1 In the News
Quit-tok: employers beware?
A new trend, "Quit-Tok", has emerged: employees are taking to the social media site TikTok to release covertly filmed resignation meetings and dismissals. This has led to unwanted publicity for some employers where the discussion has not been handled as well as it could have been. The question is, what can employers do to protect their business and their staff?
There are various steps employers can take to reduce the risk of HR meetings being recorded and posted online. All relevant policies should be clear that internal discussions, including grievances and disciplinary meetings, must be kept confidential and must not be recorded without consent. Where possible, employers should consider holding such meetings in person to reduce the risk of covert recording – where this is not possible, the employer could remind employees at the start of such meetings not to record them.
More importantly, employers should ensure that difficult meetings are conducted carefully and sensitively, with proper preparation. Managers and HR teams should have sufficient training in how to conduct such meetings and respond to difficult questions, as well as the need for empathy. Where necessary, advice should also be sought to ensure the correct legal procedure is followed to avoid challenge and/or potential damage to the employer's reputation.
Non-competes: new restrictions on their use?
On 23 April 2024, the US Federal Trade Commission (FTC) announced a new rule effectively banning non-competes in the US. The rule would apply to any oral or written agreement that seeks to prevent a worker from joining a competitor or setting up a rival business for a period after leaving. The change aims to boost innovation and drive up wages, and is intended apply to all workers across the US from around September 2024.
However, the new rule has already been challenged – the US Chamber of Commerce and other trade groups have filed a lawsuit arguing that the rule prevents employers from protecting their confidential information and their investment in the workforce. This challenge is likely to delay implementation. Even once implemented, the new rule would technically not prevent individual states from allowing non-compete clauses – it is possible (at least in theory) that a state could continue to enforce non-compete clauses but employers who use them then find themselves subject to enforcement action by the FTC.
The UK government announced a similar proposal last year, saying that it plans to limit the length of non-competes in worker contracts to three months. It will be interesting to see whether the US ban prompts the UK government to drive forward this proposal, which was announced in May 2023 but so far without any follow up. Despite the uncertainties, employers in the US and the UK are already thinking about other ways to protect their confidential information and workforce stability by focusing on notice periods, garden leave, non-solicit and non-poaching provisions, as well as introducing restrictions in incentive schemes. If you would like to discuss the US ban or the UK proposal in more detail, please speak to your usual Employment contact.
2 Immigration Radar
Sponsored visas
On 4 April 2024, a number of changes came into force in relation to sponsored work visas. The key change was that the minimum salary threshold for the Skilled Worker visa increased from £26,200 to £38,700. The minimum salary threshold for the Global Business Mobility: Senior or Specialist Worker also increased from £45,800 to £48,500. In order to sponsor a work visa, employers must pay at least the minimum salary threshold or the 'going rate' set by the Home Office for the particular role if this is higher. At the same time, UK Visas and Immigration updated the occupation codes which must be recorded on the sponsorship certificate for any sponsored visa. Sponsor employers will need to be particularly mindful where changes have affected occupation codes they have used in the past and ensure that they are using the correct code for new applications from 4 April 2024 onwards. Our briefing contains more detail on the changes.
Move to digital visas
The Government is slowly replacing physical visa documents, including biometric residence permits ("BRPs") with an online record of an individual's immigration status known as an "eVisa". These eVisas are already being issued to EU nationals applying for UK immigration status, as well as certain nationalities when they apply for their visas from within the UK and they do not have a BRP card. The Home Office has also started to email select individuals with BRPs inviting them to create a UKVI account to access their new eVisa. It is intended that the process will open to all BRP card holders in summer 2024, with physical immigration documents being phased out by 2025. Employers will need to update their right to work checking procedures to reflect the change – for individuals with an eVisa, the right to work check is conducted via an online portal rather than by inspecting physical documents.
Graduate visa route
The Graduate visa route currently allows foreign students to work in the UK for two years after successfully completing a UK bachelor's degree or higher. However, in December 2023, the Government announced a review of the route out of concerns that it was being abused. The Migration Advisory Committee (MAC) was commissioned to undertake a 'rapid review' of the Graduate visa route in March this year. The MAC has now published the results of its initial review, finding no evidence of significant abuse and recommending that the Graduate route be maintained in its current form. These conclusions will be welcomed by employers, as the Graduate route allows employers to recruit graduates in any role without having to sponsor their work visas. However, the Government has not yet responded to the MAC review, and it remains to be seen whether the Government will proceed with removing or restricting the route as part of its wider plans to reduce net migration. Employment Update will report developments.
3 Case Watch
Interviews and reasonable adjustments
The employee in this case, who had a stammer, applied for a promotion which had been advertised internally and externally. Due to the COVID-19 pandemic, interviews were conducted via video conferencing rather than in person. On his application form, the employee indicated that he would need extra time to answer questions because of his stammer. While the employee performed well at interview, he was not offered the role as he scored one point less than the successful candidate. He brought claims of failure to make reasonable adjustments and discrimination arising from his disability. He argued that he was disadvantaged because he gave shorter, lower scoring answers at interview in order to avoid his stammer.
