Employment Law Update Bulletin April 2021

Foreword by Simon Standley

MD Standley Associates Executive Search

Thank you for taking the time out to read this bulletin.

In this edition, we thought it was apt to address the general mood we are starting to see as the UK and Europe tentatively emerge from the COVID-19 pandemic.

As specialist sales recruiters, although we have remained busy over the past year, we know this has not been the same for many. It is possibly only now we will start to see the pandemic’s real impact on businesses and organisations.

Sales Success

One thing that’s clear to me is that Sales leaders and Sales staff will play a huge part in the re-emergence of businesses over the coming months and years, and therefore will be vital to the success – or otherwise – of so many organisations.

However, care must be taken to ensure the right sales approach and business acquisition models are adopted.

What was once successful is not necessarily going to be the correct answer moving forward.

Likewise, it will be inevitable that sales professionals at all levels will need to adapt to succeed, and their leaders will also need to adjust, motivate, and inspire their teams in what, for some, will be very challenging markets.

Businesses may need to make some tough decisions ahead, and individuals must look hard at how they can adapt to the new normal.

Nothing will be exactly as it was again...

This is why we’re delighted to include an article on leadership competencies by Stewart Wright of Informed Assessment, who addresses head on the type of leadership (sales or otherwise) that is most likely to be needed post-pandemic.

Also we include a current UK employment law update by Rob Kerr of Shield HR, showing how legislation is adapting to changing face of work in these unprecedented times.

A huge thank you to both for allowing their articles to be included, and we look forward to continued co-operation with these valued long-term partners.

We hope you find these useful and interesting and do not hesitate to reach out to either of them should you need any help in their areas of expertise - I highly recommend them.

Summary

Although businesses very often face challenges at different moments in their timeline, I suspect the uniqueness of this moment and the rareness of the situation is that no matter what sector, market, or location a business or sales organisation is in the world, there is a very strong chance they will face many of the same questions and challenges.

The playing field that was there in 2020 has now been very firmly reset from 2021 onwards.

So, for me, there are some key questions:

Who will make the most of these new challenges and adapt accordingly?
What will the critical difference be between success and failure in an organisation?

My guess is sales and sales leadership will be very near the top of the list when answering how well each company came through this crisis.

My very best wishes

Simon Standley

To contact Simon drop him a line here or call 0845 519 6304

If you are recruiting either Sales leaders or sales professionals then please contact us in confidence at no obligation.

Shield HR, inconjunction with Standley Associates - Employment Law Update - UK

April 2021 Employment Law Update - A Brief Introduction

With the ongoing Covid 19 crisis the issue of vaccinations in the workplace is becoming a topic some employers are turning their minds to. We set out some thoughts on this matter below.

In addition, we report on two recent cases, including the Uber decision, and give some information on the coming IR35 changes and the Gender Pay Gap reporting extension.

If you need assistance with any such matters, or with employment law or employment tribunals then please do not hesitate to contact Rob Kerr at Shield HR.

Can Employers Insist Employees Have the Jab?

There has been a certain amount of press coverage given to this matter and it is reported that the well-known London company Pimlico Plumbers have stated they are going to require any new staff to have been vaccinated.

So, can employers require new starters or existing staff to have the vaccine?

This is not a straightforward matter. There are a host of legal issues and the employer’s ability to act will depend on the circumstances. In addition, this is a situation the courts have not had to deal with previously and so there is some uncertainty over how the courts will view such cases.

The matters that an employer may need to take into account may include whether the individual is a new starter or an existing employee, length of service, any contractual right in the contract of employment to require the individual to have the vaccine, the reasonableness of the request, the reason for refusal, the other precautions that could be taken, the nature of the job and work the individual performs, health and safety, and what the employer is seeking to achieve in requiring the vaccine to be taken.

For example if an individual applied for a job to work as a carer in a care home for the elderly and the vaccination was deemed to be an effective means of stopping the spread of the disease, and the only reason why the individual had not had the jab and was refusing to take the jab was due to unfounded conspiracy theories, then it may be lawful to refuse to employ the individual if the employer was requiring the vaccination as a means of protecting the residents of the care home. Similarly, if the individual in this scenario was an employee it may be lawful to terminate their employment subject to following a relevant process. But there is no guarantee this is the case.

