Employment Update - July 2022

Four day working week - the future?

On 6 June 2022, more than 3,300 UK workers at about 70 businesses began a trial of a four-day working week. The trial is thought to be the largest of its type in the world and is being organised by the campaigning group 4 Day Week Global which argues the four-day working week is the future of work.

The trial will run for six months and is based on a 100:80:100 model in which workers receive 100 percent of their pay for working 80 percent of their normal time, in exchange for a commitment to maintain 100 percent productivity. Those behind the trial argue that the four-day week will increase productivity and be better for workers' health, families, gender equality and the environment.

Employers considering trialling a four-day working week would need to give careful thought as to how it is implemented in practice. Despite the obvious attraction, a four-day working may not suit everyone – while it might fit well with office workers who work 9am to 5pm, it might be less feasible for those who work irregular hours or shift patterns, or those in industries where clients demand round the clock service. It might also be less attractive for some part-time workers with childcare arrangements, for example, who would prefer to work shorter hours across five days.

Careful thought would also need to be given to how to avoid counter-productive behaviours, such as workers skipping breaks or working excessive hours on the four days in order to ensure 100 percent productivity in 80 percent of the week. Communicating and documenting any trial would also be critical – how long will it last and how would productivity or "success" be measured? Employers will want to ensure there is a clear mechanism to row back from the four-day trial if it does not suit the business, in order to avoid a repeat of issues faced by some organisations with getting staff to return to the workplace following the pandemic.

Researchers will be monitoring the success of the official trial and many employers will be keeping a close eye on the outcome and how it might shape the future of the working week.

Covering employees on strike

The Government has announced plans to allow employers to engage temporary agency workers to cover the work of employees on strike. The announcement came in the midst of strikes by rail and London Underground workers in late June.

Currently, temporary work agencies are prohibited from supplying agency workers to perform the duties of any employee who is taking part in official industrial action, or the duties of any other worker who is covering an employee taking part in official industrial action. Industrial action is official if it is authorised or endorsed by a trade union. Supplying agency workers to cover industrial action is a criminal offence and any employer engaging agency workers through an agency could be liable for aiding and abetting the offence. However, the Government plans to make it easier for employers to deal with industrial action by allowing agencies to supply temporary workers to cover striking employees. Draft legislation has been laid before Parliament and, if approved, could come into force in the coming weeks.

In practice, many employers may still want to be cautious about engaging agency workers during a strike because of the likelihood of escalating the industrial dispute and also the need to ensure workers have the necessary skills and qualifications to perform the work, in order to comply with health and safety obligations.

The Government also plans to increase the cap on damages which can be claimed against a trade union for unlawful industrial action. Currently the cap varies with the union's size, with the maximum being £250,000 for trade unions with 100,000 or more members. This maximum would increase to £1 million under the Government's draft legislation. 

New high potential individual visa

On 30 May 2022, a new High Potential Individual visa route opened. This visa route is for recent graduates of top overseas universities who want to work or look for work in the UK following completion of their degree. Applications must have completed a bachelor's degree or above from a recognised leading university in the last five years. Employers do not need to sponsor the candidate under this route; the individual must make their own visa application. Successful applicants will be able to come to the UK for two years (with a bachelor's degree) or three years (with a PhD) and work in any role, but this route does not lead to settlement.

New scale up visa

The Government plans to open a new Scale-Up Visa route on 22 August 2022. This route is designed to make the process of sponsoring visas quicker and easier for employers who are registered sponsors and who are experiencing rapid growth. An employer will be eligible for the Scale-Up route if it can demonstrate an annual average revenue or employment growth rate of more than 20 percent over a three-year period, and that it had at least 10 employees at the start of the three-year period. Candidates for sponsorship would need to be earning at least £33,000 (or the going rate for the role if higher) and be able to demonstrate sufficient English language ability. Provided these criteria are met, the visa application process would be fast-tracked by the Home Office. This route would lead to settlement after five years, and applicants could bring dependent family-members. However, the individual would only need to be sponsored for the first six months, meaning that a sponsored employee would have more freedom to leave the employer and work elsewhere. Employers utilising this route may therefore wish to consider other retention mechanisms, such as bonuses, restrictive covenants or repayment of visa fees on leaving.

Work visa delays 

The Home Office is continuing to prioritise visa applications from Ukrainian nationals, which means that applications for all other visas made from outside the UK are taking longer than normal to process (including work visas, as well as study and family visas). Priority processing services abroad also remain suspended, and the Home Office has not indicated when normal service will resume. Employers must therefore continue to factor in visa delays for any new recruits or international transfers from abroad.

Harassment - is calling a man bald harassment?

An Employment Tribunal has recently found that referring to a man as "bald" can constitute harassment. 

The employee in this case was an electrician in a small family business. He had an altercation with a shift supervisor one day where the shift supervisor called him a "bald c***" and threatened him with violence. The employee brought a number of claims, including a claim that this amounted to harassment on the grounds of sex. He also argued that he had been dismissed for blowing the whistle about this and other incidents.

