Every day, employers are told by media and advisors of a significant change in employment law that is imminent – although we’re not 100% certain what that change will look like.
I often ask myself, “Do we need to be aware of this to begin planning?” I am increasingly convinced that beginning the planning process, and engaging employees in it, now will pay off.
You might find that strange coming from an employment lawyer. For me, the fine details of the law are very important.
While trying to figure out how things might be implemented in the UK as a whole, I believe we can learn from our European neighbors. The level playing fields requirements that apply to the UK’s terms of exiting the EU means that any new UK rules which deviate too much from those in the EU will be unlikely.
As an example, the Westminster Government’s headline-grabbing promise of the right to disconnect (or to switch off as it is commonly referred to) can be cited.
The right to disconnect limits the freedom of employers to expect employees to work outside their contracted hours. This is to create a better balance between work and life in the post-covid age, when more people are working from home. It is intended to prevent unreasonable obligations and expectations from being placed on employees. This will allow them to take advantage of their free time.
France, Spain and Portugal are among the countries that have adopted this right in one form or another.
The UK will likely adopt a mix of approaches that we see in Ireland and Belgium. Here are some pointers based on that:
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In Ireland, this right is based upon a code. The code is not legally binding, but it is considered when evaluating claims against employers for unfair dismissal.
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The Belgian right is based upon legislation that requires employers to agree on contact hours with employees either through collective agreements, or directly.
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Depending on the jurisdiction, there may be a minimum number of employees that are covered by this provision (in Belgium it is 20).
By starting to think about how this might work now, and drawing from Irish practices (and their code) and Belgian models of dialogue and agreement, you will have a head-start when the details are available.
A second example would be the proposed legislation which would prohibit dismissal of women after six months’ maternity leave.
It’s a bit more difficult to think about this one. We all know that the UK system rarely prevents or reverses dismissals. Instead, employees are allowed to make claims when they feel their dismissal was unfair or discriminatory.
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The German approach may give us a hint as to what the new UK approach will look like. For example, dismissal following a pregnancy during a period of protection requires a higher standard than a ‘normal’ dismissal.
In the UK, dismissal decisions are fair if they fall within a reasonable range of responses and are not discriminatory.
The proposed change could mirror German laws in that it would require a higher standard of dismissal for pregnancy or after-pregnancy – such as an employer being insolvent, or the employee having committed gross misconduct or criminal acts.
It is important to keep track of the disciplinary process and to update records for those who are on leave or have just returned.
The Westminster Government confirmed that it would make unfair dismissal an everyday right . However, they pointed out changes to the use probation for new starters, which could soften the effect of the removal the qualifying period.
A look at the neighbours can also give us a hint as to what is to come.
In Ireland, for example, the probationary period should not exceed six-months, except in exceptional circumstances. If they are extended, it must be done in the best interests of the employee, and not more than 12 months.
For fixed-term contracts the probationary period should be proportional to the duration of the contract as well as the nature of work. No new probation should be required if the role is renewed. If the employee worked part-time during the probationary period before the cap was introduced, this should count towards the maximum.
This suggests that probation periods in the UK (and those of other countries with a more lenient dismissal regime) will likely be limited to six months. They may need to be even shorter for short-term fixed-term contracts, or they could be credited for the time spent on probation.
When the UK government eliminates the qualifying period, it will be crucial to use probation effectively to reduce the risk of unfair dismissal. A look at the other EU-derived rules for probation and the length of the probation is a great place to start when assessing the best way to treat new hires.
Employers can review their probation policies and procedures now and ensure that records are kept and reviewed.
Although many questions regarding change in the UK won’t be answered until legislation is presented formally, there are some clear paths that employers can follow to plan.
I would advise HR teams to start thinking about how to manage change, and to consider how to do it now. We can get ideas from our European neighbors on how to make this work.
