the employment landscape. Both employers and employees benefit when work arrangements accommodate personal commitments, operational requirements, and evolving workplace norms. This article details the statutory process for flexible working requests in the UK, outlines what both parties need to do, and highlights best practices to ensure success.

What is a statutory flexible working request?

A statutory flexible working request is a formal application by an employee to alter their contract concerning when, where, or how much they work (for example, changing hours, times, or the location of work). According to ACAS guidance, flexible working encompasses arrangements such as part-time work, working from home, job-sharing, compressed hours, or hybrid working.

From 6 April 2024, all employees can make a statutory request from their first day of work. There is no longer a required minimum period of service before they can make a request.

Employees may now make up to two such requests in any 12-month period.

How to make a statutory request

Employees wishing to make a statutory request should meet the requirements to ensure the request is valid and correctly processed. The following steps outline what both employees (and employers) need to understand.

1. Submit a formal written request

The employee must submit the request in writing (by email or letter). It should be clearly titled as a “statutory request for flexible working.”

2. Include key information

The request should contain at least the following:

• The date of the request.
• A clear statement of the change you are seeking (for example, change in hours, start/finish times or place of work).
• The date on which you would like the requested change to take effect.
• If you have submitted a previous statutory flexible working request to this employer, the date of that request.

3. Check eligibility

Since April 2024, the right has been available from the first day of employment. You may only submit one live request at a time (i.e., you cannot submit a second before the first has been addressed), and you are limited to two requests in a 12-month period.

4. Suggested good practice

While not strictly necessary, it is advisable for an employee to:

• State the reason why the change is being requested (for example, family commitments, health or commuting issues).
• Consider and outline the impact of the change on your role and the employer and suggest how any disruption could be managed. Even though you are no longer legally required to specify the business impact, doing so may support your case.
• Submit the request with reasonable notice to ensure proper consideration.

Employer’s process for dealing with a request

1. Review the request

Once a statutory request is received, the employer must handle it in a “reasonable manner” in accordance with the Employment Rights Act 1996 and the updated ACAS Code of Practice.

2. Consultation and decision

If the employer intends to refuse the request, the law now requires them to consult with the employee before making a decision.

The employer must notify the employee of the decision – whether to accept, reject (with reasons) or propose an alternative arrangement. The decision period is within two months of the request date (unless both parties agree to extend).

If the request is accepted, the employer should send written confirmation, set the start date of the new arrangement, and update the employment contract with the new terms within 28 days of the agreement.

3. Valid business reasons for refusal

An employer may only refuse a statutory request based on one or more of the eight permitted business grounds outlined in legislation and the ACAS Code. These include:

• The burden of additional costs
• The inability to reorganise work amongst existing staff
• The inability to recruit additional staff
• A detrimental impact on quality or performance
• A detrimental effect on the employer’s ability to meet customer demand
• Insufficient work for the periods proposed
• Planned structural changes to the business.

When refusing, the employer should clearly state the business reason(s) in writing and inform the employee of their right to appeal (if an internal appeal process exists). The employer must demonstrate that the request has been properly considered — employment tribunals will consider whether the ACAS Code was followed.

Informal (non-statutory) requests

Even if the employee is not eligible to make a statutory request (for example, because they are not classified as an “employee” under employment law), they can still request flexible working informally. In such cases, the employer is not strictly obliged to follow the statutory procedure or to give business-justified reasons, but good practice suggests that they should give proper consideration.

Rights and protections for employees

• Employees have the right from their first day of employment to make a statutory flexible working request.
• An employer must not subject the employee to a detriment or dismiss them because they have made (or proposed to make) a statutory request.
• Where a request relates to a disability or caring responsibility, the employer’s obligations under the Equality Act 2010 may also apply.

Why flexible working matters

From an employer’s perspective, being receptive to flexible working can bring a variety of advantages: improved recruitment and retention, increased employee engagement, greater inclusivity, and a better work-life balance for staff.

For employees, having the opportunity to work flexibly can reduce commuting time, support caring responsibilities, improve well-being, and enable a better balance between work and other life commitments. The key is for the arrangement to be workable for both parties.

Practical tips for employers and employees

For employees:

• Submit your request early and include all necessary details (date, change sought, start date, previous requests).
• Consider how you frame the request so that it demonstrates awareness of business needs (even though you are not strictly required to include the business impact).
• Keep a record of the request and any responses.
• Get ready for a meeting where your employer might want to discuss the request.
• If the request is refused, review the reason provided and whether it complies with the permitted business grounds. Consider whether you have grounds for an appeal or further discussion.

For employers:

• Ensure you have a clear and accessible flexible working policy and procedure, even though informal arrangements are allowed.
• Respond to statutory requests within two months or agree to any extension with the employee in writing.
• If you plan to refuse, conduct a consultation meeting with the employee before reaching a decision.
• If rejecting a request, clearly outline the business reason(s) in writing and inform the employee of any internal appeal process.
• Record the decision, update contracts if applicable, and communicate clearly whether an arrangement is accepted (in full or in part) or refused.
• Follow the ACAS Code of Practice in spirit – tribunals may consider whether the employer adhered to the Code.

Reaching the Right Balance

The statutory right to request flexible working is now more accessible than ever, thanks to the changes introduced in April 2024. Employees can make a request from day one, may submit up to two requests a year, but can only have one active request at a time. Employers must act reasonably and promptly, consult with the employee before refusing, and provide genuine business reasons if they reject the request.

By approaching flexible working requests constructively and collaboratively, both employers and employees can reach agreements that promote productivity, flexibility, and well-being. For more detailed guidance, check out the ACAS Code of Practice on requests for flexible working and the official government guidance on requesting flexible working.

Mince pies and the minimum wage 

As Christmas and New Year approaches, many firms will rely on additional seasonal staff for shops, warehouses, hospitality outlets and delivery services, but employers must not overlook meeting minimum wage rates and holiday pay obligations.

Those working ‘Christmas jobs’ – including part-time, temporary and zero-hours workers – are legally entitled to the same minimum hourly rates and holiday entitlements as other employees.

Under the Working Time Regulations 1998 (as updated), almost all workers must receive 5.6 weeks’ paid holiday a year, even if they work only seasonally, part-time, or irregular hours.  Holiday pay for those with irregular hours or part-year contracts should now be calculated using the 12.07% accrual method or, if using rolled-up holiday pay that has been in place from April 2024, clearly identified on the payslip.

That is especially important at this time of year: the extra shifts, longer working hours, and deductions for uniform or unsocial-hours premiums increase the risk of inadvertently slipping below the minimum wage or under-estimating holiday pay.

Nearly 500 employers were recently fined more than £10 million for failing to pay the National Minimum Wage and £6 million put back into the pockets of workers following a crackdown as part of the Government’s Plan for Change, and an open hotline for reporting underpayments to HMRC.

Said Amy Cusworth, employment lawyer at Rotherham-based Oxley & Coward Solicitors LLP:  “Seasonal staff can be a major boost to business, but only if the basics are handled correctly.  Now is the time for employers to double check pay, holiday entitlements and paperwork before the festive rush turns into a new year compliance headache.  The naming and shaming of 500 employers recently, including many high street names, shows the reputational damage involved in failing to make the right calculations.”

Checklist for employers

• review pay rates and contract terms to ensure they meet or exceed minimum wage requirements for all hours worked (including overtime, training, opening/closing time and unpaid work)
• audit holiday entitlement and pay calculations for irregular-hours or part-year staff, ensuring holiday pay is not simply built into an hourly rate unless properly documented
• ensure payslips clearly show holiday pay separately (especially if using rolled-up holiday pay)
• ensure payroll software is up to date and applying the latest rates of tax and national insurance
• understand that failure to comply can trigger HMRC enforcement action, including penalty payments and the requirement to pay all arrears owed

National Living Wage and National Minimum wage rates 2025

National Living Wage (21 and over)   £12.21

18 to 20                                               £10.00

Under 18                                              £7.55

Apprentice                                          £7.55

Amy Cusworth added: “Christmas comes but once a year, as the saying goes, and seasonal staff may come and go, but statutory pay rules don’t take a holiday, and employers need to keep them firmly in the calendar all year round.”

[This is not legal advice; it is intended to provide information of general interest about current legal issues.]

Make time for time off

Why employers should keep an eye on unused holiday

With summer in full swing, now’s the perfect time for employers to take stock – not just of who’s on holiday, but of who isn’t.

Despite the sunshine, many employees are staying chained to their desks. According to research by HR professionals, just 35% of UK workers had used their full holiday entitlement last year, and 17% left more than five days unused at year-end. While business continuity may seem secure for now, the long-term risks of holiday hoarding can impact employee wellbeing, productivity and legal compliance.

Whether it’s staff shortages, unspoken expectations, or a fear of falling behind, these barriers are keeping employees from taking the rest they’re entitled to. And with 57% of workers admitting to logging in while away, time off isn’t always time out.

And while the proposed legal right for workers to “switch off” from work was dropped from the Employment Rights Bill currently going through Parliament, the issue hasn’t disappeared altogether. The government has confirmed it will be revisited through a new statutory Code of Practice in a move that suggests formal expectations around out-of-hours contact, and uninterrupted leave could still be on the horizon for employers.

“Employers should be proactive in encouraging their teams to take leave throughout the year,” explained employment law expert  Miss Amy Cusworth of Rotherham town solicitors Oxley & Coward Solicitors LLP. “Not only does this help avoid a year-end holiday backlog, it also protects against the legal and wellbeing risks associated with burnout and chronic overwork.”

Under the Working Time Regulations 1998, most workers are entitled to 5.6 weeks of paid holiday each year, equivalent to 28 days for a full-time, five-day-per-week employee. This includes bank holidays, unless employers choose to offer them on top.

Crucially, statutory leave is a “use it or lose it” entitlement. It can only be carried forward in limited situations, such as when a worker has been unable to take leave due to long-term sickness or statutory leave, such as maternity leave. Otherwise, any untaken leave may be lost at the end of the holiday year unless an employer has agreed to allow additional carryover in a written contract or policy.

That’s why it’s vital to maintain clear and up-to-date holiday policies. Employers should ensure workers understand how much holiday they’re entitled to, when it can be taken, and what happens if it isn’t.

Beyond the legal duty, promoting regular breaks is also good business. Studies show rested staff are more motivated, less likely to take sick leave, and better equipped to deal with pressure and workload.

“Creating a culture where time off is expected — not discouraged — starts from the top,” added Miss Amy Cusworth. “Make it easy to book, make it clear it’s encouraged, and make sure people genuinely switch off when they go.”

[This is not legal advice; it is intended to provide information of general interest about current legal issues.]

Neuroinclusion in the workplace

With a varied workforce, businesses in the UK need to provide inclusive policies and practices. One key area that must be addressed is neuroinclusion. Neuroinclusion in the workplace is the practice of supporting and valuing employees with different learning, thinking and processing styles. These are sometimes called neurodivergent conditions and include autism, ADHD, dyslexia and other conditions.

Having policies and practices in place can benefit both the employees and the organisation. The aim is to create an environment where everyone can thrive.

What are the benefits of Neuroinclusion?

There are several benefits of neuroinclusion for the organisation:

Better problem solving

Different and diverse cognitive styles can help teams look at and solve complex and complicated problems differently. Some neurodivergent people see connections that others can’t, leading to more straightforward solutions to complex problems.

Enhanced innovation

Neurodivergent people can bring a different perspective to any problem or challenge, leading to more creative solutions.

Improved decision-making

Different perspectives can help clarify the decision-making process and lead to more informed decisions.

Increased productivity

Some teams containing neurodivergent people can be more productive than others. This may be because those neurodivergent employees are more focused and make fewer errors.

These are many benefits an organisation will likely experience when employing neurodivergent employees.

How can you create a neuroinclusive workplace?

Before employing neurodivergent employees, you must have policies to cater to their inclusion. There are five key areas you must address.

Manager Training

It is essential to ensure all managers understand how to support all employees, including those with neurodiversity. This involves educating managers on the benefits of engaging and working with neurodiverse employees and how best to integrate them into teams and the wider workforce.

Raise Awareness

Increase awareness amongst employees about neurodiversity and how it can benefit them, their teams and the organisation. This involves education and clarification of misconceptions employees may have about neurodiverse people. Ensure information is freely available to all employees and create an atmosphere of inclusivity.

Implement reasonable adjustments

Organisations must accommodate different learning styles and communications preferences when integrating neurodiverse employees into the workforce to ensure everyone benefits. Employers need to be open-minded about the ways their employees prefer to work.

Create a neurodivergent policy

Establish additional guidelines for supporting neurodivergent employees to ensure no discrimination in the workforce. Ensure the organisation’s commitment to neuroinclusion and any steps taken to create an inclusive environment.

Review Recruitment

Having put in place policies and practices to support employees, neurodivergent or not, ensure recruitment policies are clear. Any job descriptions and application processes must be inclusive and accessible.

Understanding and meeting the challenges of a neuroinclusive workplace

When organisations understand the benefits of engaging neurodivergent employees and meet the challenge of integrating them into a neuroinclusive workplace, they will have taken the first step to improving problem solving, decision-making and productivity.

An Oxford University Guide on “How to Create a Neuroinclusive Workplace” is a good place for organisations to begin their journey.

Sending the wrong signal

The hidden dangers of private messaging at work

By Miss Amy Cusworth,  lawyer with Oxley & Coward Solicitors LLP.

Explosion emojis. Decisions about military strikes taking place via a chat group. A journalist accidentally included in high-level war strategy planning. It sounds like a far-fetched plot for a political satire – but it was a real-world breach that unfolded with the kind of ease that should worry every organisation.

The now-infamous ‘Signalgate’ leak saw senior White House officials in the US using Signal, an encrypted messaging app, to discuss potential airstrikes in Yemen. The group chat had been set up by President Trump’s national security adviser Michael Waltz, who inadvertently invited a reporter to join, in a slip-up that has since been attributed to an ‘auto-suggest’ option from his iPhone.

In a cautionary tale of what can go wrong when direct messaging apps blur the lines between personal and professional use, Signalgate raises fundamental questions for any organisation about security, transparency, and confidentiality.

The problem isn’t limited to Signal. The UK’s COVID-19 Inquiry has revealed extensive use of WhatsApp among government ministers for day-to-day decision-making. It’s part of a broader shift in how we communicate — one that accelerated rapidly during the pandemic, when the need for quick, remote connection often trumped concerns about data security or governance.

Originally designed for private conversations, encrypted messaging platforms swiftly became embedded in everyday working life. The appeal is obvious: instant, informal, and always to hand.

But their use introduces a spectrum of risks — from data breaches and non-compliance to employee rights and serious reputational damage.

In many organisations, adoption of these tools was organic and even welcomed as a practical lifeline. Familiar platforms helped people stay connected through lockdowns,  but also ushered in a new informality in language and tone. One need only glance at the emojis exchanged during the Signalgate chats to see how quickly professional norms can shift.

The risks, however, are serious.

One is the difficulty of oversight as encrypted messaging is, by design, hard to monitor. Yet unchecked use can breach employment law, particularly if attempts to monitor private communications infringe employee rights. Conversely, failing to monitor conversations can create vulnerabilities, especially if inappropriate or offensive messages go unaddressed.

Transparency is another challenge. Whether in politics or business, key decisions made via unrecorded private channels may fall foul of legal and governance requirements. In the public sphere, this can mean breaching open records laws; in organisations, it undermines audit trails and accountability.

Data management must also comply with the Data Protection Act 2018 and General Data Protection Regulation (UK GDPR). The mishandling of sensitive information – even unintentionally – can attract hefty penalties and damage long-standing relationships if customer confidentiality is impacted. And while platforms like Signal are designed to protect user data, responsibility for compliance lies squarely with the organisation.