The Employment Tribunal and the Employment Appeal Tribunal rejected his claims. While the employer knew the employee was disabled and required extra time to answer questions, it did not know that he would also restrict his answers as a result of his disability. The employee had not raised this before or during the interview. Nor was there any reason to suspect this might be the case – the employee had performed well in his existing role with the employer and had also performed well in the interview process (the successful candidate had performed only slightly better).
This case is a reminder that the duty to make reasonable adjustments applies equally to job applicants as it does to existing employees. However, it also shows that the duty is only triggered where the employer knows or ought to know that the applicant is disabled and that their disability puts them at a particular disadvantage. While the applicant in this case had requested additional time to answer questions, he had not suggested at any point that he might limit his answers to avoid his stammer, and the employer had no reason to suspect this might be the case. The employer was therefore unaware of the need for this particular adjustment.
Regardless of the outcome of the case, employers should always ask job applicants whether any adjustments are required for any aspect of the recruitment process. Where a candidate declares a disability or requests an adjustment, it is usually prudent to follow up to confirm exactly what is required and ensure that what is being offered is sufficient.
GLASSON V INSOLVENCY SERVICE
Disability and impact on misconduct
The employee in this case, who suffered from anxiety and depression, worked in a care home. She was suspected of being responsible for a string of strange incidents involving the damaging and defacing of property, including drawing facial hair on photos of the manager and deputy manager of the home. Following an investigation, a trustee recommended that she be subject to disciplinary proceedings because, among other things, she was the only employee on duty when all of the incidents occurred and she had given short and evasive answers in her investigation meeting. The employee was dismissed following a disciplinary hearing. She brought a claim of disability discrimination, arguing that her disability contributed to her dismissal as her short and evasive answers were due to her anxiety and depression.
The Employment Tribunal and Employment Appeal Tribunal (EAT) agreed that the employee's disability affected her demeanour in the investigation meeting. They also found that this influenced the decision to take the matter to a disciplinary hearing. This, according to the EAT, was capable of constituting disability discrimination. However, the EAT ruled that the decision to proceed to a disciplinary hearing was justified on the basis of the other evidence against the employee. The employer was therefore able to successfully defend the claim.
This case is a reminder that an employee's disability may be a contributing factor in any misconduct or in the employee's demeanour during a disciplinary process. Where this then leads to dismissal, there is a risk that the dismissal would constitute discrimination arising from disability and would need to be justified. Employers undertaking a disciplinary process in relation to an employee who is known to have a mental health condition should therefore consider the impact of the condition on the employee's misconduct as well as their demeanour during the process. To do this, it may be necessary to take medical advice. The employer should ensure that any disciplinary action or dismissal is necessary and appropriate, having taken into account the impact of the employee's disability.
BODIS V LINDFIELD CHRISTIAN CARE
New Law
Sexual harassment
From 26 October 2024, employers in the UK will come under a new positive duty to take reasonable steps to prevent workplace sexual harassment. This new duty will apply to all employers regardless of their size or sector. Failure to comply could expose the employer to an uplift in compensation in a successful claim or potential enforcement action by the Equality and Human Rights Commission (EHRC) even where there is no employee claim.
The EHRC is updating its statutory guidance to set out what employers should be doing to comply with the new duty. However, the EHRC has indicated that it plans to consult on its proposed changes in early summer, with the final guidance to be published in September 2024, only a month before the duty comes into force. In the meantime, we are working with a number of employers on steps to prepare for the new duty, including reviewing anti-harassment policies and training, implementing a standalone sexual harassment policy and also considering a wider culture audit to identify risk areas. For more information, please see our briefing on the new duty.
Compensation for discrimination
Compensation for successful discrimination and harassment claims is made up of two elements - the employee's financial loss and injury to the employee's feelings. The so-called "Vento bands" have been created to guide tribunals what to award for the injury to feelings element. On 6 April 2024, the Vento bands were increased in line with inflation, and the current bands are now as follows:
- Lower band: £1,200 to £11,700 (for a low-level,
one-off act of discrimination or harassment)
- Middle band: £11,700 to £35,200 (for something more
serious)
- Upper band: £35,200 to £58,700 (for the most serious acts, such as ongoing campaign of discrimination or harassment).
There is technically no cap that can be awarded for injury to feelings, and in exceptional cases, tribunals can award compensation which is higher than the upper band. There is also no limit on the compensation which van be awarded for financial loss in discrimination and harassment claims.
