GOVERNMENT EMPLOYER GUIDANCE: HELPING PEOPLE RETURN TO WORK (20 March 2023)

Following on from the Chancellor’s Budget announced on 15 March 2023, the Government has published Employer Guidance: Helping People Return to Work (Returnships) for employers who are seeking to support people returning to work after a career break. The guidance focuses on supporting returners who have taken time out of work for childcare or other caring responsibilities and may also be useful for those who have taken time out for health, relocation or other reasons.

The Guidance is divided into 8 sections as follows:

1. Top tips for helping people return to work
2. About this guidance
3. Benefits of supporting returners
4. Things to consider before you start
5. Designing a return-to-work programme
6. Engaging and onboarding returners
7. Delivering the programme
8. Final reflections

The guidance was produced by the Equality Hub and acknowledges that it is an update of documents initially co-authored by Women Returners and Timewise, organisations which have considerable experience of working with people returning to work following a break to care for others.

The Guidance notes that making small changes to recruitment practices can have a positive impact on the number of returners applying for vacancies. Best practice includes the following:

– Research shows that many non-workers would prefer to work flexibly. Enhancing and promoting flexible working policies, including advertising jobs as flexible and offering flexible working, attracts more applicants than adverts where flexibility is not mentioned.

– Avoiding unnecessary requirements that might discourage returners, for example, asking for recent work experience or references, helps widen the pool;

– Advertising job vacancies as suitable for returners, and part-time if possible, has a positive effect on the number of women who apply.

On the flip side, for those seeking to return to the workplace following a career break, the Government has published guidance entitled Returner Toolkit: Helping you Back to Work.

Businesses may find these guides useful, particularly if having difficulties recruiting and considering ways to get the best candidate for the role.

What does the spring budget mean for Northern Ireland businesses?

Members reading the Spring Budget  may sometimes find it difficult to discern what parts apply in Northern Ireland and what parts are for Great Britain (or in some cases England) only.

Some good news is Office for Budget Responsibility (OBR) now predict inflation will decrease from 10.4% to 2.9%. The Chancellor attributed high inflation as causing the current levels of strike action across UK; no doubt the high inflation has not helped.

Other good news is that the economy will now avoid a technical recission.

We have set out our summary digest below:

• Under the Barnett Formula (mechanism to automatically adjust public expenditure allocated to NI to reflect public spending in England) Northern Ireland Executive will receive a further £130 million

• Corporation Tax will still increase from 19% to 25%, as planned, from 1 April 2023.

• Fuel Duty will be frozen for an additional 12 months, which may help some businesses encourage those to come back into the workplace.

• However, from 1 April 2023 other forms of Tax Relief will be available with on IT equipment, plant, or machinery investments the cost which can be deducted from taxable profits over the next three years.

• The Chancellor announced the development of 12 new Investment Zones with one planned for Northern Ireland. The government will work with the devolved authorities on this proposal.

• Energy Price Guarantee (EPG) cap will continue for another 3 moths £2,500 until July 2023.

• A big disappointment for Northern Ireland (as we already lag behind Great Britain on childcare funding) is that the Headliner of ‘30 hours a week free childcare for parents of children from 9 months to 4 years” will not apply in Northern Ireland. Unlike the rest of Great Britain there is no free childcare scheme here Childcare Strategy so needed here.?

• Returnerships targeted at the over-50s, plans to refine existing skills programmes to make them more accessible to older workers, giving them the skills and support they need to find a recognisable path back into work.

• In Pensions the Lifetime Allowance Charge will be abolished and the Annual Allowance will be increased from £40k to £60k.

• Occupational Health Pilot Subsidy Scheme for small and medium-sized businesses will be expanded.

What HR Need to Know on Post-Termination Restraints / Restrictive Covenants (March 2023)

We have supported businesses on the legalities of drafting post-termination restraints / restrictive covenants and thought it might be helpful to set out a short summary of the law explaining restrictive covenants and their uses.

Post-termination restraints / restrictive covenants are contractual clauses that restrict or restrain what an employee can do after their employment ends.

They commonly come as a set of ‘cascading’ terms and are usually combined with Garden Leave and Pay in Lieu of Notice (PILON) clauses.

The legal position is that post-termination restraints / restrictive covenants are void as an unreasonable restraint of trade unless the employer can show that they are reasonable and go no further than necessary to protect the legitimate interests of the business.

If the clauses are too wide, the Courts will use the ‘blue pencil’ test to strike out the offending parts that go beyond what is necessary to protect the legitimate interest of the business e.g. terms that are geographically too wide or which extend for too long a period of time.

Courts will not however rewrite or insert any additional wording into the clause but will read the remaining parts and only uphold the clause if it remains a reasonable restraint. This is the reason why cascading clauses are used; if one clause is struck out, then the next clause may be found to be reasonable.

To ensure that post-termination restraints / restrictive covenants are enforceable, businesses should tailor them specifically to the post and/or the person they relate to. The question businesses should ask themselves is what harm could this person do to the business if they were to leave?