Alternatively, if the individual had 2 years’ service, worked in administration in the office of a non-care sector business, and Covid 19 safety precautions could be taken such as working from home and the individual refused to take the vaccine because they were pregnant (the Government advice is pregnant females should not take the vaccine) then the dismissal is likely to breach employment law. The dismissal would probably be unfair and discriminatory.

Other matters that may create complications in dealing with such scenarios is that the roll out of the vaccine means those who are younger will not receive the opportunity to have the vaccine until after older age groups. In addition, certain religious groups, or people with certain beliefs, such a vegan, may not be willing to take the vaccine due to concerns about whether there is inclusion of certain animal products in the vaccine.

Furthermore, some racial groups may have certain levels of vaccine hesitancy. Also as stated above the Government advise that pregnant women should not have the vaccine. Added to this there may be some individuals who for disability related reasons cannot or do not want to take the vaccine. These various matters could in certain circumstances give rise to successful claims of discrimination on grounds of age, religion or belief, sex/pregnancy, or disability if individuals were refused employment or dismissed due to refusing to be vaccinated. It all depends on the circumstances.

There is no blanket legal position. Each case must be judged on its own merits.

So, care needs to be exercised in each case.

Dismissal for Refusing to Wear A Mask

A recently reported employment tribunal case will be of current interest.

In this case Mr Kubilius worked as a delivery driver for Kent Foods Ltd. The company handbook required him to comply with instructions from customers to wear PPE when at their sites. Mr Kubilius on visiting a customer site was requested to wear a face mask for Covid safety reasons and refused. He argued that he was in his cab and so was in his own area and that it was not a legal requirement.

The employer dismissed Mr Kubilius.

He brought a claim of unfair dismissal. The employment tribunal considered the dismissal was fair.

Again, care should be exercised in considering that this means employers will be able to dismiss fairly in other similar cases. Each case hinges on its own merits, but it is a case that provides some indication of the position at tribunal.

Uber and Self Employment

The Supreme Court gave judgment on the 19.2.21. on the issue of whether Uber drivers are workers rather than self-employed individuals in business in their own right. The Supreme Court determined they were workers and therefore entitled to certain rights such as rights under the Working Time Regulations and to the national minimum wage.

The Supreme Court stated that it was important to look at the reality of the relationship between the individual and company rather than what the documentation between the parties says.

It is not unusual for companies to issue documentation to individuals that categorises them as self-employed as a means of seeking to avoid NI costs and or to avoid granting certain employment rights to the individual. Such a practice is less likely to be effective now given the Supreme Court decision.

IR35

With effect from 6.4.21. the new IR35 tax regime will operate.

This will place new obligations on large and medium-sized companies in the UK where they are engaging staff through certain intermediaries such as personal service companies.

Large and medium-sized companies are defined as a company where 2 of the below criteria operate:

· £10.2M turn over per annum.

· 50 or more employees

· £5.1M gross assets on balance sheet

The government guidance on this may be helpful to those who fall into this category. See below link.

www.gov.uk/guidance/april-2020-changes-to-off-payroll-working-for-clients

Gender Pay Gap Reporting

For employers with a headcount of 250 on the “snapshot” date, there is an obligation to comply with the gender pay gap reporting requirements.

The Equality and Human Rights Commission (EHRC) has confirmed that gender pay gap enforcement action for the reporting year 2020-21 will be suspended until 5 October 2021, given the ongoing Covid 19 crisis. This was announced on 23.2.21.

The suspension of enforcement action effectively means that employers have an additional six months to meet their reporting obligations for 2020-21.

NMW Increases

From 1.4.21. the following NMW rates will apply.

£8.91 per hour for those 23 and above

£8.36 per hour for those 21 to 22

£6.56 per hour for those 18 to 20

£4.62 per hour for those 16 to 17

£4.30 per hour for apprentices under 19 and those apprentices over 19 in their first year.

Best Regards

Robert Kerr

Shield HR

024 76 693606

This article has been published with kind permission of Shield HR and is protected by copyright.

Disclaimer

Please note this document provides very basic and general information and should not be read as legal advice. This is particularly so as each case hinges on its own merits.

