Exclusive Q&A on Labour and Employment with Emmanuelle Ries

Have there been any recent regulatory changes or interesting developments?

Shared Parental Leave came into force in April 2015.  The first two weeks compulsory maternity leave is retained but eligible parents will be able to share some or all of the remaining maternity (or adoption) leave and pay, replacing additional paternity leave. The new regime is enlightened, but complex, with enhanced pay practices posing a dilemma for employers. If enhanced maternity leave pay is not applied by the organisation to fathers taking Shared Parental Leave, this could be potentially discriminatory.

With effect from 26 May any employer paying their employees less than the National Minimum Wage can now be fined up to £20,000 per worker. Previously, there was a maximum penalty of £20,000 for a breach irrespective of the number of workers affected.

Can you outline the current labour market conditions in your jurisdiction?

Unemployment is at a record low in England since the 2008 crisis. The job market is very fluid as recent legislation has made it easier to hire and fire.

Are you experiencing any particular trends in disputes and conflicts in the workplace?

Employees usually require two years’ service before they can raise an unfair dismissal claim. There are a number of exceptions to this qualifying service requirement. However, in most cases, provided there is no discriminatory reason underpinning the decision, it will very often be possible to dismiss an employee with less than two years' service without any significant procedure being followed. Having said that, employers should still, as far as possible, take into account the procedural recommendations in the ACAS Code of Disciplinary and Grievance Procedures.
Probationary periods are a useful way to monitor a new employee’s performance and, in most cases, an employer can terminate the employment relationship, relatively easily, on shorter notice (minimum one week) during or at the end of the probationary period. The contract should also provide for a right to extend the probationary period for a further period of time, such as three months, with a view to flagging up to the employee that all is not well.

Does the current regulatory system offer adequate protection against discrimination in the workplace?

The Equality Act 2010 provides that it is unlawful to discriminate against an employee on the basis of age, sex, race, disability, marriage and civil partnership, sexual orientation, gender reassignment, pregnancy and maternity, and religion or belief. It is also unlawful to offer different and less favourable pay and conditions where women and men are doing the equal work (i.e. like work or work rated as equivalent or work of equal value).

It is also unlawful to discriminate against someone on the basis that they work part‑time or on the basis that they have a fixed‑term contract.

There is no qualifying length of employment, such as with unfair dismissal, for an employee, or a job applicant, to be able to make a claim that they have been discriminated against.

Can you detail the basic law on the public interest disclosure legislation and how it is a rapidly changing area of law?

When workers bring information about a wrongdoing to the attention of their employers or a relevant organisation, they are protected in certain circumstances under the Public Interest Disclosure Act 1998. The law that protects whistle-blowers is for the public interest - so people can speak out if they find malpractice in an organisation.  If workers cannot go to their employer with the disclosure first they should contact a prescribed person or body.

If workers are dismissed because of whistleblowing their dismissal is automatically considered 'unfair' without the need for the 2 years continuous employment requirement as in ordinary unfair dismissal claims.  There is also no cap on the compensation that may be awarded.

Workers who 'blow the whistle' on wrongdoing in the workplace can claim unfair dismissal if they are dismissed or victimised for doing so. An employee's dismissal (or selection for redundancy) is automatically considered 'unfair' if it is wholly or mainly for making a protected disclosure. If a case goes to a tribunal and the tribunal thinks the disclosure was made in bad faith, it has the power to reduce compensation by up to 25%.

Are there any effective employee retention strategies an organisation can implement?

To create and maintain an attractive workplace involves developing a corporate mission and culture and corresponding value system but also insisting on a safe working environment and creating clear, logical and consistent operating policies and procedures.

It is also crucial to promote a culture of openness and shared information, where employees know where the company is going and what it will look like in the future. How is the company doing financially? Where does it stand in the marketplace?

Employees also need to know  how their specific jobs fit into the grand scheme of things and what they can do to help the organisation get to where it wants to go. It is important therefor to  operate a transparent culture where managers share information.

How can an organisation protect their business against departing employees?

