Having a robust recruitment policy is more important than ever before given the huge changes in employment law that are on their way.
That was a key piece of advice from Louise Lawrence, a partner at Winckworth Sherwood, who specialises in employment law.
Describing the new Employment Rights Bill, being brought in by the Labour government, Lawrence said it included the biggest changes to employment law in decades.
She told the audience at the Forecourt Trader Summit that the most radical change was so-called ‘Day One’ rights for employees.
Currently, employees must have two years’ service before their rights kick in so Day One rights are a massive change. However, Lawrence said there would be a statutory probation period during which a “lighter touch process” will be used.
“The statutory provision will probably be nine months, but we don’t have clarity on that yet. We also don’t know what the detail of the ‘light process’ would be that employees have to follow during the probation period,” she said.
Lawrence added that she expected there to be a lower cap for compensation for dismissals during this statutory period.
“I think having robust recruitment processes in place are key, to really check that you’ve got the right recruit. This means following up on references, checking employment history and checking gaps in CVs.
“To reduce the risk, you really want to ensure that the employee is the right fit. However, until we know what this ‘light touch’ is we don’t know the level of risk for the retailer.”
Labour was very critical of zero-hours contracts while in opposition and these are addressed in the new employment Bill but Lawrence explained that they were not being completely banned.
She said that employers will have to offer guaranteed hours to those workers on zero hours contracts, which reflect their regular work pattern over a reference period. And, unfortunately, we don’t yet know exactly what the reference period is going to be.
“It’s expected to be 12 weeks. The employer will make the offer to the worker, but the worker could reject the offer and want to stay on the zero hours contract they previously had to maintain flexibility. It will be for the worker to choose whether they want to accept that offer. And again, we don’t know the exact details. What does regular working pattern mean? Does it have to be a certain number of hours or a certain number of days over the reference period? And is it just based on an average of what the individual has worked over the 12 weeks?”
Although there is so much unknown around the changes what Lawrence does know is that they will result in a huge administrative burden on employers because they will have to keep making offers to employees every 12 weeks, or whatever the reference period is.
Lawrence then went on to another big change which means an employer cannot alter an employee’s contract without the employee’s consent. Any resultant case would automatically lead to an unfair dismissal verdict. There will be an exception if the employer has severe financial issues but the details are not known at this stage.
Meanwhile, a duty to prevent sexual harassment was introduced in October last year, and Lawrence says that is going to be strengthened.
“The new rules mean employers will have to take ALL reasonable steps to prevent sexual harassment. That’s a change from the current legislation, which just says, ‘take reasonable steps’. Obviously it’s a much higher threshold to take ALL reasonable steps, so it’s going to be much harder for employers to be able to comply.”
Lawrence said what was reasonable for a small employer would be different to what was reasonable for a larger employer, but there were a number of steps all employers can take to minimise the risk. She said undertaking an assessment to identify any risks in the business was crucial as was having training and effective policies in place.
In addition, the legislation will include third-party harassment, which would cover other parties such as customer and suppliers who come onto the forecourt and into the shop.
“Employers will be liable for harassment, unless they show that they have taken ALL reasonable steps to prevent the harassment. Again, that’s a very high threshold, not just to take reasonable steps but ALL reasonable steps,” she said.
Lawrence suggested notices in windows saying harassment would not be tolerated would be a start but ALL reasonable steps would also include having CCTV and taking special care of lone workers and night workers.
Lawrence also mentioned the right for an employee to make a request for flexible working and employers having to show they have acted reasonably in their response.
Finally, she mentioned sick pay entitlement, which currently kicks in on Day Four, being moved to a Day One right, with the low pay threshold for sick pay being scrapped as well.
Lawrence said there was a lot of change on the horizon but also a lot of ‘waiting and seeing’ over the next year or so, for the finer details to be revealed.
