In this Summer Employment Newsletter, Tom Evans gives helpful guidance on key employment law.
How do you manage stress in the workplace?
ACAS have issued guidance (https://www.acas.org.uk/managing-work-related-stress) for employers on managing stress in the workplace following a YouGov poll which found that I in 3 workers in Britain feel that their employer does not effectively manage stress in the workplace.
Stress is defined by the Health and Safety Executive (HSE) as ‘the adverse reaction people have to excessive pressures or other types of demand placed on them’ and can lead to various physical and mental health conditions, such as heart disease, back pain, digestion issues, anxiety and depression.
It is important to recognise that stress may be caused by work-related issues or personal circumstances. A recent ACAS poll identified a growing number of workers feeling stressed due to the cost of living crisis, for example.
Managers should look out for signs of stress among employees, which can include:
- poor concentration
- finding it hard to make decisions
- being irritable or short tempered
- low mood
- avoiding social events
If signs of stress are identified, managers are encouraged to speak with the employee to see how they can be supported at work. Examples of how employers can support employees in coping with stress include:
- referring them to a counselling service
- allowing them to take paid or unpaid time off
- implementing a temporary change to their duties or working hours
Employers should look to help reduce stress among employees in order to reduce absence levels, improve productivity, reduce disputes and ensure that employees are happy at work.
Are your non-compete clauses too long in duration?
Non-compete clauses are generally regarded as the most difficult restrictive covenant to enforce as they prohibit employees from working for businesses setting up in competition with their former employer for a number of months in order to protect customer relationships, confidential information and workforce stability. Non-compete clauses are often held to be drafted too broadly in terms of duration or geographical area and therefore unenforceable. Non-compete clauses should only ever be drafted so far as is reasonably necessary to protect an employer’s legitimate business interests.
The Government has proposed to limit the duration of non-compete clauses to 3 months, in the hope that this will encourage entrepreneurship and innovation, though many believe that employers may look to impose longer notice periods and place employees on garden leave in order to keep employees from joining competitors for longer than 3 months.
It is not yet clear whether the proposed limit would apply for new contracts or retrospectively. If the latter, employers will face a significant administrative burden of having to amend contracts of employment. A statutory limit on the duration of non-compete clauses will however provide employers and employees with greater certainty on their enforceability, reducing the need for costly litigation.
Employers should be aware this is currently a proposal by the Government and not current law. We will keep you updated.
When will a Tribunal strike-out a claim?
A recent Employment Appeal Tribunal decision upheld the decision of first instance, striking out a claim on the basis that it had no reasonable prospects of success. In HHJ Kalyani Kaul KC v Ministry of Justice & Ors  EAT 41, the Claimant brought claims of discrimination, victimisation and harassment relating to an alleged mishandling of grievances. The Respondents were successful in their application to have the claims struck-out for having no reasonable prospects of success.
The Claimant appealed the decision on the basis that striking-out the claim was premature and not a conclusion available to the Tribunal Judge. However, the Employment Appeal Tribunal held that the claim was one of ordinary and undisputed facts, and therefore the Tribunal Judge was open to take the facts at face value and find that the claim had no reasonable prospects of success.
Respondents seeking to strike out claims have a high bar to meet as Tribunals do not make such an order lightly, however they are open to do so where claims are held to have no reasonable prospects of success. Respondents should therefore consider making an application for strike-out in suitable circumstances in an attempt to avoid the time and cost of defending a claim through to a final hearing. Where a claim is struck-out, Respondents also have grounds to seek that a costs order is made against the Claimant.
What are reasonable adjustments for mental health?
Employees with mental health conditions may be considered disabled for the purposes of the Equality Act 2010, where the condition has a substantial and long-term adverse effect on their ability to carry out day-to-day activities. Accordingly, employers are required to make reasonable adjustments. ACAS has issued new guidance to include examples of reasonable adjustments employers ought to consider in order to assist employees suffering from mental health conditions. Examples include:
- allowing flexible working
- moving an employee to a less stressful role or department
- providing rest areas
- relocating an employee’s workspace to a quieter area to reduce sensory demands
- agreeing a preferred mode of communication to reduce anxiety
A detailed list of examples can be found here: https://www.acas.org.uk/reasonable-adjustments-for-mental-health/examples-of-reasonable-adjustments-for-mental-health
It is important that employers consider what reasonable adjustments can be made to assist employees with mental health conditions and it is suggested that employers ought to consider this even where the condition may not be classed as a disability for the purposes of the Equality Act 2010. Should employers fail to make reasonable adjustments, they are at risk of disability discrimination and constructive unfair dismissal claims.
What has changed post-Brexit in employment law?
The government has announced that all EU law will remain binding unless expressly repealed, following a recent amendment to the Retained EU Law (Revocation and Reform) Bill. The Bill initially included provision to automatically revoke all EU law (unless a statutory instrument was passed to keep a specific law in force), which would have caused significant certainty within employment law, given that much of it is derived from EU directives.
The latest announcement has reversed this position, meaning that all EU law will now remain binding, unless expressly amended or repealed, though the government is considering making the following amendments:
- take away the need to collectively consult in a TUPE situation for businesses with less than 50 employees whether less than 10 are to transfer
- permit ‘rolled-up’ holiday pay
- no longer require employers to keep time records under the Working Time Regulations
We will keep you updated on the effects of the Bill in upcoming newsletters.
What new leave entitlements do parents and carers have?
Three new family friendly Acts have received Royal Assent on 24 May 2023, introducing greater leave entitlements for parents and carers. It is believed that the new legislation will protect vulnerable workers and increase workplace participation.
- The Neonatal Care (Leave and Pay) Act allows parents of children in neonatal care to take up to 12 weeks of paid leave, in addition to their usual maternity and paternity leave entitlements.
- The Protection from Redundancy (Pregnancy and Family Leave) Act extends the current redundancy protections that apply to employees on maternity leave, adoption leave and shared parental leave to also apply to pregnancy and new parents that have recently returned to work.
- The Carer’s Leave Act will allow those providing long-term care to dependants to take up to 12 months’ unpaid leave.
Secondary legislation is expected to follow in due course setting out how the new Acts are to be implemented, though we anticipate employers will have to introduce new policies to provide for the new leave entitlements. We will keep you updated in future newsletters.
For advice on Employment Law or HR please contact Tom Evans at email@example.com or call him on 0151 230 1217