Fire and Rehire, A Last Resort

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With ‘fire and rehire’ becoming an increasingly used practice for employers, we reflect on the risks of this approach and why it should be a last resort.

What Is ‘Fire and Rehire’?

There are many instances when you might need to change an employee’s contract of employment and there are a variety of ways of doing it.

However, when discussions break down over a proposed change, some employers have resorted to dismissing employees, and then offering continued employment on new terms. This practice is often referred to as ‘fire and rehire’.

In light of its increased use, ACAS have published new advice on making changes to employment contracts and in particular, the risks of adopting the practice of fire and rehire. The new guidance stresses this is an extreme approach to take.

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The Risks

You need to consider the risk of tribunal claims from employees who refuse the new terms. You also need to consider the risks and consequences of losing a substantial part of your staff if they refuse the new terms.

One recent Teachers’ Pension Scheme consultation that we did carried that very real risk for the employer. Several senior experienced teachers indicated they would refuse the new contracts and instead apply to work at other local schools.

Finally, do not underestimate the potential damage to staff morale as dismissing an re-engaging employees is almost certainly going to have a chilling effect on the employer/employee relationship.

For the above reasons the fire and rehire option should be treated as an last resort and we recommend you should try to keep discussions constructive, be open to exploring alternative options to reach a compromise and stay focused on trying to reach consensus.

For support with making changes to employee contracts, please contact Sue Meehan Boyes in our team on 07384468797.

Is Hybrid Working the New Normal?

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A study published by ACAS last year shows that over half of employers in Great Britain expect an increase in demand for flexible working from employees after the coronavirus pandemic.

Hybrid working is a type of flexible working where an employee splits their time between the workplace and working remotely. 

How Should Organisations Implement a Hybrid Working Approach?

There is no single way to implement hybrid working in the workplace, as no single organisation is identical to another. However, all organisations may wish to consider the following suggestions by CIPD when implementing a hybrid working strategy.

Our Recommendations for Employers

  • Agree an overall strategic position on hybrid working for the organisation. This should culminate in the development of a policy and supporting guidance to clarify the strategy.
  • Consider what approach to hybrid working is really required within your workplace and the specific organisational context. This might include several different forms of hybrid working even within one organisation, depending on role requirements.
  • Engage with people managers throughout the organisation. This helps employees become part of the conversation and provides an opportunity to ask questions and raise concerns.
  • Offer training and development to support successful hybrid working.
  • Develop a communication plan to share plans for future hybrid working with all employees, including information on how to request hybrid working.
  • Consider and adapt to issues arising from hybrid working such as technology, employee wellbeing, inclusion and facilities matters.
  • Support effective team building and cohesion within hybrid teams.

It is likely that employers will have to deal with an increasing number of flexible working requests from employees in the coming months. Having a clear policy, suitable training and support as well as clarity on the organisational approach will stand all companies and employers in good stead in 2022.

If you would like help with any matters or concerns relating to hybrid working please contact Helen Couchman in our team on 07799 901669.

Job Adverts – Why Does Wording Matter?

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Could certain words in your job adverts be preventing people from applying for your vacancy? We consider what to look out for when writing a job advert to ensure you’re attracting a wide and diverse range of applicants.

Considering Word Choice

The Phoenix Group, which owns Standard Life, is reported to have dropped the word ‘energetic’ from its job adverts because it was concerned that it may put off older people from applying. It is also apparently planning to replace the word ‘innovative’ and replace it with ‘contributing new ideas’ or ‘problem solving’.

Why Has It Made That Decision?

There are two reasons, both related to the pandemic. The first is that there are a substantial number of employers seeking to fill vacancies, the number of job vacancies is currently at a record high as employers are trying to keep up with increased demand as the economy re-opens.

The other reason is explained by Phoenix Group chief executive Andy Briggs, who is the Government’s ‘business champion’ for older workers. He warned in February 2021 that older workers had been disproportionately hit by the pandemic. It was felt that words such as ‘innovative’ may put off older applicants.

What About The Effect on the Gender of Applicants?

A survey conducted in 2019 on behalf of LinkedIn found that 52% of UK women would be put off applying for a job if the workplace was described as ‘aggressive’, compared to just 32% of men. 24% of women surveyed also said they would be put off by the term ‘born leader’ being used in a job advert, compared to just 17% of men.

Despite this, the survey, which polled 1,008 employees and more than 250 hiring managers in the UK, found that two in five (40%) employers never considered gender when writing job adverts, and 44% do not track or measure the gender of those registering interest in job postings.

What Do Your Job Adverts Say?

Reflect very carefully on the wording in your job adverts. You need to be deliberate with the words you are using in job adverts, interviews, social media and in the workplace itself if you wish to attract, build and retain a diverse team.

