By 2020, one in three workers will be over 50 years old. With the increase of the retirement age, phased retirement, or employees just not wanting to retire, the workforce will be older than ever before, and with this comes many rewards for organisations but it can also prove tricky for employers to avoid discrimination.

As people live longer, they are likely to work longer too, and so it is not surprising that an increasing number of employees are planning to work past retirement age. From March to May 2019, more than half of the annual increase in the number of people in work occurred among those aged from 50 to 64 years, according to Office for National Statistics (ONS) figures. An ageing workforce brings with it a number of legal and ethical implications that employers need to consider.

  • The Equality Act 2010 provides protection against different types of age discrimination, including:
    less favourable treatment because of age (direct discrimination);
  • the application of a provision, criterion or practice (PCP) that disadvantages a particular age group (indirect discrimination);
  • harassment related to age;
  • victimisation.

Since the elimination of a compulsory retirement age in April 2011, it has been up to individual employers to decide whether or not to set retirement ages within their organisations. It is only possible to fix a retirement age for a job, and avoid this being discriminatory, if certain legal requirements are met. A fixed retirement age, which is on the face of it both directly and indirectly discriminatory, can be objectively justified if it can be shown that it is a proportionate means of achieving a legitimate aim.

For direct age discrimination to be justified there must be a legitimate social policy aim, such as fairly distributing employment opportunities to both younger and older workers, or the efficient planning of the departure and recruitment of staff. Further, employers cannot just rely on their own private interests/business needs and they must also be able to support these aims evidentially and empirically.

Businesses tend to wait to be approached about retirement age by an employee because the need to set a retirement age can be very difficult to prove. Tribunals certainly set a high bar in this regard.

Ethical issues for employers
HR practitioners are likely to experience an increasing number of ethical dilemmas in this area. As workers live longer and working lives are extended, organisations need to tackle age discrimination in the workplace and work to change the negative stereotyping of older workers when it comes to both retention and recruitment.

Key considerations

  • The needs of older and younger workers may change at different career stages, but do not make assumptions. It is important to treat all workers as individuals. Consult with workers, taking a consistent approach with everyone, to get an understanding of their career goals so that you can plan accordingly;
  • Promote health and wellbeing and encourage workers to maintain good health. This will become increasingly important within the ageing workforce;
  • Set up initiatives to retain experienced workers and best utilise their skills and experience. For example, encourage coaching, training and mentoring of more junior staff;
  • Flexible working is key. Workers need flexibility at different stages of their working lives and a workforce made up of a diverse range of ages can provide the balance organisations often seek;

For further advice and support on this matter speak to a member of the Solve.HR team

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Every business has different standards of what is deemed appropriate or inappropriate behaviour. While some forms of behaviour will always be inappropriate, it is important that everyone in the business understands where the line is drawn.

1. Bullying: undermining and humiliating another person. For example, off-colour jokes may appear to be simply bad taste, but it depends on the situation. They can be used to target an individual or group.
2. Harassment: unwanted conduct related to a relevant protected characteristic which violates an individual’s dignity. Such behaviour could manifest in subtle ways such as a creeping invasion of personal space.
3. Substance abuse can be identified by unusual changes in a person’s judgment, alertness, perception, performance and emotional state.
4. Violence can be easier to identify than other forms of inappropriate behaviour, and swift action is vital to deal with any incidents.
5. Disregard of company rules; reoccurring lateness, theft, disregard for company property etc.

By watching out for these 5 signs, Managers and businesses can be confident in their ability to offer staff a working environment free of inappropriate behaviour.

For guidance on inappropriate conduct at work, contact Solve on 0131 300 0433

Natwest has found itself at the forefront of the media recently when an employee went on an anti-vegan rant to one of their customers. The debacle made headlines when a Natwest customer phoned up for a loan with the bank and although the customer didn’t meet the loan requirements, the call was recorded and after investigation, it can be revealed that she spoken to in a manner which would not suggest great customer service.

After the staff member learned that the customer was vegan, he was recorded saying that “all vegans should be punched in the face” and told her that he felt vegans were forcing their beliefs on him. The customer stated that she felt his tone was “really unpleasant” and didn’t feel she should be punished for her lifestyle choices by a “big organisation.”

After listening to the recording, the bank decided to accept her loan request for £400 and pay out just under £200 in compensation.

Last year, Starbucks had to deal with public fallout after an employee mocked a customer with a disability. The customer had a lisp and the employee wrote his name on the cup as “SSSAM”.