Security, too, is a concern and not just in hostile state espionage scenarios, as in the Signalgate case, where experts flagged the use of unsecured personal devices as the greatest vulnerability. Any business handling sensitive or client-related information must contend with the same risk: encrypted doesn’t mean infallible. Interception, device compromise and data leakage remain live threats with industrial espionage a real threat to many businesses.

Alongside direct messaging, use of private social media accounts may add a further layer of complexity. Even content shared behind privacy settings could find its way into the public domain, with potentially serious consequences for brand reputation and internal trust.

The ‘auto-suggest’ blamed by the White House is also a reminder of how much we are now working with embedded AI and predictive tools. Auto-suggest features, contact prompts, and auto-correct functions are designed for convenience, but they work on machine logic, not human context. When a platform decides who you “probably meant” to message, or how you “meant” to phrase a sentence, that shortcut can carry real consequences, especially in sensitive or high-stakes environments. The more seamlessly these tools integrate with our daily communication, the easier it becomes to overlook the fact that they’re making decisions on our behalf.

The Online Safety Act 2023 may also have implications. While designed to protect users online – particularly children – its provisions could impact encrypted messaging apps, potentially requiring access to private conversations to detect harmful content. This could raise further questions around organisational use of such tools and their data protection obligations.

The upshot? Organisations need to take a proactive, structured approach:

• Establish clear communication policies, specifying which channels are approved for business use and why.
• Offer secure alternatives for internal communication, rather than simply banning popular apps.
• Train all staff – including senior leaders – in the risks, rules, and expectations around messaging and data protection.
• Provide guidance on AI-powered tools, including how to disable automated features, particularly when dealing with sensitive communications.
• Implement hardware safeguards like mobile device management (MDM) systems to secure data on both personal and work devices.
• Conduct regular audits to ensure compliance and catch unauthorised use early.

It’s a fast-moving environment, and the breach at the highest level of the US administration shows how hard it is to keep tabs on everyone within an organisation,  especially when it may be the most senior people who think it’s ok to break the rules.

But by proactively addressing the use of encrypted messaging apps, organisations are on the road to safeguarding their reputation, ensuring legal compliance, and protecting sensitive data in an increasingly complex digital environment.

[This is not legal advice; it is intended to provide information of general interest about current legal issues.]

Devil in the detail with new identity checks for directors 

Company directors are being urged to prepare for a major change, as Companies House introduces new identity checks for those setting up, running or owning UK businesses.

The new identity verification requirements, introduced under the Economic Crime and Corporate Transparency Act 2023, are being rolled out in stages and will soon become compulsory.  Companies are being advised to check their records are accurate and up to date ahead of the formal rollout, as mismatched information could prevent successful verification, leading to penalties and blocked filings.

Anyone who is a company director, person with significant control (PSC), or who files on behalf of a company will need to go through identity verification, either through the GOV.UK One Login or by using an Authorised Corporate Service Provider – a registered agent that must be supervised for anti-money laundering purposes, such as an accountant or solicitor.

“Companies should check that the personal details listed for each director and PSC are accurate,” said Miss Amy Cusworth, company & commercial solicitor at Firm Oxley & Coward Solicitors LLP. “If anything doesn’t match the ID document, you won’t be able to complete the verification process when it becomes mandatory.”

As well as providing the necessary ID documentation and answering knowledge-based security questions, personal details will be checked, including full name, any former names, residential address, including previous addresses if less than 12 months, date of birth, and a valid e-mail address not used by anyone else for verification.

The move is part of wider efforts to clamp down on fraud and improve transparency in the UK’s corporate landscape. In future, unverified individuals will not be allowed to make filings, and companies that fail to comply may face financial penalties or further enforcement action.

Miss Amy Cusworth added: “We don’t yet have a firm timeline for the new rules, but we expect compulsory identity checks will be in place by the autumn. When that happens, directors will have a limited window to comply.

“For government, this is a proactive step towards tackling economic crime, but for legitimate businesses it’s just good housekeeping. Getting your records in order now and verifying your identity voluntarily will help you stay compliant and avoid disruption ready for when it becomes a legal obligation.”

Company records can be checked and updated via the find and update company information service on the Companies House website. Some changes can be made online, but others — such as correcting incorporation errors — must be made using paper forms.

[This is not legal advice; it is intended to provide information of general interest about current legal issues].

Location, location, location

From Cornwall to corner desks: when workplace moves go wrong

They say a change is as good as a rest, but for two employees, changes to where they worked ended in legal battles.

One involved a security manager wanting to work in Cornwall, the other an estate agent who claimed demotion after being assigned a different desk. These very different tribunal cases show that when it comes to workplace relocation, whether a few feet or a few hundred miles, getting it wrong can be a costly move for employers.

The first case posed a remote working dilemma. Nick Kitaruth, a security manager, was dismissed after working from his parents’ home in Cornwall, 200 miles from his usual base at the QEII Conference Centre in Westminster.

Kitaruth had previously worked from Cornwall, based on an informal verbal agreement with his manager, and believed this would apply during the quieter August period. But this time it led to accusations that Kitaruth had acted without authorisation and wasn’t fulfilling his role.

The tribunal ruled that Kitaruth’s dismissal was unfair. The key failing? His employer’s investigation process.  No formal interview was undertaken with the manager before deciding to dismiss Kitaruth, where a proper investigation would have revealed how informal the arrangement had been and that misunderstandings were likely.

Concluding that “no reasonable employer” would have proceeded to dismissal without clarifying this crucial point, the tribunal also criticised the excessive delays in the disciplinary process, which took six weeks for an investigation and seven months for an appeal.

Explained Miss Amy Cusworth, employment expert with Rotherham solicitors Firm Oxley & Coward Solicitors LLP:  “This case underscores the need for employers to be thorough in agreements over remote working, and prompt in managing disciplinary action. Even though the tribunal was doubtful as to whether any work was actually carried out during the remote working, that didn’t affect their decision – although they have ruled that the compensation will be reduced by 50% because of that.”

In the other case, a senior estate agent successfully claimed constructive dismissal after being assigned to a less prestigious desk in his office. Nicholas Walker argued that being moved from the “back” desk — traditionally reserved for the branch manager — to a more central position was a symbolic demotion.

The tribunal agreed that the desk assignment could reasonably be viewed as a demotion and found that the employer’s handling of the situation damaged the trust and confidence required in an employment relationship, and compensation will be decided at a later date.

Miss Amy Cusworth : “Ultimately, these cases show how situations can escalate and have significant legal consequences if not handled with care.  Ensuring clear policies, excellent communication, fair procedures, and sensitivity to employee concerns can help avoid damaging disputes.”

[This is not legal advice; it is intended to provide information of general interest about current legal issues.]

Managing working locations

.: key takeaways for employers

• Clarity: Whether it’s remote working arrangements or office seating, employers must ensure that expectations are clearly communicated and understood.
• Sensitivity: Consider cultural sensitivities, particularly for protected characteristics such as gender or religion, but also for symbolic indicators of status within the organisation.
• Fairness: Misunderstandings can happen, but clear procedures for airing grievances or approving working arrangements, and responding to concerns by fully investigating issues, can avoid unfair dismissal claims.
• Timely: Long delays in handling grievances or appeals can compound disputes and reflect poorly in tribunal proceedings. Have a timeframe and stick to it.

Equal opportunities – legal responsibilities overview

The Equality Act 2010 consolidated a number of previous pieces of legislation including the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995. The Act protects people from discrimination in the workplace and wider society. This followed the formation, in 2007, of the Equality and Human Rights Commission, an independent statutory body. Its purpose is to encourage equality and diversity. It also has responsibility for eliminating unlawful discrimination and protecting and promoting the human rights of everyone in Britain. The UK government has produced guidance on the Equality Act 2010. But what does equal opportunities mean?

What does equal opportunities mean?

In employment terms, equal opportunities means all workers being entitled to and having access to all of the organisation’s facilities at every stage of employment. This includes the pre-employment stage.

Every individual should have an equal chance:

• To apply and be selected for posts pre-employment
• To be trained and promoted whilst employed by an organisation
• To have their employment terminated equally and fairly.

Employers must have policies and procedures in place to prevent discrimination and foster equal opportunities within the organisation.

These include:

Prohibit discrimination

Employers must not discriminate against people based on protected characteristics like age, race, sex, sexual orientation, or disability. An example of this type of discrimination is dismissing women during pregnancy.

Prevent discrimination

Employers must take steps to prevent discrimination and harassment in the workplace. An example of this is where an employee is treated poorly by colleagues based on a protected characteristic.

Provide reasonable adjustments

Employers must make reasonable adjustments in the workplace for people with disabilities.

Comply with equal pay legislation

Employers must pay men and women the same rate for the same or equivalent jobs. There has been a raft of cases in recent years by female workers against their employers, arguing that they should be paid the same rate as men doing the same job. One of the most recent cases involved the retailer Next, which lost a six-year battle brought by its female employees who claimed they had been paid less than male employees who were doing a similar job.

Protect employees’ health, safety and welfare

Employers have a duty of care to protect the health, safety and welfare of their employees.

Who is responsible for equal opportunities?

Employers are responsible for ensuring that they comply with equal opportunities law. Equal opportunities also apply in education. In addition, public authorities have a Public Sector Equality Duty in relation to services. They are also required to consider equality when exercising public functions.

How are equal opportunities enforced?

Individuals are able to enforce their rights before the courts and through employment tribunals. The Equalities and Human Rights Commission also has a range of powers at its disposal enabling it to enforce equality law. This usually happens at an institutional level.

Blowing kisses, not boundaries

Tribunal clears air on workplace etiquette

A recent Employment Tribunal case has sparked debate about the boundaries of workplace behaviour, with a male manager’s attempt to ‘air kiss’ a female colleague raising questions about what constitutes inappropriate or unwanted conduct at work.

The case involved a female employee, Jing Jing Chen, who claimed that her male manager had hugged her and then leaned in to kiss her on the cheek without her consent during a workplace conversation, saying that the incident made her feel uncomfortable and was an example of sexual harassment.

The Equality Act defines sexual harassment as unwanted conduct of a sexual nature that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment. Crucially, the behaviour must be unwelcome, and its impact on the recipient must be assessed objectively and subjectively.

Her manager, Paul de Newtown, said he only gave her an ‘air kiss’ – defined by the Collins dictionary as “a kissing gesture, especially one directed towards a person’s cheek, made without making physical contact”.

The tribunal concluded that de Newtown’s action, while unwelcome, was not inherently sexual.  It also took into account the context, the intent behind the behaviour, and the reaction of the employee at the time, before deciding that the manager’s behaviour did not meet the threshold defined by the Equality Act 2010.

“This ruling should not be taken as diminishing the responsibility of employers to maintain a safe and respectful workplace, but rather an illustration of the very fine line that can divide harmless social gestures and conduct that crosses professional boundaries,” explained Miss Amy Cusworth, employment expert with Rotherham solicitors Oxley & Coward Solicitors LLP.

“While not every unwelcome action constitutes harassment under the Equality Act, employees have the right to feel respected and safe in their workplace. Employers must foster a workplace culture that encourages open communication and be active in addressing concerns early to help avoid misunderstandings or worse.”

Key takeaways for employers include:

1. Context Matters: The tribunal emphasised the importance of considering the context and intent of behaviour. Employers should ensure that workplace training includes guidance on understanding boundaries and recognising behaviour that could be perceived as inappropriate.
2. Clear Policies: Employers must have clear policies on workplace behaviour and harassment, including examples of unacceptable conduct. These policies should also outline procedures for addressing complaints.
3. Cultural Sensitivity: Actions that may seem harmless to one person could be unwelcome or offensive to another, particularly across different cultures and backgrounds. Creating an inclusive workplace culture requires ongoing education and awareness.
4. Prompt Action: Employers should take all complaints seriously, conducting thorough investigations to determine whether conduct breaches workplace standards or the law.

Useful resources, with guidance on the Equality Act and inclusive workplaces, are available at the Equality and Human Rights Commission https://www.equalityhumanrights.com/

[This is not legal advice; it is intended to provide information of general interest about current legal issues.]

New sexual harassment rules may signal end of office parties 

The festive season is upon us, but businesses may need to rethink their approach to office Christmas parties following the introduction of stricter sexual harassment laws. The updated legislation, which came into effect in October, places a greater duty on employers to take reasonable steps to prevent sexual harassment in the workplace, including at social events.

As a result, legal experts warn that the new rules could spell the end of traditional alcohol-fuelled office celebrations, especially in sectors like financial services.

Miss Amy Cusworth, employment lawyer with Rotherham-based Firm Oxley & Coward Solicitors LLP highlights the impact on businesses. “With increasing legal responsibilities for staff safety, some companies may feel such events are becoming too risky, too difficult to manage and too costly.”

The new legal duty represents a significant shift in how employers must act to prevent sexual harassment. Previously, employers could defend themselves by demonstrating they had policies and procedures in place and had taken reasonable steps after an incident occurred. Now, businesses must take action to anticipate and prevent harassment, regardless of whether a complaint has been made.

Sexual harassment involves any unwanted sexual behaviour that causes someone to feel intimidated, degraded, humiliated, or offended, regardless of intent. This includes actions like inappropriate remarks about someone’s appearance, offensive jokes, unwelcome questions about personal matters, or non-consensual touching. It also extends to digital communication, such as unwanted messages, emails, or phone calls.

And the stakes are high for employers who fail to meet this new duty. If the Equality and Human Rights Commission (EHRC) receives a report that a business is not taking reasonable preventative steps, it can take enforcement action, even if no specific harassment claim has been made. Where a case proceeds to an employment tribunal, non-compliance could result in an increased compensation award of up to 25%.

In addition, businesses in high-risk industries may need to consider extra safeguards, such as in hospitality, where research has found more than half of women reporting workplace sexual harassment.  Measures could include ensuring employees never work alone, providing additional reporting channels beyond direct supervisors, and treating social events as extensions of the workplace.

Miss Amy Cusworth warns that “Waiting for something to happen is not an option: every employer needs to be able to show they have taken reasonable steps to prevent a situation arising.”

For employers, the message is clear: ignoring these risks could result in significant legal and reputational damage and simply scrapping social events like the Christmas party isn’t a solve-all action.  Instead, businesses need to mitigate risk by implementing clear policies, providing staff training, and promoting a culture of respect and inclusion, explains Miss Amy Cusworth:

“This legislative shift will be a wake-up call for many industries. Yes, festive gatherings can boost morale and foster team cohesion, but they must be carefully planned with an emphasis on safeguarding employee wellbeing.

“This is about looking at the bigger picture and taking action to foster a safe and respectful environment that protects both employees and the business.”

While the current legislation does not specifically allow for claims due to third-party sexual harassment, legal liability may arise if employers fail to act on inappropriate behaviour by clients or suppliers. Looking to the future, the Employment Rights Bill progressing through Parliament will increase employer responsibilities in this area.

What can be done to safeguard staff against sexual harassment:

• Implement a comprehensive sexual harassment policy that is clearly communicated.
• Conduct regular training for all staff on recognising and preventing harassment.
• Assess risks specific to industry and workplace.
• Foster a culture of transparency where employees feel comfortable speaking up.
• Establish clear reporting procedures and ensure all staff know what actions will follow any report.
• Communicate a zero-tolerance stance towards any form of harassment.

[This is not legal advice; it is intended to provide information of general interest about current legal issues].

Government steadies the path on worker reforms

Unveiled Employment Rights Bill paces change for employers and workers

By Miss Amy Cusworth, employment law specialist with Oxley & Coward Solicitors LLP.

