Positive Discrimination – what employers need to know

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The recent case of Turner-Robson and others v Chief Constable of Thames Valley Police highlighted the dangers of unlawful positive discrimination in the workplace.

Diversity and inclusion are critical for thriving workplaces, benefiting employees and employers alike. A diverse workforce fosters innovation, broadens perspectives, and enhances decision-making. However, achieving this diversity remains a challenge in many sectors. The Equality Act 2010, includes provisions for ‘positive action’ to help address these imbalances.

Positive Action versus Positive Discrimination

Positive action is distinct from positive discrimination, which remains unlawful in England and Wales. While positive action aims to level the playing field by addressing barriers faced by underrepresented groups, positive discrimination would for example involve favouring a less qualified candidate solely because they belong to a protected group. Positive action ensures fairness by giving all candidates an equal opportunity to succeed.

What does the law allow?

The Equality Act 2010 allows for proportionate positive action for groups of people who share a ‘protected characteristic’ to reduce disadvantage, meet different needs and increase participation.

Within the Act, there are two forms of positive action:

  1. General Positive Action (Section 158): This provision allows employers to implement measures to address disadvantages or low participation rates among certain groups. This can include offering training programmes or development initiatives, and running direct communication campaigns aimed at attracting or supporting these groups.
  2. Tie-break Positive Action (Section 159): When two candidates are equally qualified, this provision allows an employer to favour a candidate from a disadvantaged or underrepresented group if they believe that doing so will encourage diversity within their workforce. However, this must be proportionate and must not be automatic (i.e. there should not be a policy to do so). It can only be applied when the candidates are objectively assessed as being equally qualified for the role.

What do you need to consider before implementing Positive Action

Positive action should be proportionate, targeted action to alleviate a disadvantage. There are some key steps you should follow which will help you create a successful positive action programme:

  • Firstly, consider what evidence you have of the disadvantage, particular need, or low participation among some groups and then look at identifying the root cause of this
  • The next step is to identify what you are trying to achieve and the aims of any action
  • Once you understand your aims, consider what measures you can implement to achieve these
  • Regularly review progress against those measures to assess whether the programme is still proportionate
  • Finally, don’t forget to speak to your employees about the measures, employee input will not only help define any programme it will also help them to understand any new initiative

What pitfalls do you need to avoid when considering positive action

Remember that positive action must be proportionate, or it could result in a legal challenge.  To avoid this, employers should:

  • Have some evidence to back-up the assertion that they ‘reasonably think’ there is a disadvantage. The evidence does not need to be extensive but should be sufficient to support the decision to implement any programme. 
  • Use targets not quotas to meet recruitment needs. Quotas are mandatory and could lead to you making appointments or promotions based solely on a persons protected characteristic and not on merit. Instead, set targets which are more flexible and will allow you to continue to appoint the best candidate.

Examples of Positive Action

There are several things that you can do to increase the diversity in your workforce including recruitment, promotion and retention of existing staff:

  • Targeted advertising of vacancies to increase the participation from underrepresented groups in your workplace
  • Increasing the number of underrepresented groups in senior management by offering mentoring opportunities to employees from that group
  • Targeting work experience for underrepresented groups
  • Creating staff groups for employees who share protected characteristics
  • Appointing a candidate from an underrepresented group in a tie-break situation

What else can I do?

You can also take more general action to increase diversity in your workplace. Not all action you take will necessarily fall within positive action under the Act, if it does not have a negative impact on another group with a different protected characteristic. Examples of action you can take might include:

  • Targeting adverts in publications aimed at underrepresented groups whilst at the same time advertising the role more generally
  • Ensuring that your recruitment is inclusive and any job adverts that you create do not use outdated stereotypical language that may deter applicants from certain groups
  • Consider using ‘blind applications’ for recruitment avoiding the possibility of bias in the early stages of recruitment

Don’t forget that not all underrepresented groups share a protected characteristic, you may also wish to consider the socio-economic background of your workforce and whether there are measures that could also be taken to increase diversity in this area. You should still be mindful of the impact of any such programmes on people who share a protected characteristic.

For further information on this topic or to discuss how you can implement positive action in your workplace, please contact Lisa Reynolds in our team on 07771 316 123.

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Labour’s plans to make work pay: progress so far

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The ongoing debate around the proposed changes to UK employment laws, promised as part of Labour’s election campaign has left many employers in a state of uncertainty, preparing for potential shifts that could significantly impact their operations.

The Government’s proposals—while not yet law—signal an increasing emphasis on worker rights and greater regulation of employment practices. For employers, these changes could bring both opportunities and challenges, depending on how they manage the adjustments. Labour’s manifesto included a statement that legislation would be introduced in Parliament within 100 days, although it acknowledged that some of the proposals will take longer, such as the plan to introduce a single workers status and a review of parental leave. If the government sticks to its 100-day time limit, a draft Employment Bill will be presented to Parliament by 12 October 2024.  So with the clock ticking, what do we know so far?