Like the Natwest story, both of these incidents have a great impact on the Company’s branding. Poor practice, especially within visible customer-facing roles or roles susceptible to media coverages raises questions about how engaged employees are with the Company’s corporate ethos.

The impact for a Company’s brand is huge if their employees are not upholding the tone or image that is expected of the Company.

Often, improving employee engagement is incumbent on HR, as they are looked upon to improve how employees feel about the Company and how they engage with their work. A recent survey found that only just over four in 10 employees knew what their Company stands for.

If you would like help on employee engagement and retaining your company image through your employees, contact us at Solve.

Should Staff Get Paid For Snow Days

Should Staff Get Paid For Snow Days

It’s that time of year where the UK is prone to experiencing periods of heavy snowfall.  Our article aims to answer some of the more common questions on the impact of severe weather conditions.

Do I have to pay employees who cannot get to work because of severe weather?

In short, no, you are well within your rights to refuse to pay an employee who does not appear for work due to severe weather such as heavy snow.  This is because an employee who is not working is not fulfilling their contract of employment, and so therefore, you don’t have to pay them.  That said, you may wish to take a reasonable approach and pay your staff on a ‘snow day’ to maintain staff morale and your reputation as a good employer.

Do I really need a policy on severe weather?

It is good practice to have a Severe Weather and Travel Disruption Policy in place to ensure that employees are aware of the rules and procedures that the Company adopts should they experience difficulties in attending work due to bad weather or disruption to travel.

What can I do if I need employees to work even though the weather is bad?

In the modern world of work, many jobs can be done from home, and employees who frequently work at home should be encouraged to do so when bad weather approaches.  If you know that the weather is going to be bad, you might want to take a proactive approach and seek mutual agreement from staff to ensure the business can run effectively during these periods.  You should be careful about asking employees to work at home when a requirement to do so is not included in their contracts of employment.  To require an employee to work at home in severe weather will constitute a unilateral variation of his/her contract of employment requiring consultation in advance.

You should also consider the implications of the employees’ health and safety before imposing a homeworking requirement: some employees’ homes will simply not be set up to be turned into a temporary workplace.

Can employees take holidays when they cannot get to work because of bad weather?

Where employees are unable to get to work because of bad weather, taking the time as a paid holiday may be an option.  There is nothing to stop you asking the employee if they would like to take a holiday if they are unable to get to work.  Many employees will find taking paid holiday preferable to losing a day’s pay.  However, there may be circumstances in which this might not be possible. For example, where the employee has used their holiday allowance or they wish to keep their holidays for a later date.

If you are going to insist that employees take the time as holiday, you must provide them with the minimum statutory notice.  For example, if you request an employee to take 2 days holiday, you must give then at least 4 days’ advance notice.

If I close my workplace because of bad weather, do I have to pay my staff?

 If an employee is unable to work because you have made the decision to close the premises, this will in effect be a period of lay-off, therefore, unless there is a contractual provision allowing for unpaid lay-off, you should pay your employees their normal wage.

I have employees with children at schools and nurseries that are closed because of the severe weather. Do I have to give them time off when they have no childcare?

Employees have the statutory right to a reasonable period of unpaid time off for dependants.  This right applies where an employee needs to take time off work because of unexpected disruption to the care arrangements for a dependant.  An employee taking advantage of this right must inform you of the reason for the absence, and likely length of the absence.

If your business would benefit from a Severe Weather Policy, contact us at Solve. HR.

Most employers nowadays offer some form of mental health awareness in the workplace, but is enough being done to address the implications that the menopause can cause?  The menopause can arguably be closely linked to Mental Health, considering it can lead to anxiety and depression and can affect every woman differently.

The menopause can have affect women emotionally and physically, as well how they perform and interact with colleagues and customers in the workplace, which can affect their absence levels and work productivity.  Some of the more common symptoms include night sweats, insomnia, lack of concentration and forgetfulness which can lead to problems with work performance, difficulties in making decisions and a decrease in an employee’s confidence levels.  Therefore, providing a supportive and understanding culture could potentially lower the Employer’s risk of a claim for sex discrimination under the Equality Act 2010.

Employment Tribunals

The first successful employment tribunal concerning the menopause was in 2012 and was in the case of Merchant v BT plc whereby the employee alleged that she had been discriminated against on the grounds of her gender when her employer failed to deal with her menopause symptoms in the same way that it would have dealt with other medical conditions. The employment tribunal held this discriminatory and unfair and said that a man suffering from ill health with comparable symptoms from a medical condition (in this particular case, affecting concentration) and with performance issues would not have been treated in the same way.