Heralded as the greatest shake up in UK employment law for more than 30 years, and the biggest upgrade to worker rights in a generation, the much-anticipated Employment Rights Bill has finally landed.  But with many of the sweeping reforms postponed or diluted, it feels more like the start of a steady transition than a seismic shift.

Fulfilling the government’s election promise to publish the Bill within 100 days of its landslide election victory generated a time pressure that has led to unfinished business and inevitable compromises.

Alongside, powerful voices from the employer side forced a rowing back on some of the most impactful employee protections proposed in the government’s Make Work Pay manifesto plan to tackle low pay, poor working conditions and poor job security to help more people to stay in work.

As a result, while some of the expected reforms make it through, many are modified, and others are noticeably absent or subject to further consultation and refinement.

That is evident in the simultaneous publication of a companion paper to the Bill, called the Next Steps.  This outlines how Labour intends to meet the election promises not yet covered by the Bill.

Many of the requirements also depend on secondary legislation, the outcome of consultation, or codes of practice. Taken together with an assurance that significant changes, such as those around unfair dismissal, will not take effect until 2026, this staged approach should offer some relief to employers, knowing that there will be no overnight change of regime.

The much-trailed provision for unfair dismissal rights from day one now includes a probationary period to ease employer concerns, though details are yet to be finalised. This compromise allows employers time to assess employee suitability for a role, while reassuring employees about immediate protections.

Currently, unfair dismissal rights apply only after two years of employment. The Bill removes this qualifying period, proposing instead a streamlined dismissal process during a statutory probationary period, likely set at nine months, though this will be subject to consultation.

One of the issues covered by the Next Steps paper is the right to disconnect — a provision aimed at protecting employees’ time away from work — which was widely expected to be contained within the Bill.  Instead, the government has promised to address it via a new code of practice, with consultation expected next year.

Another long-standing Labour commitment is the abolition of the UK’s three-tier employment framework, towards a single worker status.  This aims to expand the range of workers who qualify for employment rights, a fundamental change that could reshape the employer-employee dynamic, by merging the existing categories of ‘worker’ and ‘employee’, leaving only the status of ‘employed’ or ‘self-employed’.

A significant proposal, designed to reduce ambiguity, this has provoked loud debate over its potential impact on business flexibility and for now, this promise has proven too complex to address within the timeframe.  But the government has confirmed its continued commitment to a single worker status model with consultation plans in the Next Steps paper.

For pregnant women and new mothers, further details are awaited, but the Bill strengthens protections against dismissal in a significant extension of current safeguards.  It will be unlawful to dismiss a woman on maternity leave, as well as for six months after her return, except in specific circumstances.

However, the Bill does not make any mention of changes to statutory maternity pay (SMP) rules. Off-record rumours had suggested these would be adjusted to allow pregnant employees to qualify for SMP if they began a job during the first six months of their pregnancy.  Currently, they will only be eligible for SMP if they become pregnant after starting their job.

While a raft of sweeping changes has been outlined in the Bill, and a timeline indicated for those in the Next Steps, there’s little in the way of immediate action. Instead, it’s a case of waiting to see how Parliament will shape the final version of the Bill. Notably, before the ink is even dry on this initial working, the government has hinted that it might amend its own draft in the coming months.

For now, employers should take account of the potential changes in their thinking and future strategy and keep their ear to the ground for further legislative changes. As the Bill moves through Parliament and consultation documents are released, the practical implications will become clearer.

Employers can breathe a little easier, with the government promise of a gradual implementation, and most major changes not coming into effect until 2026.

But the changes are substantial, and smaller businesses without dedicated specialist support will need to devote time and resources to navigate them effectively.  Ensuring positive outcomes for both employees and the business will require careful planning and support together with regular review of policies.

Drilling down into the detail:

The government’s new Employment Rights Bill outlines significant changes to employment laws, with its focus on workers’ rights and flexibility.  The draft legislation is subject to revision as it makes its passage through Parliament, but the key elements employers should be aware of are:

Protection against unfair dismissal from day one:   

Day one protection, combined with a new statutory probationary period for new hires, replaces the current two year qualifying period for unfair dismissal protection.

 Making flexible working the norm where practical :

Under the new Bill, any refusal of a flexible working request must satisfy a test of reasonableness.  Although the eight permissible business reasons for refusal remain unchanged, this is likely to make it easier for employees to challenge refusals.

Flexibility on both sides of zero hours contracts:

Zero hours contracts have not been banned, but there will be a new right for workers to be entitled to a contract which reflects the number of hours regularly worked over a specified reference period, which is expected to be 12 weeks, once confirmed.  Also outlined are new provisions to give workers reasonable notice of shifts and to proportionately compensate them when shifts or working times are cancelled or cut short by an employer without reasonable notice.

Greater protection from ‘fire and hire’:

Employers will find it harder to change contractual terms without the employee’s consent.  It will be automatically unfair to dismiss an employee for refusing a change to their terms of employment or for replacing them with another employee on altered terms to perform essentially the same role.

Rights to bereavement, paternity and parental leave from day one:

As expected, the Bill removes the qualifying period of 26 weeks for paternity and parental leave, making these into day one rights. There will be a new right to at least one week’s bereavement leave, with details of which relatives this applies to covered by regulations to follow.

Extended protection from redundancy for new parents:

Pregnant employees and new mothers will receive extended protection from redundancy.

 Extended entitlement to statutory sick pay: 

Currently, statutory sick pay (SSP) is only available from the fourth day of sickness for employees earning over £123 per week. The Bill removes the waiting period, making SSP payable from the first day of illness, and eliminates the minimum earnings threshold. These reforms are expected to take effect fairly quickly.

Stronger laws against harassment:

The Bill strengthens existing requirements to guard against sexual workplace harassment, due to come into force later this month, by raising the bar from a duty to take ‘reasonable steps’ into a duty to take ‘all reasonable steps’.   The Bill also makes employers liable for harassment by third parties on any grounds, not just sexual harassment, if it happens in the course of employment.

A new approach to enforcement and policing – Fair Work Agency:

The Fair Work Agency will be established to bring together existing enforcement bodies to oversee rights such as holiday pay and to provide general guidance.  The approach has yet to be set out, but could be more interventionist than presently, in enforcing employees’ rights against employers.

[This is not legal advice; it is intended to provide information of general interest about current legal issues].

The temperature’s rising and it’s a challenge for employers 

Summer 2024 may have been a mixed bag in terms of weather, but it has been a bag of extremes, with cycles of torrential rain followed by heatwaves.  And as the UK experiences increasingly hotter summers, the issue of high temperatures in the workplace is becoming a significant concern for employers.

For while short-term measures may mitigate the immediate risks of a heatwave, businesses need to consider the broader context of climate change and its impact on the working environment to develop a long-term approach.

While there is no specific maximum working temperature law in the UK, employers have a legal duty to provide a safe and healthy working environment under the Health and Safety at Work Act 1974. This includes taking steps to protect employees from excessive heat, whether they come into work or are working from home.

The law requires employers to assess risks to employee health and safety, which includes those arising from heat stress, and there is a specific requirement to consider how it impacts women of child-bearing age, including anyone who’s pregnant, breastfeeding or just had a baby, or anyone with health conditions or disabilities that can be affected by extreme temperatures.

And if a risk cannot be avoided or removed, the employer must allow the person to leave the workplace, with full pay, until the risk is over.

Said Miss Amy Cusworth, employment expert with Rotherham solicitors Oxley & Coward Solicitors LLP : “The real challenge is that there is no universal standard that sets out how hot is too hot.

“Factors such as the nature of the work, the physical demands of the job, and the individual characteristics of employees are all part of the mix.  Clearly a working environment involving heat generation, such as a bakery or a furnace will inevitably involve higher temperatures and those may be reasonable in that environment, when combined with the right level of worker protection, where it would be unacceptable in an office or retail shop.”

She added:  “The important thing is to identify the risks and tackle them when the weather is cool, and with a long-term strategy.  The mercury is rising year on year, and we have to face up to it.  Employers need to listen to employees and work to develop a safe and healthy working environment for the future.  Keeping policies up to date and making sure everyone understands their rights when the temperature does rise is an essential part of this. ”

Some common control measures to address high temperatures in the workplace include:

• Adequate ventilation or air conditioning
• Access to cool drinking water
• More frequent breaks
• Cooler rest areas
• Adapting work patterns or tasks to reduce heat exposure
• Personal protective equipment, such as fans or cooling vests

Health and Safety at Work etc. Act 1974

[This is not legal advice; it is intended to provide information of general interest about current legal issues.]

Landlords learn how to navigate the Mental Health Breathing Space

Private residential landlords are being challenged to keep pace with current legislation and a scheme to support tenants through debt is one of the latest demanding a detailed understanding.

The Debt Respite Scheme, introduced in 2020, introduced a so-called ‘breathing space’ for tenants trying to manage debt, including those experiencing a mental health crisis.

The scheme was designed to offer a lifeline to tenants struggling with debt and while the scheme can seem a challenge for landlords facing arrears, understanding its implications is key to navigating the situation effectively.

The respite scheme provides for two types of breathing space: standard or in a mental health crisis:

• A standard breathing space lasts for 60 days and is available no more than once a year to anyone in debt who seeks help from a qualified debt advisor.
• A mental health crisis breathing space lasts for the duration of the tenant’s treatment now matter how long that lasts, plus at least an additional 30 days, including no annual restriction.

The breathing space scheme allows the tenant to apply for a temporary halt on certain debt recovery actions, including eviction proceedings based on rent arrears.

For landlords, this means they are limited on the action they can take during a tenant’s breathing space.

• Rent collection: Rent payments are still due during the breathing space, but you cannot pursue legal action for missed payments during this time.

• Eviction proceedings are paused: If you’ve already initiated eviction proceedings based on rent arrears, the court must adjourn them until after the breathing space ends.
• New eviction notices for rent arrears are on hold: You cannot serve a Section 8 notice seeking possession solely due to rent arrears accrued during the breathing space.
• Other eviction notices remain an option: You can still pursue eviction based on other grounds, such as property damage or anti-social behaviour.

Explained Miss Amy Cusworth, Company Commercial expert with Rotherham Solicitors Oxley & Coward Solicitors LLP: “While the breathing space can feel like a barrier to landlords in getting rent in, or property repossessed and re-let, it’s crucial to remember it’s a temporary measure aimed at helping a tenant who is experiencing a vulnerable period and these are inevitably more likely during the pressures of a cost of living crisis.

“You can ask for proof of the breathing space from the debt adviser working with the tenant and you can discuss options with the adviser, such as payment plans or rent adjustments for after the breathing space ends.  You can’t communicate directly with the tenant about rent arrears during this time, although you are allowed to communicate directly with essential information regarding the property, like repairs or safety hazards.”

Landlords considering how to guard against the potential financial impact of a tenant requesting a ‘breathing space’ may opt for a rent guarantee insurance policy.  They may also be able to use the ‘no-fault’ section 21 eviction process for a tenant on breathing space who is on an assured shorthold tenancy, as this form of eviction does not relate to the debt, but the process can take many months, and would likely require separate action to recover the debt after the breathing period.

Miss Cusworth added:  “While it can be challenging for landlords when no income is coming in, it’s important to understand and follow the regulations.  Get advice if you’re unsure, and keep meticulous records of all communications and the rent arrears.  And bear in mind that well-supported tenants are more likely to be good tenants in the long run.”

Additional Resources:

• GOV.UK – Debt Respite Scheme (Breathing Space) guidance for creditors: https://www.gov.uk/government/publications/debt-respite-scheme-breathing-space-guidance/debt-respite-scheme-breathing-space-guidance-for-creditors

[This is not legal advice; it is intended to provide information of general interest about current legal issues.]

Mind your words and avoid discrimination at work

The office banter. The casual joke. The seemingly harmless comment. In a fast-paced world, it’s easy to overlook the power of language. But choose your words poorly in the workplace, and you could find yourself on the wrong side of the law.

The Equality Act 2010 protects employees from discrimination based on nine protected characteristics, including race, sex, disability, and age. It also provides protection against discrimination during pregnancy or maternity leave, whether because of the pregnancy itself, or because of illness suffered because of it.

And one recent case highlights how stereotypical comments about pregnancy can be unlawful.  Here, a pregnant employee successfully claimed for discrimination and constructive dismissal when her working relationship with managers became difficult after she announced her pregnancy, continuing through to her return after maternity leave.  In one exchange she was called ‘very emotional and tearful’ and the employment tribunal found that her male boss had ‘stereotyped’ her as ‘an emotional, hormonal, pregnant woman and that in the particular circumstances his description of her … was dismissive and belittling’.

“Language laden with stereotypes or assumptions can have serious consequences,” explained Miss Amy Cusworth, employment expert with Rotherham Town solicitors Oxley & Coward Solicitors LLP.  “This reaches into the heart of the culture of your organisation and it’s worth reviewing with managers the importance of being mindful of what they say.

“All of us carry unconscious biases and we may need to be encouraged to consider what those might be and how our use of language may reflect these biases.  Comments made as a ‘joke’ or even as a so-called compliment can cause problems, if they are uninvited and inappropriate.”

That’s demonstrated by another recent case, where a tribunal found that introducing a female employee as ‘glamorous’ in a business context was potentially a breach of employment law, saying: “Looked at objectively, it could be taken as undermining or belittling the person being described, making them seem less serious and professional.”  The case involved a female barrister employed by a local authority and the tribunal said that being introduced in this way had the potential to be harassment, as defined by the Equality Act.

Added Miss Amy Cusworth:  “The use of language sets the stage within the work environment, and  whether it’s directly unpleasant, or so-called banter that makes someone feel uncomfortable or excluded, it’s likely to result in low morale and decreased productivity, and could, ultimately, lead to legal action.

“So, making sure everyone is kept up to date on how to mind their words, through both workshops and internal resources, is an important step towards managing the risk.”

Some tips for employers to foster inclusion and avoid discrimination include :

• Be mindful of stereotypes: Challenge assumptions about people based on their protected characteristics.
• Use inclusive language: Address people by their preferred pronouns and avoid gendered terms for roles or tasks.
• Focus on skills and experience: Evaluate colleagues based on their abilities, not their background or gender.
• Educate yourself and your team: Have regular workshops and training on unconscious bias and inclusive language.

The Equality and Human Rights Commission (https://www.equalityhumanrights.com/) has resources which offers guidance on the Equality Act and inclusive workplaces.

[This is not legal advice; it is intended to provide information of general interest about current legal issues.]

Standard Terms and Conditions for Small Businesses: What Should be Included?

Introduction

The business landscape, especially for small businesses, can often seem like a minefield. The key to navigating this successfully lies in establishing comprehensive standard terms and conditions (T&Cs). These T&Cs act as a compass, guiding the business relationship between you and your customers. This article delves into the importance of T&Cs, their components, and how to craft and update them effectively.

What are Terms and Conditions?

T&Cs, also known as business terms, terms of sale, or terms of service, are the legal contract between you and your customer for your supply of goods or services. They are the conditions on which you agree to do business with someone else, often on a non-negotiable take-it-or-leave-it basis. In the UK, it is crucial for businesses to have T&Cs in place to protect both themselves and their customers.

The Importance of Terms and Conditions

T&Cs are vital in setting out what you have agreed with a client or presenting the inflexible terms under which you will accept business. They act as a record of your contract, define the contract, set out business procedures, protect your business and your rights and limit your liability. Even if you are selling a low-value product or service, a disagreement with a client can take up significant time and possibly lead to reputational damage. Hence, having a comprehensive set of T&Cs is not only good business practice but also a trust-building measure with customers.

Components of Terms and Conditions

A well-constructed T&Cs document should include the following provisions:

Definition of the Contract’s Basis or Subject Matter

Your T&Cs should clearly state what you are selling. The products and/or services could be described in detail or by reference to another document, such as a sales brochure or your website.