Consultation

The Deputy Prime Minister, Angela Rayner MP and Business Secretary, Jonathan Reynolds MP have been meeting with senior business leaders of major employers including John Lewis, Octopus, BT, McDonald’s and Sainsbury’s, as part of the government’s intention to consult on its  plans. It has been reported that the atmosphere during these discussions has been constructive and friendly, with the emphasis on Ms Rayner and Mr Reynolds explaining what they have planned, and listening to the concerns of employers.  For many it is still the detail of what those reforms will look like that remains a concern. 


Protection from unfair dismissal ‘day one’ right

On 19 September 2024, it was reported by the Financial Times that, in connection with Labour’s pledge to provide protection from unfair dismissal as a “day one” right, employers will be able to put new employees on probation for up to six months. But it seems even the government are in disagreement over how far reforms should go, with earlier reports referring to a divergence of view between the Deputy Prime Minister, who wished to see a brief probationary period (at most) and the Business Secretary, who favoured a longer period of up to nine months. Most recent reports are that employers will be able to use six month probationary periods.

In proposing day one unfair dismissal rights, the Government previously stated that it would be possible for employers to fairly dismiss new hires during a probationary period “with fair and transparent rules and processes”. There is currently no detail on what these rules and processes will be or how they will be expected to operate.

Predictable working pattern

As part of its pledge to end ‘one sided flexibility’, the Workers (Predictable Terms and Conditions) Act 2023 (W(PTC)A), which was expected to come into force in September, sought to address this issue by providing a statutory right for workers and agency workers to request a predictable working pattern. However, the Department for Business and Trade (DBT) confirmed that the W(PTC)A has been dropped and will no longer come into force. Instead, the government has said it will introduce a new right to a contract that reflects the number of hours regularly worked as part of their agenda to ensure workplace rights are fit for a modern economy, empower working people and deliver economic growth.  The details of this are yet to be confirmed.

Changes to the remit of the Low Pay Commission (LPC)

Previously, when setting national minimum wage (NMW) rates, the LPC would take into account the impact on business, competitiveness, the labour market and the wider economy. On 30 July, the government changed this to also take into account the cost of living and expected inflation up to March 2026. The LPC was also tasked with reducing the difference between the National Living Wage and the NMW for the 18 to 20 age band, with the plan to eventually remove the 18-20 band altogether. These are the first steps on the way to deliver the government’s promise of a “genuine living wage for working people” and eventually, a single rate of pay without age bands.

Draft Equality (Race and Disability) Bill

This Bill, which was announced in the King’s Speech, will introduce mandatory ethnicity pay reporting for employers with 250 or more employees and will make it easier for minorities and disabled people to make equal pay claims. This is likely to mirror existing equal pay and gender pay gap reporting provisions in the Equality Act 2010.  Detail of what will be included is yet to be seen as the Bill has yet to be laid before Parliament.

Preparing for the Future

There is much still much detail yet to be confirmed so while the future of these proposed UK employment changes remains uncertain, employers would do well to prepare for a more regulated and worker-centric environment. By adopting a proactive stance and staying informed, businesses can adapt to these potential shifts while still maintaining the flexibility they need to thrive in an ever-evolving economy.

For further information on this topic or any other HR matter, please contact Sue Meehan Boyes in our team on 07384 468 797.

Enhancing employee wellbeing: Practical steps for employers

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Every July, Samaritans run an awareness campaign. This year’s event was held on 24 July, so it is an important month for thinking about mental health. The Samaritans Foundation, established in the UK in 1953,  currently respond to a call for help every ten seconds.

Mental health issues have a significant impact on both individuals and organisations. According to a 2024 Parliamentary briefing, one in six adults in the UK experiences a ‘common mental disorder’ like depression or anxiety each week. We know from discussions with our clients the importance they place on supporting staff wellbeing. There is an increasing understanding of the importance of mental and physical health and the impact that all life’s challenges can have on employees’ overall wellbeing.

Our clients tell us that ensuring their staff feel valued, supported, and healthy is not just the ‘right thing’ to do, but also crucial for organisational performance and growth. However, many find it challenging to identify and implement practical and effective measures to support mental health in the workplace.

Building a supportive culture

Creating a genuinely supportive work environment is the cornerstone for employee wellbeing. Employers can build a supportive culture by encouraging open communication, recognising and appreciating employees, and actively working to create an inclusive environment. Regular check-ins and surveys can help gauge employee satisfaction and identify areas for improvement.

Formal recognition schemes are a great way to celebrate staff efforts, not forgetting the power of more informal ‘shout outs’ in team meetings or group chats for a “job well done”. Fostering an inclusive environment where diversity is celebrated will lead to all employees feeling valued and respected.

Promote work-life balance

Work-life balance is crucial for maintaining employee wellbeing. This can be challenging for employers, but open and constructive conversations with employees can lead to positive results for all parties. Employers can promote work-life balance by offering flexible working hours and remote working options, while still ensuring business objectives can be delivered. These can help employees reduce stress and improve job satisfaction. Additionally, they boost productivity and improve retention. Employers should encourage employees to disconnect from work during their time off, with managers leading by example by setting clear boundaries around working time and annual leave.