Below is a list of types of post-termination restraints / restrictive covenants clauses set out in cascading order from most restrictive to least restrictive:

• Non-Compete: prevents a person from joining a rival employer for a defined period after termination. This is the widest and most restrictive of the clauses as it effectively places a bar on free movement, therefore careful drafting is required as it will be scrutinised by the Courts.

• Non-Dealing: prevents a person from approaching, or accepting an approach from, clients or customers of a former employer for the provision of services. It must be defined to those that they know are clients or customers of the business.

• Non-Solicitation: prevents a person from approaching a client or customer of a former employer with a view to obtaining their business. However, they can accept work if approached by the client or customer. Again, it must be defined to those that they know are clients or customers.

• Non-Solicitation of Employees: (also called non-poaching) prevents a person from approaching existing employees to come with them. It must be defined to those that they know are employees.

Legal enforcement is usually by way of an injunction, an order which prevents the person from carrying out the restricted act.

Commonly, businesses will first adopt a softer approach of writing to employees and seeking an undertaking that they will not breach a post-termination restraint / restrictive covenant. They may also write to the new employer drawing attention to the clause and stating that they may consider action for unlawful inducement to breach contract.

Those of you who enjoy case law may be interested in reading the only Supreme Court case on this subject, Tillman -v- Egon Zehnder Ltd [2019] UKSC 32.

Please note that this is not a comprehensive guide, but a rough outline only. For further guidance, contact one of the legal team at info@eefni.org

 On 09 March 2023, the Home Office launched a new Electronic Travel Authorisation (ETA) scheme.

This is a new requirement for people who do not need a visa to come to the UK. It gives people permission to travel to the UK, and it is electronically linked to their passports.

The ETA allows people to come to the UK for up to:

• 6 months for tourism, visiting family and friends, business, or study; and
• 3 months on the Creative Worker visa concession.

It also allows people to transit through the UK.

From 15 November 2023, Qatari nationals will need an ETA if they are travelling to the UK.

From 22 February 2024, nationals from the following countries will require an ETA when travelling to the UK:

• Bahrain
• Jordan
• Kuwait
• Oman
• Saudi Arabia
• United Arab Emirates

More countries will be added later and the scheme is intended to be fully open by the end of 2024.

By the end of 2024, the ETA scheme will be a requirement worldwide for visitors who do not need a visa for short stays including European visitors.

ETAs will last for two years and can be used to make multiple visits to the UK.

The factsheet explains that ETAs are not required for people who have either:

• a British or Irish passport;
• permission to live, work or study in the UK; or
• a visa to enter the UK.

Those who are legally resident in Ireland, and from a nationality that does not usually require a visa to visit the UK, will not be required to obtain an ETA when travelling to the UK from within the Common Travel Area.

Links to the Guide and Fact Sheet can be accessed here.

We have been notified by the Home Office that the  Employer’s Guide to Right to Work Checks has been updated and asked to communicate to businesses..

We understand that the most significant updates, some of which you were already be aware of, relate to:

• clarification for employers on the use of Identity Document Validation Technology (IDVT) and Identity Service Providers (IDSPs) to support manual document-based and Home Office online checking service right to work checks.
• the use of “Reusable Identities” for checks involving the use of IDSPs (Annex C, Appendix A).
• changes to enable some individuals with an outstanding, in-time application for permission to stay in the UK, or an appeal, or Administrative Review (3C leave) to prove their right to work using the Home Office online checking service. For more information, please refer to this factsheet
• confirmation that Re-Admission to the UK (RUK) endorsements are an acceptable document for the purposes of right to work checks (List A, no. 4).
• information on sponsored work and student categories (Annex B).
• information on short-dated Biometric Residence Permits (BRPs).
• the ‘Employment of Ukraine nationals’ annex is now solely contained within guidance under Annex D.

If you have any queries please contact the Legal Team.

INQUIRY LAUNCHED INTO HUMAN RIGHTS AT WORK

The Joint Committee on Human Rights has launched a new inquiry to examine how human rights are protected at work.

In its introduction it states:

‘Work is a central aspect of people’s live as it often provides their principal source of income and can provide a sense of purpose. Employment can also contribute to an individual’s feelings of self-respect and dignity. However, the world of work has also been recognised as involving an imbalance of power between employer and workers This imbalance can lead to exploitation, discrimination and other harmful practices.’

The Committee will be examining:

1. Freedom of association and the Right to STRIKE (Article 11)
2. Right to privacy and Surveillance at Work (Article 8)

3. Freedom of Thought Conscience and Religion and Freedom of Expression in the Workplace (Art 9)
4. Labour Market Exploitation (Art 4)
5. Retained EU Law and workers’ rights – looking at extent UK’s compliance with human rights obligations and protection of is dependent on retained EU law?

6. International Human Rights Treaties compliance including ILO

The Committee states it is undertaking a separate piece of work providing legislative scrutiny of the Strikes (Minimum Service Levels) Bill.

You can read it Inquiry Launched into Human Rights at Work     

The closing date for written submissions is 24 March 2023. We welcome any comments Members may have on this.