The Price

This should include all variations and circumstances as well as provisions for price increase.

Payment Terms

This section should set out how you want to be paid and when, your contract should include non-payment and late payment provisions.

Definition of the Services Procedures

How much detail you should give depends on your business. Avoid cluttering your T&Cs with half promises and sales talk.

Provisions Relating to Carriage, Delivery, Risk and Insurance

Every business selling goods has its T&Cs to cover this area of activity.

What Happens While the Contract Runs?

In  a  contract  for  services which will take place over a period of time, you might want
to explain who will be responsible for which aspects of the service while the contract is
running.There can be any number of contract clauses depending on the nature of the
service to be delivered.

Termination Provisions

You need to consider how long your contract will last, the trigger for termination and the consequences of early termination.

Limitation of Liability

These terms limit the damages that you have to pay to your customer if your goods or services fail.

Protecting Your Business

This area is usually covered in a number of separate provisions.
Some such provisions might include force majeure (circumstances beyond  your and the customer’s control), confidentiality, or non-disclosure of information or restriction of the extent of any claim.

Intellectual Property Rights Protection

Your intellectual property may be very valuable. Use and ownership of intellectual property is particularly important in the context of an Internet business.

The Role of Privacy Policies

Privacy policies that outline how businesses collect, store, and use customer data are a crucial part of T&Cs. Businesses must comply with UK data protection laws, including the General Data Protection Regulation (GDPR) as present in UK law.

Compliance with UK Consumer Protection Laws

Businesses must adhere to UK consumer protection laws, including the Consumer Rights Act, which outlines the rights of consumers when purchasing goods or services. Any terms and conditions should be written in clear and concise language, and businesses should ensure that customers fully understand what they are agreeing to when making a purchase.

Crafting Your Terms and Conditions

Creating your terms and conditions can be done in several ways. It’s often recommended to instruct a lawyer to draft them, as using templates and examples can result in key business activities not being protected by agreement to the terms and conditions. Regardless of the method used, businesses should ensure that their terms and conditions are tailored to their specific industry and customer base and are written in clear and concise language.

Updating Your Terms and Conditions

Once your terms and conditions are in place, it is important to regularly review and update them to ensure that they remain relevant and effective. Businesses should review their terms and conditions at least once a year or whenever there are changes to laws or regulations that may impact them. It is also important to notify customers of any changes to the terms and conditions, including providing them with a copy of the updated document.

Legally Binding Nature of Terms and Conditions

T&Cs are legally binding and form a part of the contract between you and your customer. To ensure they’re enforceable, T&Cs should be made visible on your website and form part of your onboarding process when you take on a new client. It’s best practice to direct all new customers to your T&Cs and have them sign the document to say they have read them, or create an online click agreement.

Where to Place Your Terms and Conditions

Position your T&Cs in a prominent place on your website and ensure they’re easily accessible through hyperlinks. If you require a sign-up form from new customers, acceptance of your website terms should be mandatory, and definitive acceptance of them sought, e.g. “click this button to accept our Terms and Conditions”.

Changing Your Business’s Terms and Conditions

Most T&Cs include a provision that allows the business to change the Terms and Conditions at any time. If you have regular clients or customers, it’s best to inform them in writing that your standard T&Cs have changed and what this means for them. To avoid any misunderstandings that may lead to disputes, have the client or customer sign the new T&Cs to acknowledge receipt.

Conclusion

Having effective terms and conditions in place is essential for any UK business. They provide a clear understanding of the terms of sale or service, protect the business and customers, and ensure compliance with UK laws and regulations. By following the key considerations outlined in this guide, businesses can create terms and conditions that are tailored to their specific needs and customer base and that provide a positive experience for their customers. If you’re unsure about how to draft your terms and conditions or need help updating them, consider seeking legal advice. By taking the time to ensure that your terms and conditions are effective and up to date, you can protect your business and provide your customers with a positive experience.

The final stage on the rules for tipping and gratuities

New rules to ensure fairness and transparency around handling tips and gratuities will soon go live for hospitality and other service sector businesses.

These are designed to ensure an even-handed approach in situations where the employer has control over how tips are distributed.

From 1^st July 2024, a statutory code of practice will be in place, providing businesses and staff with guidance on how distribution of tips should be managed.  It follows on from the Employment (Allocation of Tips) Act 2023 which was put in place to make it unlawful for employers to withhold tips and service charges from staff.

“This code is the final stage in the tightening up of rules around how tips are handled in the workplace,” said employment law expert Miss Amy Cusworth  of Rotherham-based Firm Oxley & Coward Solicitors.  “Any employers operating a business where gratuities and tipping takes place must match up when the code of conduct comes into effect in July.”

The 2023 legislation was introduced to control tipping in the workplace and overcome situations where employers make deductions from tips or withhold service charges, with many so-called ‘administration’ charges levied where tips are given through card payments.

Previously, businesses often made deductions for the transaction fees on tips given via card payment, before passing cash on to workers.  Now, the whole sum is required to be passed on, without deduction.

The Code of Practice is intended to facilitate fairness and transparency and businesses will be required to:

• distribute tips to staff within one month of the end of the month in which the customer paid the tip; and
• have a written policy on the allocation of tips and maintain records of the distribution, unless they receive tips only occasionally and exceptionally

Miss Cusworth added: “Employers need to be aware that the fair distribution between workers includes all workers, except the self-employed.  So, where a business has a mixture of permanent staff, directly recruited staff, agency workers and zero hours contract workers in the same location, all of them must be included in the distribution of tips, however that is determined.

“The decision on how to distribute is open to employers, so it does not have to be the exact same proportion for all workers – for example, front of house may be treated differently to back of house – but it must be fair and reasonable and clearly set out in a written policy that workers can access.”

“Alongside, businesses may need a reminder that tips cannot count towards the national minimum wage,” added Miss Cusworth.  The National Minimum Wage Regulations (NMW) apply to any eligible worker, whether they are paid by the hour or some other basis, and calculations must be made to check if the equivalent hourly rate is at the right amount.  Any gratuities paid at work must be on top of the NMW.

Also, some restaurants may have what is known as a tronc scheme.  This is effectively a self-administered scheme for staff, with a troncmaster appointed to distribute tips between staff.  The employer is not able to influence the operation of the scheme or how tips are shared.

[This is not legal advice; it is intended to provide information of general interest about current legal issues]

Why employers need a reflective response to employee beliefs

Recent tribunal judgements on freedom to express gender critical views highlight the growing challenge for employers in safely navigating discrimination in the workplace in the face of increasingly complex social attitudes.

In one victory for gender-critical views, an employment tribunal said that being branded transphobic for holding gender critical views and expressing them was an insult.

Jo Phoenix, a criminology professor at the Open University, had established a network to undertake gender critical research but found herself blocked from speaking on the topic. The tribunal ruled she had suffered victimisation, harassment and direct discrimination due to the university’s failure to protect her from ill treatment arising from her gender-critical beliefs.

This followed hard on the heels of a discrimination ruling in favour of Rachel Meade, a social worker in Westminster City Council, who posted feminist views about the gender debate on her private Facebook page.  A transgender colleague, who was connected on Facebook, complained the views were transphobic and Social Work England responded by initiating a fitness to practise investigation, which triggered Meade’s suspension by her employer.

Criticising the action, the tribunal judgment said this was “indicative of a lack of rigour in the investigation, and an apparent willingness to accept a complaint from one side of the gender self-identification/gender critical debate without appropriate objective balance of the potential validity of different views in what is a highly polarised debate”.

In the UK, the Equality Act 2010 prohibits discrimination and harassment that is related to a protected characteristic.  These are age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation; also pregnancy and maternity where the protection against harassment is subject to slightly different rules.

Harassment is unlawful and occurs when a worker is subjected to unwanted conduct related to a protected characteristic that violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.  Examples include making offensive sexual comments, or abusing someone for their race, religion or sexual orientation.

It means all employers have a duty of care to protect their workers and may be liable for discrimination or harassment in the workplace if they have not taken reasonable steps to prevent it.

Said employment law expert  Miss Amy Cusworth  of Rotherham town solicitors Oxley & Coward Solicitors LLP :  “These tribunal cases highlight the growing pressure on employers to keep pace with both the law and changing attitudes across society.

“Employers are undoubtedly finding it increasingly difficult to deal with complaints where an employee’s beliefs conflict with those of their organisation, other staff or customers, and are searching for clear guidelines.  But it’s not possible to define in black and white terms as each case is fact sensitive.  Having up to date equal opportunities policies is important, but more important is to avoid taking sides without proper review and investigation.

“Perhaps the simplest takeaway is to reflect carefully, recognising that when people voice beliefs they may not fit neatly into a right or wrong category, even though others may find them distasteful or distressing.”

J Phoenix v The Open University

R Meade v Westmister City Council and Social Work England

[This is not legal advice; it is intended to provide information of general interest about current legal issues.]

Court clash over whether a location is a singular destination

The city of Cambridge is renowned around the world.  It is home to one of the oldest and most prestigious universities; it is the place where the laws of association football were first developed; and more recently it has become the beating heart of the high-tech sector in the UK, being known as Silicon Fen.

But using the city name is becoming an increasing challenge for local organisations, with the university making challenges to those using it in their branding.

In the latest case, a small company called Cambridge NeuroTech has spent £30,000 fighting a trade mark challenge by the university, which wanted to prevent the company using the word ‘Cambridge’ in its name.

Registering a trade mark is one of the ways of protecting intellectual property and can be used to protect a brand, such as the name of a product or service.

Once registered, a trade mark owner can use the ® symbol and take legal action against anyone using their brand without permission.  They can also sell and license their brand to others.

To register a place name, anyone applying for a trade mark would need to show it means more than the place itself; it needs to show the name is aligned with the specific goods or services for which it has been registered, to demonstrate an ‘acquired distinctiveness’ .

The university applied for the trade mark saying the name ‘Cambridge’ was often used on its own to refer directly to the university, or its work, and arguing this gave the trade mark the necessary ‘acquired distinctiveness’ in the context of activity aligned with its own.  But while some of the aligned activities registered by the university are obvious, such as university education services or teaching apparatus and instruments, others seem less so, such as stickers, bibles and satellite telephones.

The university argues it is protecting itself, not making any claim to the city name, saying in a statement: “We protect the Cambridge name where there’s a risk of confusion with the work of the university. This is to prevent people from being misled and to support our global mission in education, research and innovation. We do not claim to own the rights to Cambridge across all fields of activity and have never done so.”

Other companies challenged by the university include Cambridge Football Club, Cambridge Rowing, Cambridge Blue Lager, Cambridge Molecular, Cambridge Spark, and Cambridge Quantum Computing.

“Although Cambridge NeuroTech won its fight against the university, it came at a heavy cost and was only a partial victory as the Court directed that the company’s use of the name Cambridge could only be used for goods and not for services,” explained commercial expert Miss Amy Cusworth of Rotherham town solicitors Oxley & Coward Solicitors LLP.

“It is easy to see how small, local businesses in Cambridge may feel they are being strong-armed by the university, considering all the resources at the university’s disposal.  Yes, it’s a place name with a strong association with the university, but it’s also a city where people live and it’s understandable they may wish to highlight they are locals when it comes to their business name.”

They added:  “While this may seem an unusual and unique case, it is still a reminder of the need to ensure all intellectual property matters are reviewed early on when building a business.  It’s costly and time consuming if you end up in court facing a challenge, and equally important are the resources used in establishing awareness with customers, if you find yourself forced to re-brand and start over.  And don’t forget that it’s only the start once you have the registration approved, as it has to be renewed after 10 years.”

[This is not legal advice; it is intended to provide information of general interest about current legal issues].

New transparency rules to keep companies squeaky clean

Company directors, people with significant control of a company, or anyone who files on behalf of a company, must ensure they comply with new transparency rules from March 2024.

Greater scrutiny of information lies at the heart of the new legislation, which is designed to plug potential loopholes that may have been exploited for the purposes of economic crime.  It strengthens the powers of law enforcement agencies, makes it easier to prosecute corporates for certain financial crimes, and introduces a new offence of ‘failure to prevent fraud’ for larger organisations.

Changes include new requirements to provide additional shareholder information, and restrictions on the use of corporate directors.  Limited partnerships will need to file through authorised agents, and they’ll need to file more information than currently.

Called the Economic Crime and Corporate Transparency Act 2023, the Act amends the Companies Act 2006 and succeeds the previously fast-tracked Economic Crime (Transparency and Enforcement) Act 2022 which was drawn up in response to Russia’s invasion of Ukraine and saw the introduction of the Register of Overseas Entities.

 It means that from March 2024, UK-registered companies will face:

• stronger checks on company names
• new rules for registered office addresses and a requirement to provide a registered email address
• a requirement to confirm activities are lawful on incorporation and each year after

Companies House will have greater powers to challenge information that is provided and will be using data matching to identify and remove inaccurate information from the register.  It will also share data with other government departments and law enforcement agencies, who themselves will have greater powers to seize, freeze and recover crypto assets.

While the Act places additional reporting requirements on companies, the new digital processes will do away with some old paper-based requirements.  Companies will no longer be required to maintain internal registers of directors and their addresses, secretaries and people with significant control (PSCs). This information will be filed directly with Companies House and maintained on a central public record.

The Act includes enhanced powers to verify identities of company directors and measures are expected to be introduced later in 2024.  Anyone setting up, running, owning or controlling a company in the UK will need to verify their identity and this will apply to new and existing company directors, to PSC’s, and relevant officers of a registerable relevant legal entity.

It will be a criminal offence for an individual to act as a director while their identity is unverified, and the company will be committing a criminal offence by allowing an unverified director to act.

Said corporate expert Miss Amy Cusworth of Rotherham Town-based law firm Oxley & Coward Solicitors LLP:  “The changes affect companies across the board, and directors will need to keep an eye out to be sure they are complying from March 2024 onwards.  We don’t have a definitive timetable yet, so it will require a waiting watch.

“The direction of travel continues towards greater transparency, so that law enforcement agencies can more easily identify and act on suspicions over sources of wealth and funding, and to tackle potential tax evasion or fraud.”

According to the Government, fraud accounts for more than 40% of all crime in England and Wales and the new Act introduces two major changes.

It has previously been hard to hold a corporate organisation criminally liable where an individual could not be identified as having the ‘directing mind and will’ at the time of the offence.  Now, a ‘senior manager’ test will expand the range of individuals to which liability can be attributed, making it easier for prosecutors to pursue corporates for a ‘relevant offence’.  These include money laundering offences, fraud, false accounting, tax evasion, bribery, and breaches of sanctions regulations.

Also introduced by the Act is criminal liability attributed to an organisation for a failure to protect against fraud, whether by an employee, agent, subsidiary undertaking, or a person performing services on behalf of the company.  This offence of failure to prevent fraud will be limited to so-called larger organisations, which meet two out of three defining criteria, being more than 250 employees; over £36 million turnover; or assets exceeding £18 million.

Guidance on the necessary procedures for ‘failure to prevent’ is expected soon, and larger organisations will need to review risk assessments and their detection and prevention measures once this has been published.

Added Miss Amy Cusworth:  “This guidance is likely to reflect earlier ‘failure to prevent’ offences that were set out in the UK Bribery Act 2010 and the UK Criminal Finances Act 2017, which were designed to tackle bribery and facilitation of tax evasion offences.

“So, the good news is that it is unlikely to involve designing compliance procedures from scratch, but fraud can be notoriously difficult to pin down, so it may yet present a stiff compliance challenge.”

[This is not legal advice; it is intended to provide information of general interest about current legal issues].