Fair allocation of tips
The Government has passed a new law which will require employers to ensure all tips and service charges are allocated fairly between workers. The new law was originally expected to come into force in May 2024, but the Government has announced that it will now come into force on 1 October 2024. At the same time, a statutory code of practice is expected to come into force, setting out what the fair allocation of tips looks like. Under the new law, employers whose workers regularly receive tips will be required to have a written policy on how tips are dealt with and to ensure tips are paid to workers in full, without deduction for administrative charges. Workers will also be able to request information about an employer's tipping record and bring claims for breach of the rules on allocating tips in an Employment Tribunal.
5 Consultations
Reform of fit notes
In April 2024, Prime Minister Rishi Sunak announced plans to tackle the UK's "sick note" culture by shifting responsibility for issuing sick notes (known as "fit notes") from GPs to specialist work and health professionals. The Department for Work and Pensions and the Department of Health and Social Care have now issued a joint call for evidence on fit note reform. The call for evidence aims to gather feedback from employers, individuals, carers and medical professionals on how the current fit note process could be improved to better support people with long-term health conditions to access work, stay in work and return to work sooner following absence. The call for evidence is open until 8 July 2024. The Government will use the information and views gathered from the call for evidence to shape its proposals for reform, which it plans to consult on later this year.
TUPE and European Works Councils
The Government has published a consultation seeking views on proposals to amend the Transfer of Undertakings (Protection of Employment) Regulations ("TUPE"). TUPE protects employees on the transfer of a business or part of a business, including business sales and outsourcing arrangements. There has been some uncertainty about whether TUPE also protects "workers" - ie those who work under a contract to perform services personally but who do not have all the protections of an employment relationship. The Government plans to clarify this by amending TUPE to reaffirm the "generally accepted principle" that TUPE covers employees only, not a wider category of workers. In addition, the Government proposes to amend TUPE to make it clear that employees can only transfer to a single new employer. Previous case law suggested that an employee could potentially transfer under TUPE to multiple employers in an outsourcing situation where their work is split among two or more service providers. The Government accepts that this is impractical, as it could result in a fulltime employment contract being split into multiple part-time contracts with different employers. Under the proposed change, an employee could only transfer to a single new employer under TUPE and the new employers taking over the services would be required to agree who is responsible for each employee's contract.
The Government is also proposing to abolish the UK legal framework for European Works Councils ("EWCs"). EWCs are created by European law and are consultative bodies which represent workforces in organisations with a pan-European workforce. Following Brexit, the UK Government amended the rules to prevent the creation of new EWCs in the UK but maintained the legal framework to allow existing EWCs to continue to operate. The Government now plans to repeal the UK legal framework for EWCs in the UK, including the current requirement to maintain an existing EWC. If this change is implemented, employers in the UK would not be required to establish or maintain an EWC in the UK. However, employers with operations across Europe may still be required to establish or maintain an EWC under the local laws of EU member states.
The consultation on TUPE and EWCs closes on 11 July 2024.
6 Watch this Space
Confidentiality and non-disclosure agreements
The Government has announced plans to introduce legislation that would make confidentiality provisions and non-disclosure agreements (NDAs) unenforceable if they prevent employees from reporting a crime. The legislation will make it clear that confidentiality clauses and NDAs cannot prevent employees from reporting information relating to criminal conduct to the police and other law enforcement bodies, lawyers or support services who have their own confidentiality obligations, such as counsellors, advocacy services and medical professionals. It is already common practice for confidentiality provisions in settlement agreements to make it clear that such disclosures are permitted and this practice may become more widespread under the new legislation. However, other parts of confidentiality clauses and NDAs would not be affected (e.g. provisions dealing with commercially sensitive information). There is no timeframe for the new legislation yet; the Government has said it would be introduced "as soon as Parliamentary time allows".
Fire and rehire
The UK Government has promised a statutory code of practice on dismissal and re-engagement (or "fire and rehire"), a tactic used to make changes to terms and conditions of employment when an employer is unable to reach agreement with employees. The statutory code of practice is currently making its way through parliament. The Government has confirmed that, subject to parliamentary approval, the new code of practice will be brought into force in July 2024. Once in force, Employment Tribunals will have the power to increase compensation by up to 25 percent where an employer unreasonably fails to follow it. Employment Update will report developments.
7 Community Engagement
- In recent weeks, our team has been involved in a variety of pro
bono work for organisations such as the Luminary Bakery, YMCA, the
Green Finance Institute and Code Your Future.
- In March 2024, several members of our team spent the day volunteering with food charity the Felix Project helping to sort surplus food that would otherwise go to waste so that it could be delivered to charities and schools.
8 Our work
Since the last Employment Update, our work has included:
- supporting a client with its investigation process in respect
of allegations of bullying behaviours by senior management
- conducting manager and staff training on professional conduct
and "speak up" for an asset manager client
- advising on the TUPE and other employment law implications of
an internal reorganisation for a tech client offering price
comparison services
- advising a US headquartered technology company on collective
redundancy consultation obligations
- advising on the employment aspects of a £1.2bn merger of
two global IT solutions and service providers
- assisting a US headquartered client with a number of UK visas for senior/strategic new hires for its growing UK office
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.