Mental health support

Employers can support mental health by offering access to confidential counselling and services through Employee Assistance Programmes, a cost-effective option providing immediate access to support. Mental health training for designated staff helps to identify mental health issues and signpost support. If possible, allowing employees to take days off specifically for mental health can reduce problems, and improve employees’ confidence that the organisation genuinely supports their mental health.

Physical health initiatives

Employers can offer a range of initiatives to support physical health, including subsidised gym memberships and wellness challenges. A healthy work environment, with ergonomic furniture, healthy snacks, and promoting regular breaks will have the additional benefit of helping to reduce many common causes of sickness absence, and some employers enhance this by offering on-site flu vaccinations or regular health check-ups.

Professional development and financial wellbeing

These are not areas that might typically be the first things you might consider when looking at supporting wellbeing, but providing opportunities for growth and development can enhance job satisfaction and a sense of belonging. Possible initiatives include training and development programmes, structured career pathways, and mentoring schemes.

Support for financial wellbeing can include regular benchmarked compensation reviews. Offering workshops or resources on financial planning, budgeting, and retirement planning could also be beneficial., and if your organisation’s resources allow, providing comprehensive benefits packages that include health insurance, retirement plans, and other perks.

By implementing these practical steps, employers can significantly enhance the wellbeing of their employees. A happy and healthy workforce is not just beneficial for employees but is also essential for business performance and growth, with benefits across the whole employee lifecycle – better recruitment outcomes, higher productivity, reduced absence rates, and increased retention rates. And who doesn’t want to work in a happier environment?

For specialist support on this topic or to discuss any other HR matter, please contact Andrew Miles in our team on 07468 698 975.

New duty to prevent sexual harassment in the workplace

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In today’s rapidly evolving work environment, creating a safe and respectful working environment is more crucial than ever.

Pending any changes following the general election, the Worker Protection (Amendment of Equality Act 2010) Act will come into effect on 26 October 2024, strengthening protections against sexual harassment for workers. In anticipation of this, the EHRC has launched a consultation to update its technical guidance on the new duty, with the consultation period ending on 6 August 2024. We examine the upcoming enhancements and suggest how employers can prepare for compliance in the months ahead.

Understanding the new duty

This new law will impose a duty for employers to take ‘reasonable steps’ to prevent sexual harassment. Tribunals will have the power to increase compensation by up to 25% if there is a successful sexual harassment claim and the employer has breached this duty. Employers are required to adopt a proactive approach, addressing potential issues before they arise rather than reacting to incidents after they occur. Compliance with this law is not just about avoiding legal repercussions; it’s about fostering a culture of respect and inclusion, which can enhance employee satisfaction and productivity.

However, not everyone believes the new duty has gone far enough. They point out that the requirement for employers to take ‘reasonable steps’ falls short of ‘all reasonable steps’ and the omission of an express duty to protect workers against harassment by third parties. The Chartered Institute for Personnel and Development (CIPD) has also voiced concerns regarding the efficacy of the new duty but acknowledges the importance of this legal change in building awareness and encouraging compliance.

Key steps

In preparation for the new duty, there are some key steps employers can take to ensure compliance.

  • Staff listening exercise: Conduct a feedback activity to capture common themes, experiences, and to help identify areas of focus.
  • Risk assessment: Where the organisation identifies areas of risk and plans how these will be mitigated – this will help inform the “reasonable steps” to be taken.
  • Build awareness: The first step is to increase awareness regarding what constitutes sexual harassment and educate their workforce. Few employees will appreciate that harassment can include unwanted conduct related to a protected characteristic, creating an intimidating, hostile, degrading, humiliating or offensive environment. Even fewer will be aware that sexual harassment specifically involves unwanted conduct of a sexual nature with that impact. Regular training sessions should be provided to all staff which should include how to raise a concern and how sexual harassment will be addressed.
  • Organisational and Cultural Change: Senior leaders must act as role models for inclusive values and behaviours. Their influence as ambassadors for the organisation both internally and externally is crucial in fostering a respectful culture of both physical and psychological safety.
  • Develop your Policy: While policies alone will never suffice to effect cultural change, it is useful to have a clear written framework defining what constitutes sexual harassment and making clear how sexual harassment will be addressed.
  • Upskill your managers: Specific training for managers on how to tackle sexual harassment should be provided, including how to support any team members who are impacted.
  • Identify and promote your reporting channels: Confidential and accessible routes to report concerns relating to sexual harassment should be widely advertised. The organisation should always ensure they are clear that sexual harassment is unacceptable, and any concerns will be treated seriously and with sensitivity.
  • Timely Investigation: Employers should investigate sexual harassment claims thoroughly and in a timely manner. We recommend investigations should be completed by someone appropriately trained, without direct connection to those involved. Depending on the circumstances, appointing an external independent investigator can be beneficial to ensure impartiality.  
  • Support: Providing support to those impacted is critical. This support can include counselling support, adjustments to work arrangements, or temporary leave if necessary.
  • Review your progress: Monitoring gender diversity, complaints, as well as seeking input on the wider experiences of your teams via engagement exercises can help to shine a light on the impact of any steps taken to prevent sexual harassment. You should regularly analyse these sources of information and take action on any learning.