Legal Considerations Every Employer Should Know When Working with Freelancers

In today’s evolving job market, more and more professionals are opting for freelance work rather than traditional employment. This shift has prompted businesses to adapt their recruitment practices to accommodate the growing number of freelancers. Hiring freelancers can offer numerous benefits for businesses, such as cost savings and access to specialised skills. However, it’s crucial for employers to be aware of the legal considerations that come with working with freelancers. This article will explore the key legal issues that employers should be mindful of when engaging freelancers and provide guidance on how to navigate these challenges.

Contracts

While it’s not a legal requirement to have a contract with freelancers, it is highly recommended to establish clear expectations and protect both parties’ rights. A comprehensive contract should include the following elements:

• Scope of Work: Clearly define the tasks and deliverables expected from the freelancer.
• Project Timeline: Establish the timeframe for completion of the project.
• Dispute Resolution: Outline how any disputes will be handled, whether through alternative dispute resolution methods or civil litigation.
• Termination Clause: Include a termination clause that specifies the conditions under which either party can end the contract.
• Payment: How, when, and by what method the freelancer should expect payment/s should also be included in the contract.

By having a well-drafted contract in place, employers and freelancers can ensure a mutual understanding of their obligations and minimise potential conflicts.

Intellectual Property Rights

One of the primary legal concerns when working with freelancers is the issue of intellectual property (IP) rights. While employers generally have implied rights to use the material created by freelancers, it’s essential to establish clear guidelines to avoid potential disputes. To address this, employers should consider the following:

• Crediting: Determine whether you will acknowledge the freelancer as the author of the work or prefer to keep their contribution anonymous.
• Promotions: Specify how and by whom the material will be used for promotional purposes.
• Exclusivity: Decide whether you require exclusive or non-exclusive rights to the material.
• Usage: Clearly define how and where the material will be used.
• Editing: Establish whether you have the right to edit or alter the material in the future.

By addressing these considerations upfront and documenting them in a consultancy agreement or terms and conditions, employers can mitigate potential IP disputes.

Payment Terms

Clear and well-defined payment terms are essential when working with freelancers to avoid financial disputes. Employers should carefully consider the following aspects of payment:

• Rate of Pay: Determine whether you will offer a fixed sum for the project or an hourly rate. If using an hourly rate, establish how hours will be measured, recorded and reported.
• Invoicing: Specify if freelancers are required to send invoices and establish the frequency and method of invoicing.
• Payment Timescale: Agree on a payment schedule that works for both parties to ensure freelancers can manage their finances effectively.
• Taxes: While freelancers typically handle their own tax affairs, it’s important to clarify whether they are VAT registered and ensure any tax implications are addressed.

By setting clear payment terms and adhering to them, employers can avoid disputes and maintain positive working relationships with freelancers.

Non-Disclosure and Exclusivity Agreements

Confidentiality is crucial when working with freelancers who may have access to sensitive information about your business. To protect your interests, consider implementing non-disclosure agreements (NDAs) to ensure freelancers maintain confidentiality. Additionally, exclusivity agreements can prevent freelancers from working on similar projects for your competitors during a specified period. These agreements provide legal recourse if any breaches occur and safeguard your proprietary information.

Other Legal Considerations

In addition to the key legal issues mentioned above, there are several other factors employers should be mindful of when working with freelancers:

• Worker Classification: The law has dealt with situations where freelancers were actually found to be employees because of the nature of the working relationship with the organisation that engaged them. Ensure that freelancers are correctly classified as independent contractors to avoid conflict with employment law and avoid potential liabilities.
• Insurance Coverage: Assess whether freelancers require their own insurance coverage for errors, omissions, or negligence related to their work. Consider including clauses in contracts to address insurance responsibilities.
• Workplace Issues: Although freelancers are not traditional employees, they still have the right to a harassment-free and non-discriminatory work environment. Ensure that managers and employees interact professionally and maintain a respectful workplace culture.
• Licensing and Permits: Some professions may require freelancers to hold specific licences or permits to practise legally. Employers should confirm that freelancers possess the necessary credentials to perform their work.

By proactively addressing these legal considerations, employers can foster positive and compliant relationships with freelancers while avoiding potential legal pitfalls.

Conclusion

Working with freelancers offers numerous advantages for businesses, but it also comes with legal complexities. By understanding and addressing the key legal considerations discussed in this article, employers can establish clear expectations, protect their intellectual property, and maintain positive working relationships with freelancers. It’s crucial to consult with legal professionals to ensure compliance with relevant laws and regulations. By navigating these legal considerations effectively, businesses can fully leverage the benefits of working with freelancers while minimising legal risks.

Payroll department get a short lie-in on New Year’s Day

When it comes to New Year’s Day 2024, the payroll department can expect a lie-in, even if a short one, as changes to holiday pay coming into effect that day have been scaled back.

The changes were expected following the UK’s exit from the European Union, and while much of EU employment law has been retained, the Government decided to reform the calculation of holiday entitlement and pay, to simplify calculations.

They were reviewing the combined entitlement most people receive of 5.6 weeks of holiday a year, or the equivalent pro rata, which is made up of four weeks of EU regulated leave and 1.6 weeks of domestic regulated leave.

The two entitlements have different rules for calculating pay, with the EU regulated leave including bonus or overtime payments, and generally cannot be carried over into a new holiday year.  The domestic provision requires only basic rate payment for the 1.6 weeks of holiday pay, and this holiday can be carried over with written agreement.

Plans on the table included introducing a single annual leave entitlement, but following consultation the Government has announced it will maintain two distinct pots, so that workers continue to receive four weeks at their regular overall pay and 1.6 weeks at basic pay.

There is clarification of the detail for what counts as regular pay, which will be set out in legislation to include any overtime regularly paid in the previous 52 weeks; any extra payments for service, seniority or professional qualifications; and any linked to performance of contractual tasks.

There will, however, be changes for those working part-year or irregular hours.  A consultation carried out alongside for these workers has decided on an accrual method, so these workers will accrue holiday at 12.07% of hours worked over the previous pay period.

This is a turn-round from a Supreme Court decision in 2022, which ruled in The Harper Trust v Brazel that the percentage calculation for holiday pay did not comply with the Working Times Regulations 1998.

Consultation by the Government also considered the use of rolled-up holiday pay, by which workers receive their holiday pay every working week through an extra percentage on top of their earned pay, instead of when they take time out for holiday. This was previously unlawful, but now will be allowed for part year and irregular hours workers, and where this method is used, it must be based on a worker’s total earnings in a pay period.

Legislation will also enable leave to be carried over when maternity or family-related leave means a worker cannot take their entitlement during the holiday year.

“Knowing things stay broadly as they are, with some extra clarification on what counts as normal pay will be a positive for most employers, as will the decision for how to calculate holiday pay for those on irregular hours.

“It was inevitable that there would be winners and losers, and those who only work part of the year may find themselves less well off with this outcome,” explained employment law expert  Miss Amy Cusworth  of Rotherham town solicitors Oxley & Coward Solicitors LLP.

[This is not legal advice; it is intended to provide information of general interest about current legal issues].

When dealmakers decide to bite down on a MAC

Court ruling highlights the challenge for buyers if a deal turns sour 

The takeover of Twitter by Elon Musk hit the headlines last year when the billionaire tried to stop the deal going through, arguing that he had been misled about the amount of spam on the platform.

When he announced his intention to abandon the acquisition, rather than pay an over-priced valuation, the board of Twitter took legal action to enforce the original agreement, which saw a victory for the blue bird brand when the deal was finally completed.

Buyers generally look to protect themselves against change during deal-making through material adverse change (MAC) clauses.  These allow a party to a contract to back out or claim compensation if something happens that has a serious impact on the commercial transaction.

But the challenge of getting MAC clauses right has been reinforced by the latest ruling from the Court of Appeal in the case of an IT consultancy acquisition where predicted revenues failed to materialise.

The case involved the acquisition of IT consultancy Copperman by global technology services company Decision Inc.

In the SPA – the sales and purchase agreement that forms a binding legal contract obliging the buyer to buy and the seller to sell – Copperman’s shareholders offered various contractual warranties about the state of the company’s business.  These included stating that “Since the Accounts Date … there has been no material adverse change in the turnover, financial position or prospects of the Company”.

The nature of Copperman’s business meant it had a small number of large projects going on, making a pipeline of large contracts essential to its future performance. Negotiations for the sale were focused on the potential business that was in the pipeline, and during the dealmaking process, the buyer continually asked for the up-to-date position.

The sellers did not always respond, but when they did, it was to present a more optimistic picture than the real position, with inaccurate descriptions of the progress of key contracts that were critical to future performance.  Even before the sale completed, Copperman had been performing significantly worse than the forecast, with turnover running at half of predictions.

Although Decision Inc expressed concerns at information they were given, the deal went ahead with an initial lump sum paid on completion and further payments under an earn-out, if the company hit specific earnings targets.

When the predicted turnover failed to materialise and the company started to generate substantial losses, Decision Inc proposed a restructuring of the acquisition, asking for a repayment of 40% of the initial purchase price, and adjusted earn-out targets.  Copperman’s shareholders refused and Decision Inc took action, claiming a breach of warranties in the SPA.

When the case reached the High Court, the judge agreed there had been a breach of the MAC warranty, awarding damages of £1.31m to Decision Inc.  But now, the Court of Appeal has ruled that the wrong test was applied by the High Court in deciding whether there had been a change in the company’s prospects.

“The Appeal Court’s ruling says the earlier judgement focused on the wrong date, the wrong comparison, the wrong reference data and the wrong assessment period.  It might seem surprising that so much could be wrong, but this speaks to the complexity of MAC clauses and the challenge in interpretation.” explained Miss Amy Cusworth, company commercial expert with Rotherham Town solicitors Firm Oxley & Cowward Solicitors LLP.

“There is no new law in this judgement, just a reinforcement of how difficult it can be to assess material adverse change.  Any MAC clause needs to be well drafted, so it is clear and unambiguous, but that’s not easy and is why these clauses and warranties tend to be the focus of much negotiation during dealmaking.”

She added: “It’s about finding a balance between a cover-all, which may be so generic as to be difficult to pin down, and one that is so specific that it may be easily argued as not relating to given circumstances.”

Decision Inc. Holdings Proprietary Limited v Garbett [2023] EWCA Civ 1284

[This is not legal advice; it is intended to provide information of general interest about current legal issues.]

Route to the door is different for directors

When Suella Braverman was removed from her cabinet post she decided to take a defiant stance, with an open letter criticising PM Rishi Sunak for reneging on promises and calling for a leadership election.

It was a defiant, headline-grabbing move and one that may inspire other discontents looking to speak out against their bosses.  But the path for a dissatisfied cabinet minister is not one that may be translate so easily in the corporate world.

For a company director, while resignation may mean they are no longer bound by general duties, their corporate responsibility can carry on long after stepping down from the board.

Under the Insolvency Act 1986, if a director has allowed a company to continue trading when there is no reasonable prospect of avoiding insolvency, they could be liable, even after resigning.

Similarly, a director who has acted negligently, fraudulently, or in breach of their duties during their time may be held personally liable for any losses later incurred by the company.

Neither will resignation be any protection if a conflict of interest arises through use of any property, information or opportunity gained during a time as director.  And if a director has made personal guarantees to secure any company loans or debts, these remain binding, regardless of whether they have resigned.

Importantly, directors looking to resign must ensure that the company’s finances and other corporate responsibilities are well managed to minimise any risk of personal liability later on, as compliance with the Companies Act 2006 requires directors to exercise reasonable care.

Said corporate expert Miss Amy Cusworth of  Rotherham Solicitors Oxley & Coward Solicitors LLP: “Even if a director leaves the business in a position of financial stability, if the company were later to become insolvent then any director who served during the three years running up to the insolvency could be subject to investigation.

“The impact of this could be far-reaching.  For example, where a director is found to have played a role in the company’s difficulties in those three years, they could be disqualified from being a director for up to fifteen years, which could prevent them continuing in any subsequent role as a director.”

Added Miss Amy Cusworth:  “For an MP, the resignation or dismissal may be very high profile, but it’s effectively a clean break.  For a director, it’s important to be sure that any resignation takes account of the whole picture and they ensure that financial management and other corporate responsibilities are all in good order before they sign the exit paperwork, if they want to minimise any future risk of personal liability.”

[This is not legal advice; it is intended to provide information of general interest about current legal issues].

Overzealous monitoring may overstep data protection boundaries

Employers who harness software to help manage productivity and other employee activity may find themselves inadvertently over-stepping data protection regulations.

The rise of electronic monitoring of employees has risen in tandem with the rise in home working triggered by the Covid-19 pandemic.  While the numbers working from home has dropped from its peak of 49% during the 2020 lockdowns, most recent figures from the Office of National Statistics show that around 40% of working adults are still working from home at least some of the time.

Before the pandemic the figure was around 12.5%, and the dramatic shift has driven businesses and organisations into uncharted territory to manage their newly remote workforce.  Many have addressed the challenge through an increasing use of electronic monitoring to tackle what may be seen as a loosening of control.

New research from the Information Commissioner’s Office, which oversees and regulates data protection and freedom of information in the UK, found that 19% of those surveyed believe they have been monitored by an employer.

Asked how they felt about being monitored, 70% of those surveyed by the ICO said they felt it was intrusive and only 19% were comfortable taking a new job where an employer would be monitoring their activity.

This discomfort echoes findings by the Trades Union Congress in 2022, which found significant and growing support among workers for stronger regulation of AI and tech-driven workplace surveillance, with more than 70% saying they believed technology-informed decision-making could increase unfair treatment.  The TUC research found some sectors reporting very high levels of surveillance, at more than 70% across the financial sector and the wholesale and retail sectors.

“Developments in software have made a range of options available to employers, making it all too easy to implement a form of monitoring, whether to check if people start work on time or to monitor activity – such as through the number of keystrokes being made – but that ease of monitoring should not be taken for granted.  Any monitoring has to comply with data protection law,” explained Miss Amy Cusworth, employment expert with Rotherham town solicitors Oxley & Coward Solicitors LLP.

“There’s also the potential breakdown in trust and reputational damage that may come through implementing what employees may consider to be a surveillance culture.”

To support organisations in ensuring that any monitoring of workers is undertaken lawfully, transparently and fairly, the ICO has issued guidance for employers, which highlights some of the key considerations.  The privacy watchdog has also issued a warning to employers, saying they will take action if people’s privacy is threatened.

Monitoring workers is only legally allowed if one of six situations apply: consent; contract; legal obligation; vital interests; public tasks; and legitimate interests.

Miss Cusworth added:  “Any surveillance needs to measure up against at least one of these criteria, although in some situations it may be hard because of the imbalance in an employer/employee relationship. In some circumstances employees may feel they would be putting their job at risk if they were to dispute a planned form of monitoring.

“The best approach is to ensure not just that any action is legal, but also be sure that employees know what is happening and have a sense of trust. It’s too easy for surveillance to feel like an invasion of privacy, whether or not it passes the legal test.  Policies also need to be reviewed and updated regularly, to keep in line with advances in technology.”

[This is not legal advice; it is intended to provide information of general interest about current legal issues].

No big bonfire for holiday regulations

Managers on the look-out for changes in employment law following Brexit need to prepare for new holiday entitlement and pay calculations.

The Retained EU Law (Revocation and Reform) Act 2023 became law in June, setting out how EU-based laws are to be treated in future.

Most employment law will continue to stand, giving employers some certainty, but one immediate priority for reform is the calculation of holiday entitlement and pay, as the Government is keen to simplify calculations.

Under current regulations, most people are entitled to 5.6 weeks of holiday a year, or the equivalent pro rata, made up of four weeks of EU regulated leave and 1.6 weeks of domestic regulated leave.