Previous case law has recommended that employers should take medical information into account in situations of capability and employers tend to seek advice from an employee’s GP and / or Occupational Health.

Considering more woman in the UK are now returning to work after having children and working later in life, employers would be wise to put in place the means to support their female employees through menopause transition.

How can employers help?

There is much advice and support for employers available and Solve. Can offer your business support when a women is going through the menopause.  Below are some useful hints and tips to get you started: –

  • Highlight menopause as part of a wider occupational health awareness campaign, so that all employees know that their employer has a positive attitude to the issue and that it is not something women should feel embarrassed about as well as providing guidance on how to deal with the menopause.
  • Sickness absence procedures should make it clear that they are flexible enough to cater for menopause-related sickness absence. Women should experience no detriment because they may need time off during this time.  Employers may choose to record sickness related to the menopause as an ongoing health issue instead of a series of short-term absences, which will ensure that the Absence Management Procedure will not be invoked unnecessarily and in turn will provide peace of mind to employees when discussing their health concerns.
  • Raise awareness amongst your leadership and management team of how menopause symptoms may affect women in the workplace.
  • Provide women in the workplace with information on how they can get support for any issues that arise as a result of the menopause. Because of the way society treats the menopause, many women will feel uncomfortable going to their line manager, especially if it’s is a man, and other options should be available. This may be through human resources or a welfare officer. Many employers have Employee Assistance Programmes that can act as a go-between and therefore, employers should communicate their Employee Assistance Programme (EAP).
  • Where possible, aim to accommodate flexible working requests that will help women manage their symptoms, which can include exhaustion, anxiety and depression because of sudden changes in their hormone levels.
  • Consider giving employees the means to adjust the temperature e.g. provide a fan, ensure that employees take their rest breaks, and provide cold drinking water.
  • Where appropriate, refer female employees to occupational health.  And ensure that managers are aware of reasonable workplace adjustments that may be necessary to support women who are experiencing the menopause.
  • Promote physical activity, making full use of wellbeing opportunities as an added value benefit by some healthcare and group risk providers.

For help and guidance on any health related concerns, contact us at Solve.

Fixed term contracts can be effective when used properly and fairly, for example if a business has a specific project that has a limited time period then a fixed term contract would be a good option but it’s important to be mindful of the risks involved when it comes to terminating a fixed term contract.

Employees who are on a fixed term contract have the same legal rights as permanent staff.  There is also the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 to take into account when considering terminating an employee.  So it is not as straight forward as simply terminating once the contract has reached its end date and failing to take into account the risks involved can prove very costly.

When an employee is nearing the end of a fixed term contract take the following points into consideration:

  1. The need to understand, if any, what notice provisions are included in the contract.  Once you know this, you can determine when to start discussing terminating or renewing the contract with the employee.  Depending on how the contract of employment is written, some fixed term contracts may expire automatically on the expiry date or completion of a task but this would need to be specified in the contract.
  2. If there is a requirement to serve notice before the expiry date, failing to do so may entitle the employee to a payment in lieu of notice or an extension to the contract.
  3. If looking to terminate the contract early (with the exception of a gross misconduct dismissal) then it’s important to have a break clause otherwise this could prove costly as the employee may be able to make a claim for loss of earnings for the remainder of the term.
  4. By law, the non-renewal of a fixed-term contract amounts to a dismissal. Even where employment continues past the end of the term, there may still be a dismissal if the terms and conditions are different from the original contract, even if the employee has accepted the new terms.
  5. If an employee has two or more years’ continuous service you can only terminate if you can show one of the five potentially fair reasons for dismissal (conduct, capability, redundancy, illegality/contravention of statutory duty or some other substantial reason).
  6. If using redundancy for the reason for non-renewal consideration will need to be given to the pool for redundancy as well as the availability of alternative employment.  The employee may also be entitled to a statutory redundancy payment.
  7. If a fixed term contract has been used to cover the absence of a permanent employee, the fixed term employee will not be made redundant upon the return of the permanent employee.  In this case you would need to rely on the ‘some other substantial reason’ (SOSR).

In order to reduce the risks it’s important to have clearly written clauses within a fixed term contract and to monitor the operation of a fixed term contract.  It’s good practice to diarise the expiry dates of fixed term contracts so that decisions can be made in good time as to whether a contract is to be renewed or terminated.

For help and guidance on fixed term contracts speak to us at Solve.