The new duty to take reasonable steps to prevent sexual harassment in the workplace provides an opportunity for employers to reflect upon their organisational culture. Legislation alone will not create change; it will be up to individual employers to assess their starting point and take proactive steps to improve their current approach to the prevention of sexual harassment in the workplace.

If you would like any support relating to the new duty to prevent sexual harassment or in relation to an individual complaint, please contact Kathryn Chidzey-Jones in our team on 07881 092524.

What we have learned from the King’s Speech?

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The Government announced an Employment Rights Bill in the King’s Speech on 17 July, aiming to “ban exploitative practices and enhance employment rights”.

The Bill, reflecting Labour’s pre-election manifesto and their ‘New Deal for Working People’, will be introduced within the first 100 days of the new parliament. The government has described the Bill as “the biggest upgrade to workers’ rights in a generation”.

Headlines of the proposed Employment Rights Bill

  • Day-One Rights: Immediate rights to parental leave, sick pay, and protection from unfair dismissal (with provision for probationary periods).
  • Statutory Sick Pay (SSP): Removing the lower earnings limit and making SSP available to all workers from day one of their sickness absence.
  • Flexible Working: Making flexible working the default from day one for all workers, putting the onus on employers to accommodate flexible working “as far as is reasonable”.
  • Ban on “exploitative” Zero-Hour Contracts: Ensuring workers have contracts that match their regular hours with reasonable shift change notices, ending “one-sided flexibility.”
  • End Fire and Rehire: Reforming the law to provide effective remedies and replacing the previous statutory code with a strengthened version.
  • Increased Protection for New Mothers: Making it unlawful to dismiss a woman within six months of returning to work after having a baby, except in specific circumstances.
  • Fair Work Agency: Establishing a new body to monitor and enforce workplace rights.
  • Fair Pay Agreement: Introducing this in the adult social care sector, with potential expansion to other sectors.
  • School Support Staff Negotiating Body: To reinstate the SSSNB to agree national terms and conditions, career progression, and pay rates for school staff.
  • Trade Union Activity: Removing “unnecessary” restrictions, including repealing the Strikes (Minimum Service Levels) Act, to promote good faith negotiation.
  • Statutory Recognition: Simplifying the process to ensure workers can access unions at their workplaces.

Additional proposals

  • Changes to the living wage: While no detail is currently available, in the briefing notes to the King’s Speech, the government has reiterated its commitment to updating the living wage to accommodate for increases in the cost of living.  The government has indicated that this will include the removal of the current age bands.
  • Skills England Bill: This bill aims to simplify the skills system in England and Wales, transferring the work of the Institute for Apprenticeships and Technical Education to Skills England, and renaming the apprenticeship levy to the Growth and Skills Levy. The intention is to streamline and refocus the skills system, prioritising development in the workplace.
  • Equality (Race and Disability) Bill: This Bill intends to introduce mandatory ethnicity and disability pay gap reporting for employers with over 250 employees. This will echo the current gender pay reporting and equal pay legislation.

Conclusion

The Chartered Institute of Personnel and Development (CIPD) has welcomed the proposals from the new Government, emphasising the need for “thorough consultation with employers, and potentially compromise in places”.  We echo this sentiment, particularly the need to engage with employers to ensure any changes have a positive impact on workplace practices and employment opportunities. The proposals are currently light on detail and we are sure that, as we learn more over the coming months, we will be able to comment further on how employers might wish to navigate these potentially transformative changes.

For further information on this topic, please contact Kathryn Chidzey-Jones in our team on 07881 092524.

Forthcoming changes to Tips and Gratuities: What you need to know

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The UK hospitality and arts sectors are bracing for significant legislative changes regarding tips and gratuities, set to take effect from 1 October 2024.

Understanding the upcoming changes and preparing your organisation accordingly is paramount. This article outlines the key aspects of the new legislation, its impact on your workforce, and the steps you need to take now to ensure compliance.

Overview of the new law

The Employment (Allocation of Tips) Act 2023 requires employers to distribute all ‘qualifying’ tips, gratuities and discretionary service charges to their employees without any deductions. Qualifying tips can include those paid via credit/debit card or other electronic means. The new Act will also apply to cash tips, where the tips are deemed to be under the employer’s control – for example, where there is a policy to pool or collect tips. The legislation will also potentially capture tipping ‘apps’, which are becoming more commonplace, typically embedded in systems when you order and pay via a phone or device at the table. Care must be taken if the app/platform automatically deducts a proportion of the sum, as the legislation requires all qualifying tips to be allocated.

The goal is to ensure that employees receive the full benefit of the tips intended for them by customers, promoting fairness and transparency.