Problems arise because the two entitlements have different rules for calculating pay.  For the four weeks of EU leave, calculations must include bonus or overtime payments, and generally this cannot be carried over into a new holiday year.

But under the domestic provision, only basic rate payment is required for the 1.6 weeks of holiday pay, and this holiday can be carried over with written agreement.

“We don’t know yet whether the government will decide that all pay should be at full rate for the whole 5.6 weeks, including payments such as bonuses, commissions and overtime, or at the basic rate,” explained employment law expert Miss Amy Cusworth of Rotherham town solicitors Oxley & Coward Solicitors LLP.

“Unfortunately, one side or the other is likely to be disappointed.  Employers may be focused on the potential burden of additional costs if the calculation results in an uplift, but equally there may be staff disputes if the outcome translates as less in pay packets.”

The other proposal to simplify holiday pay is by using rolled-up holiday pay, by which workers receive their holiday pay every working week through an extra percentage on top of their earned pay, instead of when they take time out for holiday. Presently, this is not allowed and holiday pay must be paid when taken.

Miss Cusworth added:  “On the positive side, some employers may find that this could simplify holiday calculations for irregular hours but, if implemented, it will require contracts and pay slips to be updated.

“The other issue with rolled-up holiday pay is that can lead to workers not taking time out because they struggle to budget for holiday times without income.  This can have a negative effect if workers suffer stress and burnout through a lack of downtime, so it may require a system to ensure everyone takes their annual leave.”

[This is not legal advice; it is intended to provide information of general interest about current legal issues].

Employment non-competes look set to shrink

The Government plans to prune restrictions around non-compete clauses when employees leave to join a competitor or set up a rival business, according to a policy paper just published.

Proposals in the smarter regulation to grow the economy policy paper include limiting the length of non-compete clauses to a maximum of three months.  Typically, such clauses are drafted to limit employees from acting for up to six to 12 months.

The use of non-compete clauses in employment contracts is designed to protect business interests and may restrict a leaving employee from working for a similar business, or setting up a competing business, within a defined geographical radius and for a defined time.

Non-compete clauses may also be framed to prevent a leaving employee from soliciting or dealing with clients or poaching colleagues within a defined period, but the proposed reforms do not extend to such clauses. Nor do they include so-called ‘gardening leave’ which is used to keep an employee out of the market by keeping them on the payroll but requiring them to stay out of the workplace.

The three-month cap will apply to contracts of employment and worker contracts in England, Wales and Scotland, but not to partnership or shareholder agreements, where power dynamics are likely to be more balanced.

“The government has held back with its pruning shears when it comes to other typical protections for employers, such as gardening leave,” said employment law expert Miss Amy Cusworth  of Rotherham town solicitors Oxley & Coward Solicitors LLP, “and while there is no time frame for when the legislation may be drafted and on the parliamentary agenda, employers might benefit from planting the seeds that will protect against future changes. That could include evaluating existing confidentiality clauses and those restricting employees from poaching clients if they leave, and tightening up where necessary.

“Also, to keep things in perspective, it’s worth remembering that very lengthy non-competes are rarely upheld, and as an employer you are both poacher and gamekeeper: protecting the business when staff move on is essential, but you may also have greater opportunity to recruit.”

The changes set out in the policy paper are described as being intended to boost the UK economy by improving flexibility in the workplace and the opportunity to recruit talent.  Other proposals cover changes to cut the amount of reporting on Working Time Regulations, and to simplify employment regulations when a business transfers to a new owner.

The view that competitive labour markets can play a crucial role in increasing competitiveness and economic growth, is reflected in other countries.  The New York State Assembly has just approved a bill (June 2023) that bans workplace non-compete agreements, joining other US states such as California, Oklahoma, and North Dakota.

Miss Amy Cusworth:   “Employers also need to be aware of the impact of shorter non-competes on possible enforcement action, as the window for proceedings will be tight.  Adding a clause to existing contracts, requiring employees to share information at the earliest opportunity, is an option to consider.

“Generally, it’s good practice to keep a close ear to the ground, and to have procedures to monitor for any unexpected activity in data collection by employees, or other relevant triggers, and that’s important whatever the future for non-competes may be.”

[This is not legal advice; it is intended to provide information of general interest about current legal issues.]

How harassment hits both ways

Status does not confer special protection when it comes to bullying or sexual harassment

Bullying has been hitting the headlines in recent weeks, demonstrating that no matter how high you fly, wings can be burned.

It’s behaviour that has seen Dominic Raab forced to resign as deputy prime minister and justice secretary, and CBI boss Tony Danker pushed out for behaviour that left staff feeling intimidated.

“Such cases show the importance of having the right policies and working practices in place, and for organisations to work on creating the right culture for everyone, especially for those at the most senior level as they cannot be ‘above’ such things,” explained Miss Amy Cusworth, employment expert with Rotherham Town solicitors Oxley & Coward Solicitors LLP.

In the UK, the Equality Act 2010 prohibits discrimination and harassment that is related to a protected characteristic.  These are age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation; also pregnancy and maternity where the protection against harassment is subject to slightly different rules.

And while bullying itself is not against the law, it can easily become harassment, which is unlawful. Harassment is when a worker is subjected to unwanted conduct related to a protected characteristic that violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.  Examples include making offensive sexual comments, or abusing someone for their race, religion or sexual orientation.

It means all employers have a duty of care to protect their workers and may be liable for discrimination or harassment in the workplace if they have not taken reasonable steps to prevent it.

High-flying government minister Dominic Raab was accused of bullying by civil servants at both the foreign office and the justice office during his time as a cabinet minister.  An independent investigation agreed, saying that he was “persistently aggressive” in meetings and had abused or misused his power in a way which could undermine and humiliate colleagues, with Raab resigning as a result.

And for Tony Danker, a female employee claimed that while director general of the CBI, he made unwanted contact with her, which she considered to be sexual harassment.  Concerns by other members of staff over inappropriate behaviour, which included interacting with their personal social media profiles, has seen the CBI undertake an independent investigation and ask Danker to step aside.

“Everyone is entitled to work in a safe environment, free from harassment, including raised voices and inappropriate attention, whatever the circumstances and whatever their status,” explained Miss Amy Cusworth, employment expert with Rotherham Town solicitors Oxley & Coward Solicitors LLP.  “It’s interesting that both Raab and Danker felt they were unfairly judged, as set out in their respective resignation statements, but it’s vital that policies and culture in the workplace are clearly understood and exhibited at all levels.

“Importantly, when complaints are made against senior staff, clear action should be taken to tackle the sort of behaviour which caused the problem.  In the case of the CBI, they opted not to escalate the original complaint to a disciplinary process, responding only when a national newspaper queried the decision.  A root and branch independent review has been promised now, but some are suggesting it may be too late to restore confidence in the business lobbying organisation.”

But bullying is not confined to those in more senior positions and a regular review can help uncover instances of bullying at all levels and identify routes to resolve tricky relationships.  One recent case highlighted the challenges that can arise, here for a manager in charge of a neurodiverse employee who exhibited challenging behaviour, at times reducing the manager to tears.  Reviewing the case of McQueen v General Optical Council the Employment Appeal Tribunal upheld a decision that the employee had not been discriminated against when he was disciplined for aggressive and disruptive conduct, which he had argued was due to his recognised disability.

Miss Amy Cusworth added: “This case was complex, and employers can’t assume it provides a template for a similar situation, but it does demonstrate how an individual may feel they can expect ‘special’ treatment and are allowed to behave differently to others, whether through seniority or for other complex reasons, such as here.”

[This is not legal advice; it is intended to provide information of general interest about current legal issues.]

A right royal holiday clash

Holiday pay for the additional bank holiday on 6th May to celebrate the upcoming coronation is giving employers a headache before a toast has been raised to the new King.

The long weekend is intended to give the nation the chance to take part in community celebrations and public events, but by falling in the same month as two existing bank holidays in May, employers face a month of disruption.

And with there being no legal requirement for bank holidays to be given as additional paid leave, it’s creating grounds for potential discord between organisations and their staff over the royal date.  Employers are having to revisit employment contracts, whether staff are seeking the day off, or a business is choosing to close for the day.

“Holiday pay can be a minefield for employers, whether working out entitlement for part-year workers or deciding whether to include bank holidays as part of a worker’s statutory annual leave, or offering the days as extras, on top,” explained employment law expert  Miss Amy Cusworth  of Rotherham town solicitors Oxley & Coward Solicitors LLP.

“Any entitlement to bank holidays will be subject to individual employment contracts, and there are many different ways they may be worded, just as long as the basic requirement for paid holiday is satisfied.”

Someone working a five-day week must be given 28 days of paid annual leave a year, the equivalent of 5.6 weeks of holiday.  For those working part-time or irregular hours, the calculation is made pro rata.

When it comes to the employment contract, some choose to include the bank holidays within the 28 days, and for others they may be offered on top.  But for this year’s additional public holiday, identifying whether or not workers are entitled to the day off as paid leave will depend on precisely how their contract is worded.

One example is where the contract covers for 20 days of paid leave “plus all public holidays” on top, adding up to 28 days in a usual year.  This year, it would give an automatic right to the extra day of paid leave on top.

If the contract said 28 days of holiday “including all public/bank holidays” again, staff are entitled to take the day off, but they would have to deduct it from their overall holiday allowance.

However, if the contract specified the usual number of bank holidays, as plus or including “eight public / bank holidays” then taking the additional coronation day would not be a contractual right for the worker, and subject to the usual process for holiday leave requests to the employer.

And it’s the flipside for those businesses who want to close for the day where staff may prefer to work.  Here, it may involve asking workers to take enforced leave, using up one of their days of holiday, or by offering an additional day of paid leave.

Name added: “A full review of holiday pay each year is a good idea, to be sure you are keeping up to date on curve balls like the coronation holiday and other case law that may affect calculations.”

“Meantime, if you need people to work on the coronation bank holiday, but they are entitled to take the day off according to their contract, then this would require a change to their employment contract, and they would have to give their consent for the change to be made.”

[This is not legal advice; it is intended to provide information of general interest about current legal issues].

Another step towards family and maternity leave security

New legislation to protect those who are pregnant or returned from maternity, shared parental or adoption leave came a step closer following a second reading in the House of Lords this month (3 March).

The measures are designed to tackle the discrimination reported by women during pregnancy and maternity leave, with 77% saying they had a negative experience or suffered potential discrimination during this time.  Some 11% of those canvassed reported being dismissed or made compulsorily redundant, when their colleagues were not.  Some 20% of mothers reported other financial loss such as demotion or missing out on promotion and being excluded from non-salary benefits.

Subject to the Bill becoming law in its current form, pregnant women and those back from family leave should find themselves in a stronger position, with employers required to offer alternative vacancies to anyone under threat of redundancy in those situations.

Under current rules, employers are required to offer a suitable alternative vacancy where one exists before offering redundancy when an employee is on maternity leave, shared parental leave or adoption leave.

The Pregnancy and Maternity Discrimination Bill, introduced by Dan Jarvis MP and backed by the government, will extend this redundancy protection to pregnant women before they take maternity leave, and for new parents during the six months after they return to work from a relevant form of leave.

Said employment law expert Miss Amy Cusworth  of Rotherham  town solicitors Oxley & Coward Solicitors LLP:  “This Private Member’s Bill will introduce a significant level of additional security to parents taking time out of the workplace to raise a family, putting them at the top of the queue for an alternative role.  It’s an important step in overcoming reported discrimination against pregnant women.”

She added:  “Employers should get up to speed on the draft legislation now, so as to have systems in place ready for implementation, such as processes to identify the timeframe of earlier periods of maternity leave when implementing any redundancies.”

[This is not legal advice; it is intended to provide information of general interest about current legal issues].

Be authentic – but not in the workplace

A crack-down by British Airways on social media posting by staff has highlighted the challenge for employers in keeping policies up to date in a fast-moving digital environment.

The new guidance from the airline bans staff from posting when they are ‘professionally engaged’ or including any potentially sensitive content that could pose a risk to the business, customers or colleagues, whether on or off duty.

But the policy change is upsetting many crew who have been posting from the cockpit with images of stunning skylines, and sometimes celebrity passengers.

“It’s understandable that this decision may disappoint those who have amassed a large following with their behind-the-scenes look at aircraft and the exciting locations they journey to,” said Miss Amy Cusworth, employment lawyer with Rotherham-based solicitors Oxley & Coward Solicitors LLP.

“But BA’s approach is an important reminder for all employers to review and update their social media policies regularly and provide refresher training to their workforce – particularly with new apps creating new challenges.”

One social media app which has attracted huge interest in recent months is BeReal, which invites users to share authentic real-time photos with friends as an antidote to the highly staged, filtered images that have become commonplace.

From being relatively unknown in early 2022, BeReal has become one of the top five downloads in the UK, but is under scrutiny for its potential impact in the workplace.

The app notifies users at a random time each day to capture a picture within a two-minute timeframe, showing themselves in the moment, whatever they are doing.  This is causing headaches as it can lead to employees inadvertently sharing confidential information if they take photos at work that include computer screens or papers on their desk.

Miss Cusworth added:  “To guard against such situations, employers need a robust social media policy in place, which sets clear guidelines for employees’ use of social media both in and outside the workplace.

“The policy should include awareness of company reputation, protection of company confidential information, third-party confidentiality, appropriate use of company resources, and guidelines on appropriate use of social media, among other things.  Most importantly, staff need to be regularly updated and trained on the policy.”

If an employee accidentally discloses confidential information on social media, the employer should take prompt action, including disciplinary proceedings if necessary.  For employers in regulated sectors such incidents may require a report to their regulator and confirmation that steps have been taken to prevent a repeat occurrence.

[This is not legal advice; it is intended to provide information of general interest about current legal issues]

Employers told to gear up for impending harassment legislation

New legislation is set to place greater responsibility on organisations to protect employees against harassment, including sexual harassment.

Employers are being urged to act in readiness, with the proposed legislation set for its third reading in February and expected to become law during the next year.

Harassment in the workplace is prohibited under the Equality Act 2010 and once passed, the Worker Protection (Amendment of Equality Act 2010) Bill 2022-23 will extend the range of safeguards for  employees.  One is protection against third party harassment during the course of their employment, such as by customers or clients, and the employer may be held liable if they fail “to take all reasonable steps to prevent the third party from doing so”.

The Bill also tackles sexual harassment suffered by employees in the course of their employment, by placing a new duty on employers to take all reasonable steps to prevent such harassment.

“While the Bill is still going through parliament, employers should be gearing up in readiness, and ensuring the right processes are in place,” explained Miss Amy Cusworth, employment lawyer with Rotherham-based solicitors Oxley & Coward Solicitors LLP.

“The benchmark is likely to be high, to encourage employers to be proactive in tackling discrimination in the workplace. While the term “all reasonable steps” is not defined by statute, we know from existing case law what is expected of an employer.  Any tribunal will be looking for robust policies and evidence of steps taken to actively prevent harassment.”

Miss Cusworth added: “It all adds up to a tough new round of legislation for employers.  The harassment by third parties can relate to someone over whom the employer has no direct control, with liability set to apply whether or not the employer is aware of the actions of the third party.

“And the penalty will be higher where the employer is found to have breached their duty for any sexual harassment claim, as an uplift of up to 25% of the compensation award is currently proposed to be added on.”

[This is not legal advice; it is intended to provide information of general interest about current legal issues].

Embarrassing regulation breach for the Ministry of Justice 

Businesses must ensure they are on the right side of the regulations when it comes to advertising or posting on social media.   

The reminder follows the news that the Ministry of Justice (MoJ) breached advertising rules when they conducted a recruitment campaign to recruit prison officers.