You could consider testing the job advert wording you propose to use on a range of current staff as a focus group. Also consider whether you are just using your job advert wording because you have used it previously – is that a good enough reason?  

It’s also worth getting help from outside your organisation. We have recently run some very well received training courses on recruitment which cover, amongst other things, unconscious bias. Please get in touch if you’d like to discuss that training with us, or how else we can assist you.  

If you would like to discuss any way that we can help you with any questions you have about recruitment, please contact Sarah Martin in our team on 07799 136091.

Workplace Investigations – What Can You Learn from the Downing Street Parties?

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Recent investigations into ‘gatherings’ at Downing Street are being undertaken by Sue Gray, who also investigated claims of a staff party at No. 10 on 18 December 2020, when London was subject to severe restrictions.

Her senior colleague, the Cabinet Secretary, Simon Case, stepped down from carrying out the investigations because it was possible that he had attended one of the parties himself. Sue Gray’s investigation now includes the ‘bring your own booze’ event on 20 May 2020 and a wine and cheese gathering five days earlier.

As workplace investigators, we are aware of the issues that can arise during a workplace investigation. We reflect on the key things to consider when conducting an investigation, and how to prepare for the process.

Expecting the Unexpected

In one of our recent workplace investigations, we were asked to find the source of a leak at a school about a member of staff being involved in a safeguarding incident. All was progressing smoothly until one member of staff named the school’s investigator as the source of the leak. The investigator had to step down, leaving us to run the investigation ourselves.

In an investigation you must be able to react to unexpected developments and make appropriate changes to ensure that the process remains fair.

New Matters Might Arise

Fresh matters commonly come to light during our investigations. It’s important for those who have commissioned the investigation to know this to establish whether they want any new matters to also be included, rather than just expanding the scope without consideration.

If the commissioning officer wants the investigation to be expanded to include new matters then an updated Terms of Reference will need to issued. If that happens then depending on the stage we have reached we may need to re-interview some people to whom we have already spoken. It’s another reminder that investigations often don’t proceed in a linear fashion.

How to Deal With Multiple Incidents

The other matter to consider is how the investigating officer should address multiple events. When we carry out investigations we know it is important to first consider each incident on its own merits, which means considering the evidence related to each event.

We then need to consider whether any findings and conclusions can then be drawn by considering the various events together. We ask questions such as:

  • Are there any repeated patterns of behaviour?
  • Are the incidents similar?
  • Are the explanations similar?

In a disciplinary investigation it may be that any single incident in isolation would not merit a recommendation that it should be dealt with at a disciplinary hearing, but cumulative incidents would merit being considered at a formal hearing. This is particularly the case if an employee has been spoken to informally about their behaviour after one incident and then does something similar on a later date. It’s often only when we take an overview that the interconnected nature of the events reveal themselves.

For more details about how we typically carry out workplace investigations you may find our FAQ document helpful. If you’re looking for support with an investigation, please contact Simon Martin in our team on 07384 813 076 for more information on how we can support you.

Diversity and Inclusion – A Key Priority for 2022

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Recent statistics released by the Department for Work and Pensions show that the employment rate for disabled people was 52.7% vs 81% for non-disabled people, there has been a lack of progress made on gender pay gaps, and there is potential introduction of mandatory ethnicity pay reporting.

So it’s completely understandable that businesses will want to focus on their diversity and inclusion practices this year.

Diversity starts at the recruitment stage – yet a recent poll by the Chartered Management Institute found that just under half of managers said their organisations were actively taking steps during the recruitment process to increase the proportion of employees from diverse ethnic groups. Is this enough?

It is useful to remember that diversity and inclusion practises are not simply a tick box exercise, and that encouraging diversity in the workplace has such a positive impact on any business, including greater success, improved performance, ability to share new ideas and motivated employees!

Businesses should not underestimate the advantages that prioritising inclusivity and equality bring.

For support with improving your diversity and inclusion practices, please contact Sue Meehan Boyes on 07384 468797.

How Do We Keep Employees Motivated in Such Challenging Times?

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The effects of COVID-19 on your workforce may have been far reaching with the consequences not yet fully known. Such effects have no doubt been compounded by Brexit – so much so, that in many cases it may be difficult to conclude whether it’s COVID or Brexit that is responsible.

One thing we can be sure of, is that there is a lot of uncertainty in the workplace right now.

While the Government’s furlough scheme helped to prevent redundancies across various industries, the ending of the scheme in September 2021 left some businesses still having to make difficult decisions. Lack of certainty can very quickly lead to unmotivated employees and for this reason, it is important to foster a positive working environment where staff don’t feel ignored or unseen.