Key Changes

  1. Full distribution of tips: Employers are required to pass on 100% of tips to employees. Previously, it was common for businesses to retain a portion to cover administrative costs or distribute tips through a discretionary service charge.
  2. Fair and transparent allocation: The Act demands a fair allocation method. Employers must develop a written policy on how tips are distributed and make it accessible to all employees.
  3. Record-keeping requirements: Detailed records of tips received and how they are distributed must be maintained for at least three years. Employees have the right to request these records to ensure transparency.

Who will be impacted?

This legislation impacts all employers and many employees within the hospitality and arts sectors, including:

  • Restaurants and cafes: Front-of-house staff such as waiters, bartenders, and hosts.
  • Hotels: Housekeeping, concierge, and other customer-facing roles.
  • Arts venues: Employees in theatres, museums, galleries, and other cultural institutions where tipping is customary.
  • Catering and events: Staff involved

Preparing for implementation

Organisations need to take proactive steps to ensure they are ready for these changes by the October 2024 deadline. Here’s what you need to do:

  1. Develop a ‘Tips Policy’: Create a clear and comprehensive policy outlining how tips will be distributed. This policy should detail the allocation method, timelines, and any points of contact for employees with questions or concerns. Consider whether ‘fair allocation’ in your organisation extends to managers, head office, kitchen staff or other back-of-house staff too. A prudent employer may opt to consult staff when developing the policy, as this is likely to reduce subsequent challenges as to the fairness of any allocations made.
  2. Educate and train staff: Inform all employees about the new legislation and how it affects them. Training sessions can help ensure everyone understands the policy and their rights under the new law.
  3. Update payroll systems: Work with your finance and payroll departments to update systems to handle the distribution of tips and service charges in compliance with the new requirements.
  4. Enhance record-keeping practices: Implement robust record-keeping practices to track the receipt and distribution of tips. Ensure these records are readily accessible for employees and comply with the three-year retention requirement.
  5. Communicate with customers: Consider informing your customers about how tips and service charges are distributed to ensure transparency and manage their expectations.
  6. Review contracts and agreements: Examine any existing employment contracts or agreements to ensure they align with the new requirements. Make necessary amendments to reflect the changes in tip distribution.

The forthcoming changes to tips and gratuities legislation in the UK represent a significant shift towards greater fairness and transparency for employees in the hospitality and arts sectors. By taking the necessary steps now, to prepare, HR professionals can ensure their organisations are compliant and continue to foster a positive and equitable working environment. This can also be an opportunity to reinforce trust and satisfaction among your staff, which can ultimately lead to improved service and customer experience.

If you would like help to ensure you are ready for the October implementation deadline, or any other HR concerns, please contact Jo Bradbury in our NQHR team, on 07570 372118.

Navigating HR processes for employees with hidden disabilities

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Employers are well versed on their obligations to provide an inclusive and supportive workplace for disabled employees. But not all disabilities are visible and recent tribunal cases have highlighted the need for employers to take a more careful approach to employees with hidden disabilities.

Some conditions are not immediately visible but can significantly affect an individual’s job performance. Hidden disabilities include a wide array of conditions:

  • Mental health disorders: depression, anxiety, bipolar disorder
  • Chronic illnesses: diabetes, fibromyalgia
  • Neurological disorders: epilepsy, multiple sclerosis
  • Neurodiversity: ADHD (attention deficit hyperactivity disorder), ASD (autism spectrum disorder), dyslexia, dyspraxia or dyscalculia

These conditions can profoundly impact an individual’s work life, often requiring specific accommodations to enable them to perform effectively.

Protection for individuals with disabilities

The Equality Act 2010 provides robust protection and key provisions include:

  • Reasonable adjustments: Employers are required to make reasonable adjustments to the workplace or work processes to accommodate employees with disabilities. Adjustments might include modified equipment, flexible working hours, or changes to job duties
  • Prohibition of discrimination: The Act outlaws direct and indirect discrimination, discrimination arising from disability, harassment, and victimisation based on disability
  • Confidentiality and disclosure: While employees are not required

The effect in the workplace

Hidden disabilities can often appear as performance or conduct issues, especially when neither the employer, manager, nor the employee understands how an underlying condition is affecting the employee’s ability to perform their duties and interact with colleagues effectively.

Some examples might be:

  • Attendance and tardiness: An employee with a chronic illness, such as fibromyalgia or diabetes, might have unpredictable flare-ups that cause frequent absences or lateness. Mental health conditions like depression or anxiety can lead to difficulties in maintaining consistent attendance.
  • Communication or social interaction: Employees with autism spectrum disorder (ASD) or social anxiety may struggle with social interactions, potentially coming across as uncooperative or rude.  Dyslexia or other learning disabilities might result in misunderstandings or miscommunications.
  • Poor or unexplained behaviour: Anxiety or panic disorders can result in sudden, unexplained departures from meetings or tasks, which might be seen as unprofessional.  Sensory processing disorders can lead to difficulties in environments with specific stimuli, such as bright lights or loud noises, which might be mistaken for failure to comply with a reasonable instruction.
  • Poor performance: Mental health conditions, such as depression, can cause fluctuations in an employee’s mood and energy levels, leading to inconsistent work quality. Attention deficit hyperactivity disorder (ADHD) can affect an employee’s ability to focus, follow detailed instructions, or manage time effectively.