The photograph used in the advert showed a white prison officer interacting with a black inmate.  A complaint was made to the Advertising Standards Authority (ASA) on the grounds that the advertisement perpetuated negative ethnic stereotypes.

The Ministry of Justice (MoJ) is the government department which is responsible for delivery of the country’s justice system and their stated aim is to “protect and advance the principles of justice… to deliver a world-class justice system that works for everyone in society”.

When challenged over the advertisement, which ran on Facebook for three months earlier this year, the MoJ explained that the photographs used throughout the ad campaign, of which this was one example, featured real officers and prisoners. They argued that there was no intention to portray a black man as a criminal, it was simply one example of a real person who had been convicted of an offence and should be considered across the whole campaign.

The ASA disagreed with the MoJ’s argument, saying the post should be considered as a stand-alone item, as Facebook users would have experienced it.  And they decided that the ad was likely to cause serious offence on the grounds of race, by reinforcing negative stereotypes based on the association between black men and criminal activity.

The ASA is the UK’s independent advertising regulator and is responsible for making sure that ads across UK media stick to the advertising codes, which are written by the ASA’s sister organisation, the Committee of Advertising Practice (CAP).

The advertising codes reflect the law, and the CAP code which applies to non-broadcast advertisements, sales promotions and direct marketing communications includes postings on social media.

The ad breached CAP Code (Edition 12) rule 4.1 (Harm and offence), which requires particular care must be taken to avoid causing offence in relation to those characteristics protected by the Equality Act 2010, and cover age; disability; gender; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

In their ruling, the ASA said: We considered the ad’s focus on the positive qualities of the white prison officer and negative casting of the black prisoner was likely to be seen as perpetuating a negative racial stereotype.”

“This ruling demonstrates how important it is to have strong procedures and processes for checking all media activity by an organisation,” said employment expert  Miss Amy Cusworth  of Rotherham town solicitors Oxley & Coward Solicitors LLP.

She added:  “As well as careful checking of advertising and direct marketing campaigns which may be developed by external agencies, commercial organisations need to have clear guidelines and control over their entire social media output.

“It’s not just paid-for content that falls under ASA guidelines, as they also oversee all social media postings, whether on Facebook, Twitter, TikTok, Instagram or elsewhere, making this a minefield to manage whether delivered internally or externally.”

[This information is not intended as legal advice]

Fire and rehire – why employers need to watch out

Fire and rehire – why employers need to watch out

For many years organisations have been using dismissal and re-engagement, often referred to as ‘fire and rehire’, as a method available to make a contractual change between the employer and employees. However, in February 2022, the High Court issued an injunction against Tesco, preventing them from operating this way.

The Tesco case – what happened?

In 2007, Tesco made operational changes. They relocated warehouses and staff working in the warehouses, with staff retaining pay. Tesco assured the employees that the retained pay would remain and could not be removed – it was to be a permanent clause within their contracts.

However, long term, Tesco did not view this as sustainable, and in 2021, employees who had retained pay featured in their contracts were offered a monetary incentive to encourage them to ditch the retained pay clause. Although this was offered to employees as optional, they were also all informed that contracts were going to be terminated if they did not agree. Employees who chose not to take the incentive were to have their contracts terminated by Tesco but were to receive an offer of re-engagement. Ultimately, Tesco sought to fire and rehire in order to remove the retained pay from the employees’ contracts.

In February, the High Court issued an injunction against Tesco to prevent this from happening, but now The Court of Appeal has overturned this decision, allowing Tesco to go ahead with its plan to fire and rehire.

What does this mean for businesses?

When the High Court offered its judgment in February, there was a lot of worry about what this would mean for businesses as the hire and rehire route was effectively outlawed. However, The Court of Appeal now going back on this view means that employers can fire and rehire employees without worrying to the same extent about legal repercussions, but this does not mean it should be a frequently used method.

What are the risks of fire and rehire?

Employees have a growing awareness of their rights, and although employers can utilise a fire and rehire process, it is unlikely to make them popular with their own employees or the general public. Now the precedent has been set, more claims can be brought against employers using this system, so it is always important to consider if the risks of litigation and bad publicity will be less than the benefits of fire and rehire will provide.

Final destination on the route to full tipping

Final destination on the route to full tipping

Hospitality workers must receive all gratuities and service charges without deductions in future

Hospitality and other service sector businesses need to gear up for gratuity changes, with new legislation designed to tie up loose strings over tipping protocols, to ensure all tips and service charges are handed over to staff.

The long-awaited legislation, drawing on recommendations from the Government’s Good Work Plan proposals, will make it unlawful for employers to withhold tips and service charges from staff, and give workers new rights to see an employer’s tipping record.  The new rules will come into force after winning backing from MPs and a new statutory code of practice is set to be developed, to provide businesses and staff with advice on how tips should be distributed.

A wider employment bill was intended to incorporate these changes, but when the bill was subject to ongoing delays, MP Dean Russell put forward a private members’ bill to tackle the issue. The government, which formally backed the Employment (Allocation of Tips) Bill at its second reading in parliament, said it should benefit more than 2 million workers.

The new rules are designed to overcome situations where employers make deductions from tips or withhold service charges, with many so-called ‘administration’ charges levied where tips are given through card payments.

“This change is finally in sight and employers operating a business with gratuities and tipping involved should get on board with matching up to the new rules,” said employment law expert Miss Amy Cusworth of Rotherham-based Solicitors Oxley & Coward Solicitors LLP.

Whether tips are paid through a set percentage service charge or added at the discretion of the customer in cash or card payments, historically there has been no control over how tipping in the workplace is managed, just a voluntary code of practice which encourages employers to be transparent.

The only restriction there has been on employers is that tips cannot count towards the national minimum wage (NMW).  The NMW Regulations apply to any eligible worker, whether they are paid by the hour or on some other basis, and calculations must be made to check if the equivalent hourly rate is at the right amount and any gratuities paid at work must be on top of the NMW.

Also, some restaurants may have what is known as a tronc scheme.  This is effectively a self-administered scheme for staff, with a troncmaster appointed to distribute tips between staff.  The employer is not able to influence the operation of the scheme or how tips are shared.

She added:  “While this legislation may be controversial to some employers, this is now the final call for ensuring staff are receiving their full fair share of tips received.  The move towards cashless transactions has been a further barrier to workers who want to see how much has been given in tips and this will help tackle that issue with greater transparency in future.

“One aspect that employers need to face up to is the handling of tips when customers add it on to their card payment.  In the past, many businesses have made a deduction for the related transaction fees applied on card payments, before passing the cash on to workers, but this will no longer be permitted.  In future, the whole sum must be passed on.”

[This is not legal advice; it is intended to provide information of general interest about current legal issues].

School’s out as holiday pay ruling lands

School’s out as holiday pay ruling lands

 Holiday pay for those who work only part of the year and have no contractually set hours should be calculated on the basis of average earnings, the Supreme Court has confirmed.

In a judgement that is likely to mean higher holiday pay payments for many in the education sector, with the possibility of claims for unlawful deductions where pro-rata calculations have been made in the past, the Supreme Court dismissed an appeal over the ruling in The Harper Trust v Brazel.

The Supreme Court reinforced that holiday pay for part-year workers should be calculated using the averaging method on earnings over the 52-week period prior to taking leave, rejecting Harper Trust’s argument that a part-year worker’s leave be calculated on a pro-rata basis to account for weeks not worked.

The case was brought by part-time music teacher Lesley Brazel who worked term-time at a school on a permanent contract of employment but was paid only for hours worked.  These varied from term to term, depending on the number of children taking music tuition. Under the terms of her contract she was entitled to holiday of 5.6 weeks – in line with the statutory entitlement – and was required to take that holiday out of term time, with her holiday pay calculated on a pro rata basis.

But the Court of Appeal ruling,  upheld by the Supreme Court, said there was no reason to pro-rata entitlement as the Working Time Regulations state that holiday pay should be calculated in accordance with the week’s pay provisions of the Employment Rights Act 1996.  Where a worker does not have normal working hours, this is taken to be the worker’s average weekly pay in the 52 weeks before the leave starts, excluding any weeks in which no remuneration was payable.

Amendments to the Working Time Regulations introduced in April 2020 extended the reference period for calculating the average week’s pay due for statutory leave to 52 weeks from the 12 weeks which was in force at the time of the original claim by music teacher Lesley Brazel.

“Holiday pay continues to be a minefield.  Many employers have used a pro-rata calculation of annual pay to work out holiday pay for part-year workers who do not have normal working hours, and while some may have adopted the averaging method following the Court of Appeal’s judgement, this further ruling by the Supreme Court may result in a flurry of historic claims“, said employment law expert  Miss Amy Cusworth  of Rotherham  town solicitors Oxley & Coward Solicitors LLP.

“A full review of holiday pay is a good idea, to be sure you are keeping up to date on this front.  This will help get it right for the future while also identifying any retrospective issues which could be subject to a claim for earlier unlawful deductions.”

[This is not legal advice; it is intended to provide information of general interest about current legal issues].

The power of naming and shaming – Solicitors Rotherham

The power of naming and shaming

Hitting the right note when it comes to banter and pronouns in the workplace

By Miss Amy Cusworth, employment law specialist with Rotherham Solicitors, Oxley & Coward Solicitors LLP

“What’s in a name?” asks Shakespeare’s Juliet, declaring that a rose would smell just as sweet whatever we call it.

But that argument is unlikely to hold water in today’s working environment.  Getting names exactly right is increasingly important, whether it’s the pronoun you use for someone or the informal ways you may address colleagues, using a nickname or endearment.

I was only joking…

A ‘term of endearment’ suggests affection, but such expressions may result in individuals feeling harassed or discriminated against.

And that’s important to consider when you see how workplace banter is driving a surge in claims against employers: analysis[1] identified a 45 per cent rise in such claims between 2020 and 2021.

These claims are under the Equality Act 2010 which protects people from discrimination, harassment and victimisation related to one of several protected characteristics. These are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

For banter to be unlawful, its purpose or effect must violate a person’s dignity, or create an intimidating, hostile, degrading, humiliating or offensive environment.

This is where employers need to be taking temperature checks on the underlying culture if they wish to avoid problems arising.  Employees might think it’s all just part of a jokey environment, but their comments may constitute bullying or harassment if someone is subjected to discriminatory jokes, and this can be hot territory when it comes to age, gender, sexual identity, race and nationality.

Examples from recent claims demonstrate this, first of all in relation to age, whether young or old.  One 69-year-old plumber was known as ‘half-dead Dave’ by colleagues and won £25,000 in damages for age-related discrimination.  A similar award was made to a woman whose boss humiliated her in front of colleagues and customers by calling her a ‘dinosaur’ because she was going through the menopause.

At the other end of the age banter scale, Frances Fricker, a woman in her 30s, won her claim of sexual harassment after her boss referred to her as ‘good girl’, even after she objected, and harassed her to change her profile images on social media saying she looked fat.  As the tribunal judge said:  “Some phrases, whilst not regarded as taboo, are generally regarded as inappropriate in the workplace. Referring to a woman in her late-30s with a school-age child as a girl is demeaning.”

And, as the judge went on to say: “Language evolves over time. Words and phrases that might once have seemed harmless are now regarded as racial, homophobic and sexist slurs.”

This is reflected in a claim for racial harassment which was upheld after an employee of Indian origin was called a ‘cheeky monkey’, although the tribunal accepted this could in other circumstances have been considered innocent banter.

Outcomes such as this demonstrate how hard it can be to police colleague interactions as an employer.  Comments may rely on context, and there is often a fine line between what may be considered harmless banter and what may amount to unlawful discrimination or harassment under the Equality Act.

But defending cases for unlawful discrimination and harassment is expensive and time-consuming and with no limit on the amount that can be awarded, it’s important that employers try to mitigate the risk, with appropriate policies and regular diversity and equality training for staff.  A clear path for staff to raise concerns is also important, and when such concerns are raised, action must be clear and purposeful.   Also to bear in mind is that it may not be the member of staff who complains, but a colleague who is unwilling to stand by and allow name-calling or bullying to take place.

Just call me xyr…  

Another naming minefield for employers relates to gender identity and preferred pronouns.

Should you encourage staff to add pronouns to their email signatures?  And do you understand all the different expressions of gender identity, as it may not simply be a choice of he/him, she/her, they/them.

Recently it was revealed that Soho House, the private members’ club for those in the arts, politics and the media, offered a choice of 41 pronouns for its members to choose from, ranging from the mainstream to the obscure, including eir, ners, pers, thon and xyr.   The topic even has its own special day: International Pronouns Day is the third Wednesday in October.

While the practice of adding pronouns to emails seems to have started in academic circles it has now spread widely across the corporate world.  Some employees may actively wish to give their pronouns, and that is their choice, but staff are also being asked to cite their preference and many report this is not just on emails, but also within meetings and online profiles, such as LinkedIn.

While enforcing a company-wide policy may be presented as a move towards greater openness and inclusivity, some would argue this can act to exclude those with different views and potentially breach equality legislation itself.  Mandating declared pronouns or creating situations where it’s difficult to avoid, could be coercive.

The extent to which the topic has become contentious is reflected in the guide developed by campaign group Sex Matters on the use of gender pronouns in the work environment. The group was launched by Maya Forstater, who won a landmark appeal tribunal over gender self-identification.

She had made a claim for discrimination after being sacked for saying that trans women are male or ‘honorary female’, arguing that sex is immutable and should not be conflated with gender identity.   On appeal, the judge ruled that her comments were protected as a ‘philosophical belief’ within the meaning of the Equality Act 2010, saying that the only types of beliefs excluded from protection were extreme ones “akin to Nazism or totalitarianism”.

The ruling said that Forstater’s “gender-critical beliefs, which were widely shared, and which did not seek to destroy the rights of trans persons, clearly did not fall into that category”.

So, this landmark case confirmed that both those holding a gender identity belief and those holding a gender critical belief are protected under the law.

But whether conduct arising from such belief may be discriminatory to trans-people is a different question, relying on the facts of each case.  Certainly, someone with gender critical beliefs cannot indiscriminately address trans persons in derogatory terms or ignore preferred forms of address, as this is likely to constitute harassment or discrimination.

This is the challenge facing Dr Mackereth, a declared Christian, who is appealing against a tribunal decision which found that he was not discriminated against on the grounds of religion or belief when he was dismissed for refusing to address transgender patients by their chosen pronoun.

Dr Mackereth is relying on a theological argument and claims that his belief is shared by the majority of Christians.  An important difference between the Forstater and Mackereth cases is that the doctor argues that his beliefs entitled him to misgender transgender individuals, where Ms Forstater expressed her beliefs but used preferred pronouns.

These cases demonstrate just some of the difficulties faced by employers in looking to create a culture that is inclusive and emphasises the importance of appropriate policies and keeping up to date with this fast-moving area of employment law.

Frances Fricker vs Gartner UK Ltd
Forstater v CGD Europe and ors (Index on Censorship and Equality and Human Rights Commission – intervening) 

Dr David Mackereth  v (1) The Department for Work and Pensions (2) Advanced Personnel Management Group (UK) Ltd

[1] GQ|Littler

Risk management when the commute is all at home Solicitors Rotherham

Risk management when the commute is all at home Solicitors Rotherham

The Government’s Living with Covid strategy removed one of the final hurdles towards a return to full-time office working, but many are expected to continue working from home under the new regime.

The potential of reduced property costs combined with positive feedback about home-working from employees has seen many companies agreeing working arrangements which enable staff to continue to work from home all or part of the time.

But despite the ending of many Covid-related mandatory requirements, welfare in the workplace remains a top priority, whether at home or company-owned premises.  Companies have a legal obligation to protect workers from the risk of physical and mental wellbeing, wherever they are based.