The Employment Tribunal found that the "bald" comment amounted to harassment on the grounds of sex. It was unwanted and was intended to violate the employee's dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for him. The Tribunal also found that baldness is much more prevalent in men than women, so the term "bald" is inherently related to sex. The Tribunal went on to say that the employee had made a whistleblowing "protected disclosure" when he reported the incident, as he reasonably believed he was reporting a threat to his safety and a breach of anti-discrimination law. However, the Tribunal ultimately found that this was not the reason for the employee's dismissal. 

Ill health dismissals - considering the alternatives

The employee in this case worked for the Department for Work and Pensions as an Administrative Officer in Middlesbrough. She was signed off with work related stress, anxiety and depression for an extended period. During her absence, she raised a grievance about the way her line managers had dealt with health issues (she had suffered from chronic migraines which amounted to a disability) and their failure to support her in relation to a complaint of bullying and harassment by a colleague (which had exacerbated her migraines). She said she could not return to work at the Middlesbrough office but could possibly return to another site. The employer therefore arranged a work trial at another location, but this was terminated after six weeks as it was deemed unsuccessful. The employee was eventually dismissed on capability grounds, after almost a year's absence.

The employee brought and won a claim that her dismissal constituted disability discrimination. The employer argued that the dismissal was justified because of the impact on public funds of continuing to employ her and also because of the effect her absence was having on other employees. However, the employer had not provided any evidence to support these arguments. The Tribunal also ruled that the employer had not properly considered less discriminatory alternatives to dismissal. Although there had been a work trial at another location, there had been no feedback on the work trial or any proper analysis of its success. There were also issues with IT and training, and the trial had been withdrawn without notice or consultation, without any right of review or appeal. Had the work trial been properly considered, this may have avoided the employee's dismissal. The dismissal therefore constituted discrimination arising from the employee's disability.  

Fit notes

Employees are required to provide a statement of fitness for work or "fit note" for any absence of more than seven calendar days in order to receive statutory sick pay. On 1 July 2022, new regulations came into force which expand the category of people who can certify and issue a statement of fitness for work or "fit note". Registered nurses, occupational therapists, pharmacists and physiotherapists can now certify and issue fit notes, in addition to GPs. The regulations are designed to make it easier for patients to see GPs for other purposes by spreading the work of producing fit notes across the healthcare profession.

Fit notes also no longer require a "wet ink" signature and can now be issued electronically, following changes made on 6 April 2022.  These changes make it easier for employees to obtain fit notes but may in some cases make it more difficult for employers to be satisfied of their authenticity.

Fire and rehire 

The practice of "fire and rehire" has come under the spotlight recently (see May 2022 Employment Update for details). The practice refers to an employer changing employees' terms of employment by dismissing them and offering to re-engage them on new contracts. The Government has committed to producing a new Statutory Code of Practice on fire and rehire, and has said that it would consult on a draft of the Code this summer. It is anticipated that Code would detail how businesses should consult on proposed changes to employment terms, and that courts and tribunals will be able to apply an uplift in compensation where an employer has unreasonably failed to follow the Code. Employment Update will report developments.

Future of work review

The Government has commissioned an independent review into the future of work as the UK seeks to "build back better" after the pandemic. The review, which is being led by Matt Warman MP, will consider how the Government could best shape the UK's labour market so it is fit for the future. It will be conducted in two stages – the first phase will produce a high-level assessment of the key strategic issues on the future of work and the second phase will then provide a more detailed assessment of selected areas of focus. Some of the key policy questions and challenges being considered as part of the review include:

• the importance of place and local labour markets in creating and facilitating access to good jobs;
• the role of automation and how quickly it is happening; and
• how we can build on the ‘good’ flexibility in our labour market and the gig economy, whilst ensuring sufficient protections are in place to prevent exploitative practices.

The review is being conducted over spring and summer 2022, with a report and recommendations to follow.

To support the review, the Business, Energy and Industrial Strategy Committee ran a call for evidence from 27 May until 8 July 2022 into the UK labour market, seeking submissions from the public on five areas: the impact of Brexit and the pandemic on the UK labour market; artificial intelligence and technology in the workplace; workers' rights and protections; employment status and modern working practices five years on from the Taylor Review; and the impact of an ageing population on the labour market. Employment Update will report developments.

Since the last Employment Update, our work has included:

• advising on the application of TUPE in the event of a second generation service provision change
  
  
• advising on legal considerations arising out of a client setting up an "Employer of Record" (EOR) operation
  
  
• advising on collective and individual TUPE and redundancy consultation processes arising on the outsourcing and restructure of investment management services
  
  
• advising on a disciplinary process involving allegations of gross misconduct against a senior executive
  
  
• advising employers on the impact of post termination restrictive covenants in the context of recruiting new hires
  
  
• advising a client in the financial services sector on its plans to take on staff in France and Germany
  
  
• advising a client in the pharmaceutical sector on changes to terms and conditions of employment
  
  
• assisting an asset management client to add a new linked entity to its immigration sponsorship licence and assisting with time-sensitive visa applications
  
  
• supporting a global business with a sensitive sexual harassment investigation
  
  
• advising a client on trade union negotiations and strategy