Act sensitively

It is important to try and approach potential misconduct or performance issues in these circumstances in a supportive and sensitive manner. While employees are not required to disclose their disabilities, your workplace should be an inclusive environment where they feel safe to disclose a disability in the knowledge that they will be supported.

Having a private, respectful conversation with the employee to understand any underlying issues that might be affecting their behaviour could resolve issues at an early stage. It’s an excellent opportunity to discuss if there is any support or adjustments that could be made to mitigate the impact on their performance.

Formal processes

You should consider alternatives to a formal process to avoid potential allegations of disability discrimination. However, we recognise that sometimes a formal process is unavoidable. In such circumstances, carefully explore whether there any barriers to the individual participating in the formal process and what adjustments could be made.

Reasonable adjustments could include: An employee with dyslexia may need more time to consider documents prior to any meeting or hearing.  An employee suffering with mental health issues such as depression may benefit from more breaks during a meeting.

You may also wish to consider:

  • The potential bias of managers involved in any formal processes and provide training to recognise and mitigate against this
  • Whether it is appropriate to obtain medical or occupational health advice before any decisions are made

What else could you be doing as an employer?

There are several critical areas where HR processes must adapt to better support employees with hidden disabilities:

  • Accessible job descriptions: Job adverts should focus on essential skills and avoid unnecessary physical requirements
  • Flexible application processes: Offering alternative application methods and additional time for tests can help candidates with hidden disabilities
  • Bias training: Training recruitment panels to recognise and mitigate unconscious bias is crucial to preventing discrimination

Workplace adjustments

Work closely with employees to implement necessary adjustments, for example:

  • Flexible Working Hours: Allowing adjustments to work schedules to better accommodate employees’ conditions
  • Remote Working Options: Offering the possibility to work from home can be beneficial
  • Assistive Technologies: Providing specialised software or equipment to aid in job performance

Ongoing support and development

Create a supportive environment by:

  • Regular check-ins: Continuous review of adjustments and their effectiveness.
  • Support services: Access to counselling and employee assistance programs.
  • Training and awareness: Educating all employees about hidden disabilities to foster an inclusive culture and reduce stigma.

Challenges and Best Practice

Balancing confidentiality with the need for information to make reasonable adjustments is challenging. The following can help:

  • Building trust: Encouraging open dialogue about disabilities while ensuring confidentiality can foster a supportive environment
  • Personalised adjustments: Recognizing that each individual’s needs are unique and should be addressed on a case-by-case basis

Continuous Improvement

Regularly reviewing and updating policies and practices to maintain an inclusive environment.

Creating an inclusive and supportive environment is key to understanding any issues that your employees may have. Always consider whether there may be an underlying issue for any changes to performance or behaviour and explore these sensitively with an employee. Alongside reviewing and updating policies and processes, educating all employees about hidden disabilities is an essential component for fostering an inclusive culture and reducing stigma in the workplace.

If you would like specialist advice on this topic or to discuss another HR matter, please contact Lisa Reynolds in our team on 07771 316 123.

Carers Week – 10-16 June 2024

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We look at how the increase in the number of carers is impacting employers and consider, alongside the statutory Carers Leave, what organisations can do to support those staff who have caring responsibilities.

The theme of the annual campaign for 2024, is ‘Putting carers on the map’.  It will highlight the increasing pressures on carers, to campaign for much-needed recognition and support and raising awareness about the challenges carers face in their finances, employment, health and wellbeing.

According to Carers UK, as many as 7.7 million people in the UK now juggle their unpaid caring responsibilities with paid employment). This translates as one in seven of your workforce caring for someone who is older, disabled or ill.

The number of people who combine work with care is likely to increase because the population and the workforce are ageing. Between 2010 and 2020, every year, 4.3 million people became unpaid carers, equating to 12,000 people a day.

In their State of Caring survey, the charity Carers UK found that 82% of carers said the impact of caring on their physical and mental health would be a challenge over the coming year, with nearly 60% adding that being valued as a carer would improve their wellbeing.

What are the impacts?

  • Retention: it is estimated 600 people a day give up work as a result of caring responsibilities. With the peak age for caring between 46 to 65, this means employers are losing staff at a stage in their careers where their skills and experience are most valuable.
  • Increased recruitment and training costs: With the loss of key staff, it is inevitable that employers will find they are spending more time and money on recruiting and training replacement staff.
  • Health and wellbeing: Research has shown that employees with significant caring responsibilities are twice as likely as those without to be in poor health. Inevitably this can lead to an impact on employee performance, productivity and absence levels.
  • Management time: With the impact on wellbeing there will be a knock-on impact for the amount of time line managers need to spend on managing internal processes, such as sickness and performance.

Other consequences include poor morale and engagement amongst staff.

What can you do as an employer?