If you need advice on any such matters please contact Shield HR for your Employment law advice

What competencies will leaders need in a new Covid-19 world?

By Stewart Wright

This article was originally published by the BPS in Assessment and Development Matters, Vol 12 No 3 Autumn 2020, and is printed here with the kind permission of Stewart Wright.

Key message:

The Covid-19 crisis created a particular pattern of shock – a rolling, growing, unpredictably evolving and quickly accelerating shock with fundamental, deeply felt and frequently tragic impacts. The leadership agenda in response to this has, and will need to be equally fundamental, and, particularly for organisations in distress, undertaken with urgency.

Whether they be leaders within the public or private sector, they will need to at least re-visit and potentially create new visions and values for their organisations; to embed resilience and resourcefulness to sustain new shocks; to undertake more horizon-scanning particularly for low-frequency but high-impact existential risks, and to engage and inspire virtually working and remote teams behind the new vision for their organisations.

Introduction

Organisations have experienced a fundamental shock as a result of Covid-19, and many leaders are facing a daunting task to adjust to new realities. What other shocks might lie around the corner? How can they put their organisations back on a more resilient track to be better equipped for such an uncertain, anxious future?

The competencies?

Six competencies will be needed by leaders to help them navigate through the shocking landscape in which they and their organisations now find themselves:

1. Create new visions and values.

Leaders will need at least to re-visit their organisations’ vision and values, and the associated strategies, to see if these need re-aligning to reflect new realities, practicalities and priorities.

It may also be an opportunity for leaders to see if their own, their employees’, customers’ or their stakeholders’ values or outlooks have changed in light of recent events, and how a revised vision or values might better reflect and take account of these. For example, leaders could consider if their organisation’s values should be based upon stronger relationships, closer and more personal links with the communities in which they are based, and whose needs they serve in one way or another. Organisations seen by others to be engaged with their communities, willingly putting themselves out, sharing their resources and helping others in times of deep crisis are more likely to resonate with staff, suppliers, service users and customers as ones with whom they will wish to engage in the future.

These new visions and values may, though, require difficult and unpopular journeys for some stakeholders. This will challenge leaders to put these across not just clearly and simply, but also with tenacity and clarity of purpose.

2. Build sustainable resilience in people and systems.

Leaders will need to demonstrate a new type of sustainable resilience – the capacity to take long-term, fundamental, recurring and almost certainly evolving shocks and obstacles in their stride, as well as shorter-term shocks and setbacks.

This will be characterised by the ability to maintain productive behaviours, positive spirit, energy and purpose through ongoing and changing types of shock, continuously rebuilding, restoring and maintaining strength in themselves, people and systems.

To build sustainable resilience within their organisations, leaders need to explore what constitutes resilience both within people and within systems.

To build or re-build resilience in employees will require leaders to be fundamentally attuned to the anxieties, stress and shocks felt by them; and to address these needs sympathetically, empathetically and urgently.

Anxiety, stress and shock play out and show in different ways and to different levels in staff, so this will require adaptable approaches and adapted messages from the leader. Leaders will need to ensure that the wellbeing, welfare and health of employees are at the heart of the organisation’s values because, more than ever, these are now the pillars upon which the organisation draws its strength to handle future shocks.

To build or re-build resilience in systems and processes will require a logical, systematic and evaluative approach to see where and when fragility occurred or when systems failed or buckled, and ‘what-if’ questioning will be needed to explore potential or latent fragility in systems and processes as this and any future shocks emerge and evolve.

3. Embed resourcefulness.

Leaders will need to demonstrate, and to embed, an aptitude for looking at all types of resources and assets for ways that these can be better used, more effectively used, less wastefully used, or could be grown or developed for re-aligned purposes, to support the new vision.

They will need to show an appetite for seeing solutions and opportunities, and for encouraging and generating ideas and actions when shocks or setbacks might seek initially to confound or overwhelm the ability to do this.

Leaders can then start to look at all types of resources – office space, people, financial, online/virtual, fixed assets, materials and stocks, and so on – at their disposal and can start to ask difficult but necessary questions, calmly and objectively, but rigorously, to see how the value of these can be maximised.

The more fundamentally assets need re-allocating to meet new or drastically changed purposes, the more lateral thinking, creativity and innovation will be required.

