Employment update | Top three in 3 minutes | 28 November 2019

1. General Election | Keeping your staff in check

Against the backdrop of Brexit, the General Election on 12 December is one of the most uncertain and potentially divisive that we have seen. With the parties now releasing their manifestos and increasing media attention including live television debates, employers need to be alert to staff sharing personal convictions that may not accord with their colleagues. For example, discussions around the parties' position on Brexit may move onto the arguments that have been raised about immigration and this week has seen tensions around religious discrimination highlighted. If discussions create an "intimidating, hostile, degrading, humiliating or offensive environment", this could potentially be unlawful harassment on the grounds of nationality or national origins, for which the employer can find itself liable.

Action

Employers must remain alert to the potential for political 'banter' to turn into unacceptable and potentially discriminatory behaviour. If a problem is identified, employers should ensure that their employees are aware of the standards of conduct expected of them. Given the impact the General Election will have on Brexit, this is not just an issue for employing entities in the UK: global operations will need to ensure that appropriate behaviours are reflected throughout their overseas businesses. Employers should also remind staff to think carefully about any commentary posted on social media, particularly where colleagues, clients or suppliers are able to read what they say. A social media policy should deal with the appropriate use of networking sites, and where corporate social media accounts are being used, clear guidelines should be issued as to what can be posted and by whom. 

2. What might the election bring for employers?

It is by no means certain which party or parties will form the next government, but the published manifestos suggest that significant employment law reform could be on the cards. Looking at the promises made by the Conservatives, Labour and Liberal democrats it is clear that workplace changes will be afoot.

• Come 12 December, under a new Conservative government there would be immigration reforms along the lines of the Australian points-based system and input of funds to support businesses in upskilling workers as workplaces evolve and adapt to meet market needs. The Apprenticeship Levy has been plagued by concerns over its lack of uptake and more improvements are promised. While a number of the workplace reforms expressly mentioned in the Conservative manifesto are already in the pipeline, a new right to flexible working by default will be one many employers will want to watch closely.

• The Liberal Democrats similarly focus on providing funds to grow and support our skill base and also look to strengthen individual rights, particularly for those who are disadvantaged, with promises to introduce a new "dependent contractor" employment status with minimum employment rights, a higher minimum wage for those on zero-hour contracts at times of demand, and a right to request a fixed-hours contract after 12 months. Again, there is a promise of flexible working for all.
• In contrast, a new Labour government would bring significant changes for employers, with radical reform of the individual rights of workers (Labour is proposing a single category of worker with only those who are genuinely self-employed falling outside this bracket) and a strengthening of collective rights with sectoral collective bargaining on pay and working hours. The reforms include: giving workers a financial stake in the business; a 32-hour working week and an end to the 48-hour opt-out; and flexible working for all. These measures will require employers to rethink their business structure and operations on a number of levels. Many of the reforms would be brought in over a lengthy period of time – the manifesto suggests the 32-hour week would be introduced over a decade. Employers would also see a move towards greater accountability for employers with enforcement of employment rights by government agencies. A Workers' Protection Agency would ensure that all workers receive the rights and protections they are entitled to. It would have extensive powers to inspect workplaces and bring prosecutions and civil proceedings on behalf of workers.

Action

Employers must wait and see what 12 December brings. But there are no surprises to the central themes: supporting the evolving needs of the UK skills base; protecting disadvantaged workers, including those on zero-hours contracts; supporting parents; and diversity initiatives. Flexible working for all from day one is a consistent promise across the parties. Labour's reforms would be the most far-reaching for both individual and collective rights. No express mention is made of a number of changes already in the pipeline, such as changes to IR35 and the use of non-disclosure agreements. However, the absence of any mention in the manifestos does not necessarily mean that these proposals are dropped.

Given the significant repercussions on end-users, employers must ensure they are ready for new IR35 rules to be introduced in April 2020. Please contact your usual OC contact or our specialist Workforce Solutions team for advice on how the IR35 reforms will impact your current working practices and the steps that you need to take to prepare and protect your business from the consequent liabilities. We are holding seminars in both London (5 February 2020) and Bristol (12 February 2020) focusing on the implications of these changes for employers and crucial actions to take. If you would like to receive an invitation to this event, please let us or your usual OC Contact know. 

3. Digital transformation: The impact of digital transformation on HR | Trends and themes across Europe

Digital transformation is being felt in the HR function in a number of ways. Effective management of the impact of technology on the workforce is critical to driving the success of these initiatives; while the HR function itself can be supported and augmented by software and tech tools. Digital transformation often generates a need for new policies as workplace practices evolve. More generally, widespread disruption of a sector can throw up issues that have a relevance beyond private employer/employee relationship, generating issues for government and society to consider. These themes were the focus of a panel discussion at Osborne Clarke’s recent European employment event, which brought together colleagues and clients from across our International Employment/HR practice. See our key highlights from the discussion.

Action

Digital transformation is high on business agendas and raises a number of practical day to day issues for HR. Do you have diverse recruitment and working practices which will engage and nurture the right skills base and talent? Do you use digital tools in your HR processes? Are these free from bias? Where digital transformation is being used to support new working practices, are you still protecting your employees' wellbeing? Some European countries have already introduced a right to disconnect and as the law develops to catch up with digital transformation in the workplace, UK employers should prepare for new laws and guidance. Indeed, should Labour win the general election on 12 December, it is proposing a new right of collective consultation with the workforce as new technologies are introduced. 

Did you miss last week's top three? Read the latest developments and please do contact us or your usual OC Contact for any further details.