Aside from delivering on your statutory obligations, other actions you can take to support carers in their workplaces, could include:

  • Policies and guidance: Ensure a carers policy is in place, incorporating the statutory legislation requirements as well as any enhancements the organisation wishes to offer. Ensure employees are aware of this policy and their entitlements and highlight any other relevant policies, such as flexible working and time off for dependants, to assist in providing timely guidance particularly for carers who may need immediate support.
  • Policies and guidance: Ensure a carers policy is in place, incorporating the statutory legislation requirements as well as any enhancements the organisation wishes to offer. Ensure employees are aware of this policy and their entitlements and highlight any other relevant policies, such as flexible working and time off for dependants, to assist in providing timely guidance particularly for carers who may need immediate support.
  • Campaigns to raise awareness and provide support: As well as celebrating national campaigns such as Carers Week, consider holding specific events to focus on caring responsibilities, provide guidance on internal support available and increase awareness in all staff.
  • Carers champion and employee forums: Employee forums can create a supportive culture for carers, to talk to colleagues in similar situations. They can also provide a feedback mechanism for employers when reviewing their employment practices on supporting carers at work. Similarly appointing a carer’s champion, usually a member of senior management, can serve to demonstrate commitment from the top.
  • Line management training: Line managers will be at the forefront of supporting carers within their teams, so they will need to have a complete understanding of the support offered by the organisation. It will also be essential that they are equipped with the skills in handling sensitive conversations with their staff, to discuss their caring responsibilities and agree measures of support that can be put in place.
  • Employee Assistance Programmes (EAP): If you have an EAP, your provider may well offer online learning resources that can provide support to carers on coping strategies to balance their work and care responsibilities.
  • Signposting to external support: Finding information about care and support services can be overwhelming as caring situations can vary enormously: some people become carers overnight, while others have caring responsibilities for some time before realising that they need help. This might include signposting to charities who can support such as Carers UK, Age UK and Contact a Family or Age UK, or external bodies and website such as Citizens Advice or the NHS.

Research illustrates that for many employees, working whilst also providing caring support in some form, will continue to be a necessity at various points throughout their working life. You can play a key role in mitigating the detrimental effects on employees of combining work and care, with the business benefits of increased employee resilience, productivity and performance.

The cost to employers of high turnover and underperformance is much greater than the cost of flexibility. In addition, those organisations that actively support their staff with caring responsibilities are likely to see an increase in employee morale and loyalty.

For specialist HR support with this or any other HR matter, please contact Sue Meehan Boyes in our team on 07384 468 797.

Men’s Health – play your part as an employer

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As we observe International Men’s Health Week we thought it would be a good time to consider how you can support this global initiative of increasing awareness of male health issues.

As an employer you are not going to be able to ‘fix’ employees physical or mental health, but you can think about ways to remove obstacles to them getting help and putting in place steps that will enable them to help themselves. 

Taking a lead from King Charles who shared that he had a problem with an enlarged prostate, the focus for this year’s initiative in the UK is to encourage men to share their own stories.

The power of sharing cannot be underestimated. On the day after King Charles’ announcement, there were over 16,000 visits to the National Health Service website page compared with 1,414 visits the previous day. Prostate Cancer UK almost doubled the number of users of its online risk checker.  This goes to show the difference that honest sharing can make.

What are the concerns?

One finding from surveys that may be of concern to employers is that men don’t go to see a doctor because they don’t want to take time off work.  Whilst retired men were as likely to have seen their GP as retired women, for those working full time 37% of men had seen their GP in a period of 3 months compared to 53% of women in the same period.  That is not to say that they don’t have health conditions, they just don’t tend to seek help about them. The big gap is in working age and a key factor is that men are concerned about taking time off work for mental health problems.

Effects in the workplace

There appears to be a particular reluctance for men to talk to HR about mental health issues. Research by the Men’s Health Forum shows that a third of working-age men would be embarrassed or ashamed to take time off work for mental health issue such as anxiety or depression compared to only 13% for a physical injury.  Over half of men with mental health problems were concerned that their employer would think worse of them. We have seen evidence consistent with those surveys in the investigations that we have carried out, when looking into issues that relate to men’s mental health.

There are some sobering facts about men’s health: evidence from Campaign Against Living Miserably (CALM) indicates men are three times more likely to die from suicide than women, with men making up 75% of total of suicides and this issue doesn’t just apply to younger men, the peak age group for death from suicide is actually 45-49.

What can you do as an employer?

Against a backdrop of such stark statistics, it can be hard for employers to assess their role in supporting men’s health.

Supporting annual initiatives such as International Men’s Health Week can be a great way to start the conversation.  Make it a celebration with workplace and social media campaigns and events, including supporting the ‘Wear Blue’ Day on Friday 14 June.  As the theme is about sharing, consider inviting a guest speaker to talk of their experiences and provide a platform for others to contribute.

Publicise the wellbeing services on offer – this is of course important for all staff, but given the evidence showing that men are less likely to reach out for help, this can be a critical area of support.  Ensure the materials and resources illustrate all of the services available, including any counselling services, are easy to find without the potential embarrassment of having to speak to a line manager or HR.