One recent case to hit headlines involved a German worker, who won a claim for injury after falling on the stairs to his home office.  The Court ruled that taking the stairs at the start of the day to his home office was solely for the purpose of starting work and an insurable activity in the interest of the employer.

Said Miss Amy Cusworth, employment expert with Solicitors Rotherham, Oxley & Coward LLP : “This case was heard in the German national courts, but it’s a useful prompt of the legal obligations on companies in the UK. There is a duty to conduct a risk assessment of the working environment for employees and to have insurance in place, wherever individuals are based.”

The Health and Safety at Work Act 1974 requires employers to take all reasonable steps to ensure the safety of its employees to provide a safe place of work, a safe means of access to that place of work, a safe system of work, and safe plant and equipment.

This includes conducting regular risk assessments of the working environment and where employers are unable to carry out a full risk assessment, it may involve asking employees to undertake a self-assessment of their workspace and equipment.  Any changes needed for a safe and healthy environment are the responsibility of the employer.

Organizations must also ensure that their insurance covers employees working from home and  must ask individual employees to check there are no restrictions imposed on them working from home by their home insurer, mortgage provider or landlord.

As well as physical safety, mental wellbeing is high on the agenda, with the Health & Safety Executive saying that stress, depression and anxiety constitute more than half of all new cases of work-related ill health.

The Health and Safety Executive has guidance for employers on working from home arrangements and guidance on undertaking risk assessments.

Miss Cusworth added:  “As well as maintaining health and safety requirements, regular assessments may be invaluable in keeping other aspects of home-working monitored and up to date, such as data privacy and confidentiality.   Diligence in managing IT issues remotely, such as applying security patches and updates, and keeping policies and processes under constant review, can make all the difference in addressing vulnerabilities and avoiding breaches.”

World Autism Awareness Day – The law and neurodivergence in the workplace – Solicitors Rotherham

World Autism Awareness Day – The law and neurodivergence in the workplace – Solicitors Rotherham

World Autism Awareness Day 2022 will be celebrated on Saturday 2nd April, and is an excellent opportunity for employers to learn more about assisting workers with Autism Spectrum Disorder, a form of neurodivergence. In this article, we take a look at neurodivergence in the workplace and how employers can both comply with the law and support neurodivergent workers.

What is neurodiversity?

Neurodiversity is a broad term for the infinite number of ways the human brain can operate, leading to diverse ways of thinking, retaining memories, and paying attention.

People work best when they are supported in different ways. Those with dyslexia, ADHD or autism often struggle in a traditional workplace environment to perform to the best of their ability. Understanding neurodiversity can help employers make better decisions and get the most out of their team.

Supporting neurodiverse employees

One of the biggest problems for employers is that employees often do not feel comfortable disclosing their neurodiverse condition in the workplace, or they may be undiagnosed. When employers fail to actively support neurodiverse workers, they could miss out on the benefits of thought diversity, increased employee productivity, and even struggle to hire the best talent.

Neurodiversity and the law

It is important for employers to understand that an employee’s neurodiversity could qualify as a disability under the Equality Act 2010. However, not all neurodivergent employees will consider themselves to have a disability. Under the law, employees have the right to identify as having a disability, or not to identify. But, the legal definition of ‘disability’ under the Equality Act 2010 means that neurodivergent workers are likely to meet the conditions. Government guidance states:

‘A disability can arise from a wide range of impairments which can be … developmental, such as autistic spectrum disorders (ASD), dyslexia and dyspraxia.’

If an employee identifies as having a disability, they are provided with certain rights and protections under the law. Employers must make reasonable adjustments to allow them to perform their best work and protect them from discrimination, harassment and victimisation.

Similarly, workers are protected from ‘discrimination by association’. This means that if an employee is associated with a person who has a disability, such as a partner, child, or person they care for, they are also protected from discrimination, victimisation and harassment under the law.

Workers with a neurodivergent condition should also be wary of stating that they do not consider themselves disabled, as this could affect their legal protection.

Reasonable adjustments

Many reasonable adjustments may be required to help neurodivergent workers perform best. Typically this may include things related to focus, attentiveness and distraction. For example, allowing the worker to take shorter breaks throughout the day, providing them with a space free from distraction or enabling them to work from home and support with social interaction in the workplace. Support for neurodivergent workers should be assessed on a case by case basis.

World Autism Awareness Day Solicitors Rotherham

What to do if an employee refuses to return to the office after working from home? – Solicitors Rotherham

What to do if an employee refuses to return to the office after working from home? – Solicitors Rotherham

With guidance to work from home where possible now lifted, employers can plan a return to work for employees – many of whom will have been working from home for some time. Employees, however, may have different plans. Many people will still have concerns about the spread of Covid-19, particularly in workplaces where they will spend the majority of the day in the company of others. Employees may feel particularly unsafe if they are unvaccinated, medically vulnerable, or they are living with a person who is vulnerable. In this post, we look at whether employees can refuse to return to work, and the steps employers should take where this issue arises.

Does an employee have a legal right to refuse to return to work?

Yes, but only in certain circumstances. The Employment Rights Act 1996 gives employees a legal right to stay away from their workplace where they have a reasonable belief that it would put them at risk or serious and imminent danger.

Under sections 100(1)(d) and 44(1A)(a), employees have specific protections where they are disciplined, dismissed or treated less favourably after having raised reasonable health and safety concerns.

If an employee refuses to return to work, and they reasonably believe doing so would pose a serious risk to their health and safety, it would be unlawful to discipline the employee and dismissal could result in an unfair dismissal claim.

Will these protections extend to all employees?

In practice, it is likely that this protection will only extend to those who have a particular reason to hold these beliefs. Those who are clinically vulnerable or unvaccinated may be much more at risk than other employees. It is also likely that the protection would extend to those who live with someone who is clinically vulnerable or unvaccinated.

In addition, employees with mental health issues such as stress or anxiety may also believe that returning to work and concerns about risking exposure to the virus may also pose an imminent and serious risk to their health and safety.

Employers must also be mindful of employees who suffer from long-term physical or mental illness, have a disability or who are pregnant have additional protections under the law. Disciplinary action or dismissal against any such employee may amount to discrimination.

Can disciplinary action be taken against an employee refusing to return?

If an employee does not have a valid reason to refuse a return to work, they have a contractual obligation to return to their previous position in their usual place of work. You must provide the employee with reasonable notice.

As a result, an employer will be justified in taking disciplinary action should an employee refuse to do so. You must follow your disciplinary procedures for a failure to follow reasonable instructions or for absence from work. We would however recommend caution in disciplining employees who refuse to return to work, and potentially seeking legal advice on your specific circumstances.

• What to do if an employee refuses to return to the office after working from home? – BR Chamber

What to do if an employee refuses to return to the office after working from home? – Solicitors Rotherham

To pay or not to pay, that is the question… Solicitors Rotherham

To pay or not to pay, that is the question… Solicitors Rotherham

Sick pay policies have been hitting the headlines with many big-name employers withdrawing company sick pay benefits for staff who remain unvaccinated against Covid-19 and have to self-isolate.

The highly infectious Omicron variant has led to mass absences across the country, and while those in England who are vaccinated with at least two doses can avoid self-isolation, those who are unvaccinated are obliged to isolate.

Over recent weeks, retailers from Morrisons and Ocado to Next have said they will pay unvaccinated staff just statutory sick pay (SSP) of £96.35 a week rather than their full company sick pay benefits during their 10 days of isolation, unless there are mitigating circumstances for remaining unvaccinated, such as pregnancy.

Company sick pay may be paid in addition to SSP, or instead of it, and will be set by each individual company. It will often provide entitlement from the first day of sickness, whereas SSP becomes payable only after the fourth day of ‘incapacity’.  And while payment under SSP is restricted to a weekly maximum of £96.35, company sick pay policies may provide for an employee’s full wages.

The definition of ‘incapacity’ for SSP has been redrawn during the pandemic, to include those testing positive for Covid-19, or needing to self-isolate having been in close contact with someone who has tested positive.

Not all employers are taking the same approach: the latest retailer to declare its strategy is John Lewis. The employee-owned company has said it will not be treating unvaccinated workers differently to those who have had the jab and will continue to pay full company sick pay to all its staff when they are isolating due to exposure.  Others committed to paying all staff their standard company sick pay are supermarket chains Tesco, Sainsbury’s and Asda.

But the issue is complex and employers could find themselves challenged in a tribunal if they do not take care when introducing such changes to company sick pay policy, according to legal experts.

“It’s not a straightforward decision on whether to pay, or not to pay,” explained employment law expert  Miss Amy Cusworth  of Rotherham Solicitors, Oxley & Coward Solicitors LLP .  “A decisive factor will be whether company sick pay is discretionary or an entitlement set out in the employment contract.  If it’s an entitlement, then employers could be heading for claims for breach of contract, unfair deductions or constructive dismissal if they try to withhold payments without going through the appropriate process to agree amended terms of employment, unless self-isolating does not satisfy the requirements of their sick pay policy, for example if it relies on ‘incapacity’.”

They added: “If the payments are discretionary, paid as goodwill, then there is scope to introduce this sort of policy, but claims could still arise under the Equality Act 2010 unless employers can justify their actions as proportionate and legitimate. Many people may be choosing against the vaccination for religious or health reasons.”

The Act protects against direct and indirect discrimination based on protected characteristics, which include gender, age, disability, race, sexual orientation, personal relationship status, and religion or belief.  Employers may ask questions about health or disability only in certain circumstances, and the Act makes it unlawful to discriminate, or treat employees unfavourably because of pregnancy, after giving birth or during maternity leave.

Discrimination can be justified only where it can be demonstrated as a proportionate means of achieving a legitimate aim.

While a company looking to avoid paying company sick pay to unvaccinated workers may argue that it has a legitimate aim of avoiding or minimising future staff shortages by encouraging vaccine take-up, they could find staff claiming it amounts to a policy of mandatory workplace vaccination by stealth.

It would also require collection of sensitive personal data to identify whether staff had been vaccinated, and their reasons if they have not, giving rise to both privacy and data protection considerations.

Miss Cusworth added: “There could be further unintended consequences, such as staff resisting isolating or avoiding testing, if it could result in loss of earnings. It may also cause a divisive outcome if it creates a ‘them and us’ attitude among workers.

“It’s worth looking at all the options. While it wouldn’t work for most customer-facing retail workers, if working from home is a viable option, then an alternative may be to seek agreement from staff that they will do that if they need to self- isolate.”

She added: “Regular risk assessment, policy reviews, keeping contracts up to date and excellent communication with staff are more important than ever in this fast-changing working and legislative environment.”

Oxley & Coward Solicitors LLP – To Pay or not To Pay – Barnsley & Rotherham Chambers

Offsides, penalty shoot-outs and the taxman

Football’s offside rule has been controversial since it was introduced in 1863, with many arguing it remains unintelligible despite attempts at simplification, but the game’s latest rulebook clash may claim the crown when it comes to complexity.

The challenge surrounds the IR35 tax rules and the employment status of elite referees, which has seen a long-running dispute between HMRC and the body responsible for their contracts, the Professional Game Match Officials Ltd (PGMOL).

The legislation covering IR35 was designed to stop contractors working as ‘disguised employees’ and affects all contractors who do not meet HMRC’s definition of self-employment.

HMRC argues that the referees are employed under a contract of service, rather than being self-employed under a contract for services. The IR35 rules are important because whether someone is employed or self-employed will determine the tax and national insurance due by the individual and their client. In this instance there are huge sums involved, with a potential tax bill for the PGMOL of nearly £600,000 if they lose the case.

But assessing whether a contract involves employment or self-employment can be very hard to identify. The situation is made more complicated by the fact that the rules may apply differently to different contracts for the same contractor, so some may fall within the off-payroll working rules and some may not.

In the case of HMRC v Professional Game Match Officials Ltd [2021] the focus has been on the question of ‘mutuality of obligation’, the extent to which the referees and other officials involved could control the arrangements and whether there was an overarching contract of employment. The various officials formed what was known as the ‘National Group’, taking part in the second, third and fourth tiers of English football, FA Cup matches and within the Premier League.

PGMOL argued that no contractual relationship existed, and that match officiating was a hobby with referees managing any match officiating around other paid work and responding on a voluntary basis. HMRC disputed this, arguing that each individual engagement at a particular match was a contract of employment, and part of an overarching contract.

Now, the Court of Appeal has ruled that the First-tier Tribunal and Upper Tribunal both erred in law in their approach, when they decided that the referees and other match day officials were not employees of PGMOL and were performing under contracts for services.

“Although the Court of Appeal has decided that each tribunal took wrong turns in reaching their original decision, the case has been referred back to the tribunal specialists for the final decision, so it will be some time before we see a conclusive result in this case,” explained Miss Amy Cusworth, Partner at Oxley & Coward Solicitors LLP. “In the meantime, this ruling suggests we should review the weight given to criteria such as mutuality and occasionality as it is likely to undermine many current assumptions.”

That’s because many contractors have interpreted IR35 rules as meaning that where they provide their services on an occasional basis, and with no obligation to accept any particular assignment, there is no contract of employment.

Miss Amy Cusworth added: “The Court of Appeal ruling is likely to have implications far beyond the football pitch. Those who believe themselves to be self-employed, and those contracting with them, should review their arrangements and take advice, as it is evident from this long-running case that deciding on any given situation will be highly fact-dependant and every bit as complicated as the offside rule.”

Companies must be on track for Covid-safe workplace

Companies anticipating a return to the workplace in June, if the Government’s route map stays on track, should be planning how to protect workers and customers once the country is released from the current Covid-related restrictions.

Although the Government may decide that it is safe to relax regulations and recommendations around social distancing and large groups, the virus will still be circulating, and individuals could become infected or pass the virus on to others in the workplace.

Planning ahead and involving staff in the planning process is the best approach. By consulting and understanding worries around managing coronavirus, strategies can be developed, and workers reassured about how they will be kept safe, and how, in turn, they can keep others safe.

Said Amy Cusworth, Employment Expert in Rotherham with Oxley & Coward Solicitors LLP: “Asking staff if they have any concerns and taking action to address those, will help to create a positive environment for people to return to work and encourage everyone to play their part in helping to operate your business safely.”

Under the Health and Safety at Work Act 1974 employers must take steps to protect employees, whether in the workplace or acting offsite in a work capacity.  And all employers who have five or more in their workforce must have a written health and safety policy and make it available to employees.

Amy Cusworth, Employment Expert in Rotherham added: “These are statutory duties and apply whether we are in a pandemic or not. The responsibilities are even more important in the current situation, and it’s sensible to take a structured approach, even if you have fewer than five staff.”

The Health and Safety Executive (HSE), the government body in charge of enforcing responsibilities, has developed a range of information for employers on how to make the workplace safe and protect staff as they return to the workplace.

As well as ensuring staff are safe within their place of employment, staff must be protected also when travelling on business. Ignoring this aspect could expose an employer to a potential compensation claim if an employee were to contract Covid-19 while travelling for work purposes.

“There should be a documented risk assessment for each trip, and travel options should be chosen carefully to provide the safest possible environment, such as ensuring accommodation is being thoroughly cleaned, or responding to employee concerns about using public transport,” explained Miss Cusworth.

“Employees need to have safety at the forefront of their daily activities and be aware of how they can protect themselves, their fellow workers and customers. Robust health and safety policies, regularly reviewed and properly implemented, are essential, and provide a strong defence if anything unfortunate should happen, whether to deal with coronavirus or otherwise.”

Mental wellbeing should also be high on the agenda according to the Health and Safety Executive (HSE), which has developed a Talking toolkit as a resource for employers to handle work-related stress.  Further support is available via the Mental Health at Work charity.