Welcome to the August edition of the AdviserPlus newsletter.
In this month’s newsletter we are reviewing recent updates in employment law, including the court’s rulings about whether businesses can use agency workers to cover strike action and an update on the Retained EU Bill.
We will also cover a recent case from Employment Tribunal, highlighting the importance of making sure employees understand when they are underperforming, the expectations of them and what will happen if their underperformance continues.
Finally, we will make note of some key dates for your diary for September, so you are able to plan any activities or recognise any notable events.
Retained EU Bill
The Retained EU Bill continues to work its way through the system and the consultation period for the bill closed on 7th July 2023. There was a clause that would have allowed all EU law to be removed at once, often referred to as the “sunset clause”, but this has now been let go. What we are likely to see now are smaller changes to our existing laws that have come from the EU, but there is nothing to say that these changes will not have a significant impact.
Currently, the UK has shared that they do intend to keep certain popular rights in place that were originally brought in by the EU – these are largely relating to family friendly rights, such as maternity leave and pay, holiday allowances and protections for different types of workers such as flexible, part-time, or fixed term contracts.
There are several different laws that are expected to be impacted by the Bill, but until it progresses further it is unclear exactly what will be revoked or amended once it moves through. You can find further information about the types of changes that we might see on the CIPD page here.
Agency Workers and Strikes
Over the past 12 months, we have seen a number of strikes from different areas of employment, including rail workers, postal workers, NHS workers and teachers as people start to feel the impact of the cost-of-living crisis. There has been ongoing conversation about the impact of the strikes, particularly those in critical roles such as doctors and paramedics, and this has likewise brought about discussion on how the effect of the strikes can be minimised.
In July 2022, the government began to consider allowing agency workers to be used to cover those who took time off to participate in strike action. This was challenged by several trade unions and has now been reviewed by the High Court.
The ruling has been in favour of the unions, and from 10th August 2023 organisations are now prohibited from using agency workers in lieu of striking employees. This means that organisations will now need to consider alternatives in the face of future industrial action, such as using already existing staff to cover gaps. The government does have the opportunity to appeal the ruling, but until this time the rules banning the use of agency workers in these situations will remain in place.
Recent Case Law: Performance Management
A recent Employment Tribunal case has again highlighted the importance of managing performance in a structured and clear manner, or risk losing an unfair dismissal case. In Piaszczynski vs Leakers Bakery, the court heard how Mr Piaszczynski was dismissed in December 2021 following issues with his skills as a baker. The performance concerns centred around the quality of the bread, with the company claiming that there had been customer complaints with the number of holes in the loaves.
Mr Piaszczynski raised that he had not been given a fair opportunity to improve, as the company had not been clear with him about the underperformance and had not provided additional training to support him. The company claimed they left written notes at Mr Piaszczynski’s workstation but failed to follow a structed process or put SMART objectives in place (Specific, Measurable, Achievable, Relevant and Time-Bound).
Mr Piaszczynski received a written warning in December 2020, followed by a verbal warning and then a final warning in December 2021. Concerns were also raised that these letters were left on Mr Piaszczynski’s workstation rather than being handed to him or sent via email, and that the content of the letters were in English when the company knew that he would struggle to read these.
In December 2021, Mr Piaszczynski was dismissed without any notice being provided, no right to representation being provided and no follow up evidence to justify the choice to dismiss. In their judgement (full report here), the tribunal explained the decision was based on the failure to clearly explain the underperformance and the failure to provide a fair opportunity to improve.
National Inclusion Week
This year, National Inclusion Week is running from 25th September to 1st October. This is an event that was founded by Inclusive Employers and the theme for this year is Take Action Make Impact.
Inclusive Employers provides several tools to support with celebrating inclusion during the week, including sessions that employers can book onto and toolkits to be used in the workplace. The toolkits will include points such as Daily Actions for each day of the week to encourage employers and employees to embrace the week and understand more about what the aim of the event is.
Whilst conversations about inclusion (or exclusion) can be difficult and uncomfortable, it is important that businesses take the time to reflect on what proactive steps they take to ensure inclusion in the workplace. Topics such as sexism, racism, and homophobia (to name but a few) can be brought up and businesses should be prepared to talk about these issues and focus on creating an environment to have professional conversations about them.
You can find more information on the week and the support that Inclusive Employers can offer here.
Dates for your diary
5th September – International Day of Charity
10th September – World Suicide Prevention Day
19th September – National Eye Health Week
21st September – UN International Day of Peace
24th September – Yom Kippur (Judaism)
25th September – National Inclusion Week
25th September – International Week of Happiness at Work
29th September – Macmillan Coffee Morning
Note: The above guidance was correct at the time of writing this article on 22/08/2023. This does not constitute legal advice and is for information purposes only.
If you have any questions regarding the content of this newsletter or would like more information to support your business with the changes, please get in touch.