One of the ways you can create this environment, is to ensure your workers feel involved in your decision making, and able to contribute to the success of your business. Recognition and appreciation of peoples’ achievements really does go a long way, as does extending trust to your employees so that they feel empowered.

The easiest way to do this is to talk to your employees one to one. Determine their short term goals, and come up with a plan together as to how they can achieve these.

Showing empathy and support is also key. Whether or not your employees are voicing their concerns, management should take an active role in showing understanding for the impact uncertainty may be having on individuals.

For further advice on how to support your employees at work, please contact Sarah Martin on 07799 136091.

Temporary Extension Made for Self-Certifying Sickness Absence

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In order to ease pressure on GPs during the roll-out of the COVID-19 booster programme there has been a temporary adjustment to self-certification rules.

Normally an employee can self-certify their sickness for up to seven consecutive days, at which point they would need a note from their GP for any additional sickness absence.

However, from 10 December 2021 to 26 January 2022 (inclusive), employees will not be required to provide medical evidence of their incapacity to work for the first 28 days of any period of sickness absence in order to quality for Statutory Sick Pay (SSP).

It is important to note that where there are concerns about the length or frequency of an employee’s sickness absence, employers should seek occupational health and/or expert medical opinions as they normally would. The process of obtaining expert medical advice on an employee’s health does not have to be delayed merely due to the Regulations.

Likewise, if there are any concerns about whether an employee is genuinely unwell during a period of sickness absence, these can be investigated in the normal way whenever is appropriate.

For support with sickness absence concerns, please contact Helen Couchman on 07799 901669.

Rise in Redundancies – Ensure Your Processes Are Fair

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Whilst the Government’s furlough scheme may have staved off redundancies for the short term, it is highly likely that we will begin to see another rise in redundancies across various industries as we head into the New Year.

Unlike an American CEO who recently decided to make 900 people redundant over a Zoom call, employers in England and Wales must follow a fair redundancy process for individuals who have worked there for at least two years by the time their job ends.

There will need to be at least one individual meeting with the employee before making a final redundancy decision and it’s key that you discuss the reasons behind that proposal and why the employee’s role is being considered for redundancy. You must also make the employee aware of any suitable alternative jobs that might be available, and actively engage with them to see whether a redundancy dismissal can be avoided.

If you have your own internal redundancy process, this should be followed. If you don’t have your own process in place, it might be best to get some support to guide you through the process. If the redundancy could be seen as ‘unfair’, you may be putting your business at risk of unfair dismissal claims.

For guidance and support with fair redundancy processes, please contact Simon Martin on 07384 813076.

COVID-19 Vaccinations Mandatory for All Frontline Health and Social Care Workers From 1 April 2022

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From 11 November 2021, care home staff working in a Care Quality Commission registered care home would be required to be vaccinated against COVID-19.

Catch up our previous article for more information on who this includes.

On 9 September 2021, the Department of Health and Social Care (DHSC) published a consultation on whether this compulsory vaccination requirement should extend to other health and care settings, and whether it should also include mandatory flu vaccinations.

What Was The Result?

The DHSC has now published its response to the consultation and confirmed that individuals carrying out CQC-regulated activities in the health and social care sector whose roles involve direct face-to-face contact with patients and service users must be fully vaccinated against COVID-19. This will include front-line workers such as receptionists, ward clerks, porters and cleaners, and will apply whether the regulated activity is delivered through agency workers, volunteers, trainees or contracted parties.

For individuals who are exempt, they must show evidence of their medical exemption before they can deliver care. Employers should be reminded that only those with a medical exemption will be able to perform regulated activities without being fully vaccinated. Until 24 December 2021, such individuals may use the self-certification procedure, but after this date, they must apply for proof of their exemption.

The mandatory vaccination requirement will be implemented via amendment to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (SI 2014/2936) and will come into force on 1 April 2022. There will be a 12-week grace period to allow time for the employers and workers to meet the new requirements.

The DHSC has decided not to include flu vaccination as part of the mandatory requirements.

If you have any questions, or are concerned about the implications of the new legislation, please contact Caitlin Anniss on 07909 683938.

Hybrid Working – How Prepared Are You?

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A recent survey found that 65% of employees expect to work from home at least two days a week, while 31% believe that a return to five-day office working will not happen until 2022, if at all.

What Can Employers Do?

  • Consider how to better plan your ‘future workplace’.
  • Review the ways you can help and support remote workers.
  • Engage with your workforce to find out their views on working arrangements and plans for the future.

Hybrid working is a feature for our workplaces certainly for the foreseeable future. To discuss your plans and get advice, contact Sarah Martin in our team on 07799 136091 to find out how we can help you.