As always your line managers have a critical role to play – providing space for employees to talk, putting in place support measures. Navigating conversations on sensitive issues can be daunting for even the most seasoned manager.  In a busy work environment, it can also be difficult for line managers to spot the signs of an employee experiencing health challenges – even harder if staff are working remotely at times.  Training to support line managers on their role will be invaluable as will ensuring they have access to guidance and resources that can provide continual support.

There is a lot of research about the positive impact that exercise can have on physical and mental health. Look at ways to encourage staff by offering gym memberships, encouraging sports clubs at work, promoting a cycle to work scheme and so on.

There is also a growing body of research into the negative health (both physical and mental) impact of Ultra Processed Food so think about what food is on offer in the workplace and in your vending machines. Is it possible to move towards offering less processed food? See the book ‘Ultra Processed People’ by Dr Chris van Tulleken for a review of the evidence on that.

Create an open environment of discussion – employee engagement surveys and employee forums can be a great way to engage with staff, to encourage their contributions and suggestions and galvanise support for initiatives. 

Celebrating International Men’s Health Week is one way to showcase the importance of men’s health but it’s important that it forms part of the wider wellbeing offering in place for all employees, all year round.

For specialist HR support with any of these issues, please contact Simon Martin in our team on 07384 813 076.

Mental Health Awareness Week – how to prioritise mental health at work for employees

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Mental Health Awareness Week, which runs from 13-19 May, is an ideal time to think about mental health, tackle stigma, and find out how we can create a workplace that prevents mental health problems from developing and protects our employees’ mental well-being.

As businesses increasingly recognise the impact of mental health on productivity, engagement, and overall organisational success, HR professionals play a pivotal role in fostering a supportive and inclusive work environment. In this article, we consider the significance of Mental Health Awareness Week from an HR perspective and explore strategies to promote mental well-being in the workplace.

Understanding the Impact

Stress, anxiety, depression, and burnout are common challenges that employees may face, often exacerbated by work-related pressures, organisational culture, and personal circumstances. Recognising these challenges is the first step toward creating a workplace culture that prioritises mental health.

The CIPD’s Health & Wellbeing Survey 2022, showed the most common causes of stress at work. The top 4 factors were:

  • Workloads/volume of work
  • Non work factors – relationships/family
  • Management style
  • Non-work factors – personal illness/health issue

It states that half of organisations (51%) take a strategic approach to employee wellbeing, while 36% are ‘much more reactive than proactive’. As in previous years, mental health is the most common focus of wellbeing activity. Access to counselling services and employee assistance programmes remain the most common wellbeing benefits provided. Financial wellbeing remains the most neglected area.

HR’s Role in Fostering a Supportive Culture

HR professionals are instrumental in driving initiatives that promote mental wellbeing within the workplace. They serve as advocates for employees, ensuring that policies and practices are in place to support their mental health needs. Here are some key ways HR can contribute:

  • Policy Development: HR should collaborate with leadership to develop comprehensive mental health policies that address issues such as flexible work arrangements, carers’ leave, and access to resources like counselling services. HR can also support in ensuring that relevant policies are up to date with the latest UK Employment Legislation.
  • Training and Education: Organising workshops and training sessions to raise awareness about mental health and equip managers with the skills to support struggling employees effectively. Mental health Champions are an effective way to promote and encourage support at work. The charity Mind have created a Mental Health Champions Toolkit to support organisations to develop such a scheme.
  • Employee Assistance Programmes (EAPs): Implementing and promoting EAPs that provide confidential counselling and support services to employees facing mental health challenges.
  • Promoting Work-Life Balance: Encouraging a healthy work-life balance by emphasising the importance of taking breaks, utilising holidays and avoiding overwork.
  • Creating a Supportive Environment: Cultivating a culture of openness and support where employees feel comfortable discussing mental health issues without fear of judgment or repercussions.

Initiatives to Promote Mental Health Awareness Week

The week itself is an opportunity for some specific initiatives to demonstrate your organisation’s commitment to supporting mental health. Here are some ideas:

  • Virtual Workshops and Webinars: Organise virtual workshops and webinars focused on topics such as stress management, resilience-building, and self-care strategies.
  • Guest Speakers and Panel Discussions: Invite mental health professionals, advocates, or individuals with lived experiences to share their insights and stories, fostering empathy and understanding among employees.
  • Wellness Challenges: Launch wellness challenges focused on physical activity, mindfulness, or nutrition to promote holistic wellbeing.
  • Peer Support Networks: Facilitate the formation of peer support groups or buddy systems where employees can connect, share experiences, and provide mutual support.
  • Communication Campaigns: Launch internal communication campaigns using emails, newsletters, and social media to share resources, tips, and personal stories related to mental health.

Measuring Impact and Continuous Improvement:

It is also important to evaluate the effectiveness of mental health initiatives and gather feedback from employees. Regular surveys, focus groups, and one-on-one discussions can provide valuable insights into what’s working well and where improvements are needed. This feedback loop enables HR to refine future offerings or benefits and develop new initiatives, tailored to the evolving needs of employees.

For specialist HR support with any of these issues, please contact Helen Couchman in our team on 07799 901 669.