Employment Winter Newsletter 2022

2022 has seen Covid-19 finally retreating from centre stage. The UK has a new monarch for the first time in 70 years and has had three different prime ministers (in as many months!).  As this year draws to a close the country faces major economic challenge and uncertainty into 2023 and beyond.

Businesses are experiencing varying different labour requirements. Many sectors, including hospitality and health care, have been facing labour and skills shortages for some time. In contrast, some businesses are either making or considering restructuring or redundancies, and we expect these activities are likely to increase in light of the economic climate and the need to restructure as businesses have emerged from the pandemic.

Employers who have been facing difficulties due to the ongoing skills shortage have taken various steps to try to improve recruitment and retention, including pay increases, sign on and retention bonuses, and flexible/hybrid working. We discussed recruitment and retention issues in a webinar earlier this year.

Some employers have addressed recruitment challenges by employing staff under an overseas remote working arrangement. This type of arrangement can work well but it is important to address the tax, social security, employment law and immigration considerations which arise, and we discussed this as part of our Travelling.Seamlessly podcast series.

Following the pandemic, many employers offered more flexible working arrangements on a permanent basis. A number of businesses have been trialling a four-day week for their staff, as part of a six-month pilot (running in the UK and several other countries including the USA). We discussed this pilot and the pros and cons of the four-day week in this article.

We continue to carry out significant investigations work for our clients, whether advising on an internal investigation, conducting the investigation itself or instructing a third party to carry out the investigation. Where clients ask us to support on an investigation this will often involve highly sensitive matters concerning senior individuals or issues of material importance to the business, with many complex considerations which need to be balanced carefully. As well as workplace investigations we also support on regulatory investigations (e.g. HMRC, UKVI or FCA investigations). More information about our employment investigations work can be found on our website and you can watch our recent webinar on Whistleblowing and Investigations here.

Proper investigation of complaints is an important part of the S in the ESG, i.e. environmental, social and governance, framework. We have seen businesses publicly criticised by ESG investors for failing to investigate issues properly. More generally, ESG is an increasing focus for employers and is a key concern for investors. We have advised a number of clients on the role of employment law and HR policies and processes in ESG initiatives, and you can see a summary of the main considerations in our flier on ESG4HR.

The cost-of-living crisis has prompted some employers to consider how they can help employees, for example via pay increases, one-off payments, staff discounts or income streaming arrangements. The increase in energy costs has led some employees to want to spend more time in the office rather than working from home, and employers with flexible desking arrangements are in some cases needing to revisit these to make sure there is space for everyone who wants to come in.  

We have worked on a variety of international projects this year, including advising multi-national clients on international HR restructuring exercises, data diversity collection, bonus schemes and whistleblowing/speak up policies across multiple jurisdictions, working with a variety of overseas employment lawyers.

Also on the international front, we have been asked to advise on various employer of record arrangements, under which an overseas business contracts with a UK entity to supply UK staff. It is important for the overseas business to consider appropriate protections in terms of confidentiality, restrictive covenants and intellectual property. We discuss the relevant considerations in this article for People Management.

2022 also saw cases on a variety of topics including:

• Holiday entitlement and carry over
• Harassment and discrimination
• Fire and rehire
• Investigations and legal privilege
• Redundancy and consultation
• Restrictive covenants
• Regulatory references
• Ill health dismissal

Ongoing skills shortages mean that we are advising increasing numbers of employers on becoming licensed immigration sponsors for the first time. In addition, the government has opened several new immigration routes this year, including:

• global business mobility route, which allows employers to bring employees from overseas branches or group companies and, in some cases, service-providers, to work in the UK temporarily
  
  
• scale up worker visa for fast growing businesses that meet specific criteria
  
  
• high potential individual route, for recent graduates of specified overseas universities

 We have continued to work with new and existing clients to obtain visas for key senior or specialist roles which they have struggled to fill, including for short-term assignments and time sensitive senior hires.

Significant changes have also been made this year to right to work checks, which in some cases must now be carried out online. Employers can also now sign up with a certified ‘Identity Service Provider' to verify British or Irish passports (and Irish passport cards) electronically instead of checking original documents. Our briefing note contains the details of the new requirements.

Following over two years of travel disruption due to the pandemic, business travel has resumed, and following Brexit, different rules apply to different European countries. Our interactive map enables businesses to check the relevant local requirements across Europe and we discussed this as part of our Travelling.Seamlessly. podcast series, which you can find here.

Read more information on forthcoming changes.

• Senior Associates, Antony Weber and Matthew Davis, joined the team this year, along with Associates, Laetitia Ajimal and Naomi Pollock.
  
  
• Sophie MacPherson and Olivia Rhys Evans also joined the team as newly qualified Associates in September, having completed their training contracts with the firm.
  
  
• We have just released our autumn webinar series which covers key developments during 2022, which can be viewed here.
  
  
• We also produced webinars, podcasts and briefings this year on a variety of other topics including recruitment and retention, changing terms, remote overseas working, post-Brexit business travel and right to work checks. These can all be found on our website here.
  
  
• We are planning an extensive programme of updates for next year, including a mock investigation event – look out for the invitation in the new year.
  
  
• Our International Employment Law podcast series continues, and this year featured South Africa, India and Portugal. All our international podcasts are available here and you can also listen and download on Apple and Spotify.
  
  
• We also held a virtual international round table event this autumn on economic challenges faced by employers, which was attended by lawyers from around the world including from Germany, Spain, Canada, Denmark, Mexico and the United Arab Emirates.
  
  
• We wrote various articles for the HR and employment law press including these pieces on holiday for irregular workers, employer of record, workplace culture/speaking up and handling whistleblowing complaints.
  
  
• Our team was involved in a wide range of pro bono work this year including advising at employment law clinics and assisting charities including Refugees at Home, Wonder Foundation, the Chancery Lane Project, Justice & Care, and Charity: Water on employment matters.
  
  
• Members of the team also assisted with volunteering projects this year. We helped to sort and deliver surplus food for the Felix Project and (together with our Tax colleagues) we collected 35kg of rubbish from the Thames shore as part of the firm's environmental initiative.
  
  
• Finally, our team enjoyed an away day in Egham this summer, where the morning work sessions were followed by a highly competitive scavenger hunt and team quiz!

🎄 Season's greetings and best wishes for 2023 🎄