An employer may seek to protect its confidential information both during employment and after the employment ends through restrictive covenants. Having such clauses set out in the contract from the outset may help to deter employees from joining competitors and may warn off potential new employers.

A restrictive covenant is typically clause in a contract which prohibits an employee from competing with his ex-employer for a certain period after the employee has left the business, or prevents the ex-employee from soliciting or dealing with customers of the business by using knowledge of those customers gained during his prior employment.

The starting point for any such post-termination restriction is that it is void on the grounds that it is a restraint of trade and contrary to public policy. However, if the organisation can convince a court that the covenant is:

• designed to protect his legitimate business interests; and
• that it extends no further than is reasonably necessary to protect those interests then it will be upheld and enforced.

A restrictive covenant clause may be enforced to protect a legitimate business interest – for example, client connections, confidential information or a stable workforce – and not simply to stifle or prevent competition.

What should be included in a well-drafted employment contract?

A well drafted employment contract provides the parties with certainty about their respective rights and obligations over the life of the contract, and after it has been terminated.  The contract should address the basic terms of employment (such as wages and benefits, bonus, hours, holidays), but also confidentiality, intellectual property protection, non-compete and non-solicitation provisions during and after the employment. Employers should pay attention to the length of notice of termination they wish to impose and consider garden leave provisions (giving the employer to request that the employee stays away from the office, from customers and from employees during the notice period) and pay in lieu of notice clauses.

Can you talk us through the identified issues with zero hour contracts?

Under a zero-hours contract an individual is given work on a casual basis whenever there is work available. There are no guaranteed hours and at times there may be no work for the individual at all. It is not difficult to see why zero-hours contracts are favoured by some businesses. The position was made worse for workers where the zero-hours contract included an exclusion clause preventing the individual from working elsewhere even when no work is offered to them during certain times.

Exclusivity clauses in zero-hours contracts are unenforceable with effect from 26 May (section 153 of the Small Business, Enterprise and Employment Act 2015). This means that it is no longer possible for a zero-hours contract to prevent the employee or worker from working for someone else.

Can you outline the effectiveness of methods providing an alternative to redundancy, and in a worst-case scenario what selection criteria should be applied to identify the employees who will be at risk?

Before embarking on a redundancy consultation process, it is worth considering alternative options to use or combine to reduce redundancies, or even prevent them altogether.

• Reducing or ending overtime, stopping recruiting and retrain staff, stopping using contractors/casual staff/agency workers.
• Offering flexible working - employees are more productive with a better work-life balance, so offering part-time working, job shares makes sense.
• Offering voluntary redundancy/early retirement.
• Temporarily lay off - this is where there is a temporary lack of work available.
• Temporarily placing employees on short-time working.
• Changing employment contracts and seeking to agree new terms and conditions (such as wages, hours and duties).

If the above options are not available, employers should consult affected employees regarding redundancy  selection criteria. The criteria must be consistently applied and be objective, fair and consistent. Basing any selection on skills or qualification will help to keep a balanced workforce appropriate to the organisation's future needs.

Examples of selection criteria are:

• attendance record
• disciplinary record
• skills or experience.
• standard of work performance.
• aptitude for work
• Formal qualifications.

What key trends do you expect to see over the coming year and in an ideal world what would you like to see implemented or changed?

2016 will see more reporting requirements put on larger organisations.

Employers who employ more than 250 employees are bracing themselves for an obligation to report on the gender pay gap within their organisation.

The Modern Slavery Act 2015, in force since October this year will require organisations with an annual turnover above £36 millions and which carry on a business or part of a business in the UK, to disclose what activity they are undertaking to eliminate slavery and trafficking from their supply chains and their own business for each financial year of the organisation.  

Emmanuelle Ries “heads the employment team and French Desk at international specialists . The majority of her practice is focused on assisting non-UK clients with employment issues in the UK, …. she has developed a particular specialism in handling discrimination cases” (Chambers Global 2012 directory) and is “principally concerned with advising foreign companies on the UK employment angles of cross-border transactions” (Chambers Global 2013 directory).

Emmanuelle can be contacted on +44 (0)20 7553 9938 or by email at er@millerrosenfalck.com