NEW EQUALITY COMMISSION GUIDANCE FOR EMPLOYERS: A GUIDE TO EMPLOYMENT EQUALITY MONITORING

The Equality Commission for Northern Ireland has published new Guidance titled  A Guide to Employment Equality Monitoring  for employers on how to conduct employment equality monitoring for the purpose of promoting equality of opportunity in employment.

It outlines what employers should consider when planning to monitor and it offers some practical suggestions, such as sample questions, which will be very welcome by businesses

The Guide covers both mandatory monitoring and also extending the monitoring into other non-mandatory areas:

• Gender Reassignment & Gender Identity questions
• Racial and ethnic group questions
• Age
• Disability questions
• Sexual orientation question
• Marital or civil partnership status question
• Dependants and caring responsibilities

It is divided into five Chapters. Chapter 3 is devoted to looking in details at the data protection issues arising from monitoring.

Chapter 1: Why monitor?

Chapter 2: The equality law context covers
– Mandatory monitoring
– Voluntary Workforce Monitoring
– Monitoring carried out by designated public authorities

Chapter 3: Understanding the data protection laws

Chapter 4: How to monitor
– Plan
– Collect
– Analyse
– Review

Chapter 5: Sample monitoring questionnaire

TOILETS & DIRECT SEX DISCRIMINATION (3 February 2023)

The GB Employment Appeal Tribunal (EAT) has held that a Respondent’s provision of inadequate toilet facilities for women subjected the claimant to direct sex discrimination.

FACTS

Ms Miller was an Office Clerk for Town Council based in a Church owned building that also hosted a playgroup.

Male toilets were in the Council’s part of the building; female toilets were in part occupied by playgroup and also used by the children.

To use the playgroup toilets females had to:

• attract the attention of playground staff (not always easy to do);
• wait until toilets were checked to see if child was present.

[This arrangement was not suitable if females needed to use toilet urgently.]

Council then allowed females to use male toilets. These consisted of single cubicle & trough urinal. To use them:

• Sign was placed on door when being used by females;
• Sign did not always stay in place;
• Females could only use the cubicle;
• Cubicle was only accessed by passing urinal;
• Risk of males entering despite any sign (lock ONLY installed on internal toilet main door 13 months later);
• Females might see male using the urinal;
• Male toilets had no sanitary bin (only installed 6 months after complaint) and then only emptied on request.

EAT JUDGMENT:
EAT identified 3 principles issues:

• What was the treatment
• Was it less favourable than that of actual or hypothetical comparator
• Was there detriment.

EAT was keen to emphasise that ‘different‘ treatment is not always less favourable and; the same treatment can be less favourable.

Here, despite the provision of the same toilet it was less favourable as she was not provided with toilet facilities that were adequate to her needs because there was:

• risk of coming across males using the urinal and;
• a lack of sanitary bin which was regularly emptied.

EAT found it did not have to consider the mental process of discriminator because the treatment was inherently because of sex.

COMMENT

Unlike indirect discrimination, direct discrimination (with the exception of age) cannot be justified.

So when she succeeded in establishing direct discrimination she won her case.

This is a salutary warning to business  to ensure that facilities provided to females are no less favourable to one sex when compared to the males, or vice versa.

See Earl Shilton Town Council v Miller

Event Brochure 2023

Our event brochure for the first half of 2023 can be downloaded here.

Our programme covers a variety of key employment topics with courses designed for HR professionals and also the managers who deal with employment relations issues.

Early booking is recommended to secure a place.

GB CONSULTATON: PANEL COMPOSITION IN EMPLOYMENT TRIBUNALS & EMPLOYMENT APPEAL TRIBUNAL

Senior President of Tribunals has launched the above consultation proposing to change who can hear Tribunal cases in an effort to make the process more accessible and efficient.

The Consultation – panel composition in the Employment Tribunals and the Employment Appeal Tribunal states that including non-legal members on panels can affect the length of time involved or extend the time taken to make a decision or judgment.

It notes that listing hearings on dates convenient for three members of panel is also more difficult than where a judge can sit alone.

The Consultation seeks responses to 8 Questions as follows:

1. Do you agree that cases in the ETs which are currently heard by a panel should instead be heard by a judge alone by default?

2. Do you agree that unfair dismissal claims in the ETs should continue to be heard by a judge alone by default?

3. Do you agree that other kinds of claims in the ETs which are currently heard by a judge alone by default should continue to be?

4. Do you agree that cases in the EAT should continue to be heard by a judge alone by default?

5. Do you agree that there should be a power to direct that a case be heard by a panel of two judges, to deal with particularly complex cases or where other circumstances justify it?

6. Do you agree that decisions other than at substantive hearings should be made by a judge alone in all cases?

7. In cases which are judge alone by default, how should the discretion to sit with a panel be guided and exercised?

8. Do you have any other comments?

This GB consultation is open until 27 March 2023 and we will keep Members appraised of any developments. It will be interesting to see if a similar approach is considered for Northern Ireland. However, the Northern Ireland President is about to launch his judicial mediation process in an effort to make the process more efficient. Therefore, if this were to be considered for Northern Ireland it may not be this year.