4. Horizon-scan for existential risks.

Leaders will need to be adept at looking outwardly from their organisations and beyond their immediate environment for major shocks and risks, and particularly for rarer but high-impact risks. They will need to develop an eye for spotting flaws and problems ahead of others and for seeing these in unlikely places, and for making connections between possible risks and potential impacts on their organisations.

Leaders will need to develop their contacts or sources of information and to be alert to those sources of reliable and reputable information which might give early insights as to these emerging situations.

Leaders will need to make time in their organisations to test out these challenges before these take shape and estimating possible impacts. Disaster planning and risk assessment scenarios should more actively include planning for low-frequency, high impact. shocks.

5. Apply agile decision-making under pressure.

As new and fundamental challenges develop, and rapidly, leaders will need to make big decisions increasingly quickly, or more often, and with limited or evolving information. In such situations, traditional sources of data may be limited. Leaders will be needing to take these decisions based on combinations of necessity, insight and intuition, alongside estimations of perceived implications, perceived consequences and perceived opportunities.

6. Engage and inspire remote and virtual teams.

In the face of all of the challenges, leaders will need both to see – and to be able to articulate – a positive future, in which potential opportunities lie alongside problems, but for those with the courage to grasp these.

They will need to combine candour about the challenges and the problems ahead, alongside a passion for the opportunities ahead. This will need to be done in an environment where an ever-larger proportion of staff may well be continuing to work remotely, possibly well into the future or permanently so for some.

Leaders will need to build their understanding of the possible drawbacks of remote. and virtual working, and seek to minimise these, alongside drawing on the many advantages.

Office and physical environments perhaps provide better opportunities for more spontaneous creativity, for ‘water-cooler' ideas-swapping, for creating more loosely defined and organic teams and for generating informal bonds and productive working relationships than virtual environments might naturally do.

The role of the leader with ever-greater remote and virtually working teams becomes that of a super-systems engineer, providing the means of effective engagement for and between teams, unblocking and overcoming the practical and theoretical obstacles to virtual team working, setting the communication frameworks and principles, resolving misunderstandings, clarifying any misinterpretations and removing any suspicions of other teams’ roles or agendas, all of which may occur more frequently in teams who share no physical space and may have extremely rare or limited face-to-face interaction with others.

Leaders will need to make remote and virtual team members in particular feel completely at ease with working with each other, and with other teams. Teams should be encouraged to understand their own strengths and capabilities, and their blind spots, and how their strengths, weaknesses and blind spots might play out within their own virtual team, and when teams are themselves remotely based and could well be working with other remotely based teams.

Teams should be encouraged to give and to share feedback with their members, and to other teams, but to do so in a positive, open and non-confrontational way, based on shared trust, a collaborative outlook and a desire to do things better for the wider organisation. Particular care needs to be shown to avoid misunderstanding and misinterpretation of agenda and motives.

Leaders will need to break down mistrust, siloes and virtual walls that might hamper remote and virtual teams’ efforts, while building environments of resilience and resourceful spirits within these teams.

They will need to make team members feel clear about their roles within remote and virtual teams; to help them to see the relationship between their team’s work and that of the wider organisation, and to be recognised for their contribution to this.

And perhaps above all, leaders need to create an organisation for all of their employees in which they can thrive once more and see their careers grow – one which has a mission and values around which, perhaps, they can now more closely relate; one which has risen above the shocks; one which is alert to future shocks but is resourceful, has spirit, purpose and resilience, and is ready for the future.

Summary

In response to the shock of Covid-19, leaders of organisations in both the public and private sector can develop and apply these six competencies: create new visions and values; build sustainable resilience in people and systems; embed resourcefulness; horizon-scan for existential risks; apply agile decision-making under pressure; and engage and inspire remote and virtual teams.

These are, in the author’s opinion, likely to become an ever more increasing aspect of an organisation’s structure. By developing these competencies, leaders will ready their organisations for an uncertain future with new focus, spirit and purpose.

The author

Stewart Wright is a founding Director of Informed Assessment Ltd and a co-author of the

Managing Assessment Centres e-book, published by Management Pocketbooks.

To reach Stewart or to work with informed assessment please contact him on or to work with Informed Assessment, please contact him on 0161 439 0902 or 07973 692 957.