The TUPE effect

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) protects employees if the business in which they are employed changes ownership.

It applies to employees of any size of business in the UK regardless of where the head office is located. In addition, employees of a UK business who are based outside the UK can still be protected in certain circumstances.

The effect of TUPE (except when the business is insolvent) is that the employee’s job transfers to the new company along with their existing employment terms and conditions.

If the employer is insolvent and the business is being transferred to or taken over by another company, the protection employees get is different from a normal transfer. The employees are unlikely to be protected under TUPE if the business is closing down, there are however specific provisions available depending upon the circumstances and the requirement to consult will still apply, even if a company becomes insolvent at very short notice.

TUPE can be complex in nature and we strongly advise that employers seek professional advice before they proceed.

There are two types of TUPE transfer under the regulations:

  • Business transfers – where a business or part of a business moves from one employer to another. This can include mergers where two companies close and form a new one.
  • Service provision changes – where an in-house service (e.g. cleaning or workplace catering) is outsourced to a contractor or a current contract ends and is given to a new contractor or the work is transferred in-house by the former customer. Employees are not protected under TUPE if the contract is for the supply of goods for the company’s use (e.g. a restaurant changing food suppliers) or for a single event/short-term task (e.g. a catering company being used for a corporate event). Only the employees who can be clearly identified as providing the services being transferred are protected.

A good example of a sector that is subject to frequent service provision change is cleaning and facilities and TUPE becomes a factor when a client retenders and appoints a new cleaning or facilities provider. TUPE will usually apply, even if only one employee undertakes work for that particular client.

If there’s a trade union in the workplace, the employer must inform and consult with the representatives from the union. Employers with less than ten employees can inform and consult directly with employees. Otherwise, employee representatives must be informed and consulted. If there are no representatives they must be specially elected in accordance with TUPE for the purpose of the transfer.

Employee’s representatives must be consulted about anything that will affect employees and new Employers should try to gain agreement about any proposed changes, often referred to as “measure items”.

Four weeks before the transfer the existing employer must provide the new employer with information about employees. This normally includes:

  • name
  • age
  • main details of employment
  • disciplinary action taken against employees in the last two years
  • grievances raised by employees in the last two years
  • legal action taken by employees against the employer in the last two years
  • potential legal action the employer thinks employees might raise

TUPE regulations mean employees shouldn’t lose their existing employment rights. The new employer takes over employees’ employment contracts, including all the previous terms and conditions of employment, holiday entitlement, period of continuous employment and any collective agreements previously made. It’s a breach of contract if the new employer doesn’t meet the terms of the previous employment contract. Any failures of the previous employer to observe employees’ rights may enable employees to make a retrospective claim for discrimination against the new employer, even if the failure took place before the transfer, it is therefore usually the case that an indemnity is sought by the new employer from the existing employer prior to the transfer taking place.

Employees can refuse to work for the new employer. This is the same as resigning – they won’t normally be able to claim unfair dismissal or redundancy pay. Notice isn’t required. The employee simply tells the employer, or the new employer, that they do not wish to transfer before the transfer happens. Employment then ends at the time of transfer. But be aware that if an employee’s proposed working conditions are significantly worse because of the transfer, they can object to the transfer, or resign and claim unfair dismissal.

If an employer knows that an employee is transferring to another company, they can’t normally change the employee’s terms and conditions to make them the same as those of the new company – even if the employee agrees to the change. Also, the new employer can’t change the terms and conditions if the reason is the transfer itself.

The new employer can change an employee’s terms and conditions by agreement if it is for an ‘economic reason’ (to do with how the company is performing), a ‘technical reason’ (to do with the equipment or processes the company uses) or an ‘organisational reason’ (to do with the structure of the company) involving changes in the workforce or workplace, such as a result of redundancies or a move from a managerial to a non-managerial position.
After the transfer employers can improve employees’ terms and conditions only with agreement. For example, an increase in the amount of holiday to achieve equity.

Employees can be dismissed for an economic, technical, or organisational reason involving changes in the workforce (redundancies) and the normal rules around fair dismissal apply.

Collective agreements in place before the date of the transfer must be honoured, but the terms and conditions in the agreement can be renegotiated after one year if the change isn’t less favourable to the employee.

Employees’ company pension rights earned up to the time of a transfer are protected, but the new employer doesn’t have to continue an identical pension.

When the transfer is complete, employees should get an up-to-date written statement of employment, giving the name of the new employer and a statement that their terms and conditions haven’t changed. If their tax records are being updated, they will get a P45.

The new employer can’t make employees redundant just because they were transferred from another employer. However, the new employer can consult about redundancies before the transfer if the old employer agrees. If an employee is made redundant for an ‘economic, organisational or technical’ reason involving changes to the workforce, they may be entitled to a redundancy payment.

HR Wise provides an employee handbook and employment contracts (incorporating a statement of particulars). They are regularly updated by an industry expert, so you don’t have to worry about keeping on top of things. If you use our handbook and employment contracts, we help you navigate potential TUPE situations.

Please get in touch if you would like to enjoy affordable peace of mind.

Contains public sector information licensed under the Open Government Licence v3.0.

Changing employment terms?

As your business develops you may consider changing your employment terms to take account of changing roles, customer needs, working conditions or salary for example. We advise you to go about this in a structured way, explaining your rationale and communicating and engaging with your employees to ensure that they feel they have had a chance to contribute to the nature of the change and how it is applied. If you approach change in a positive manner, you are more likely to gain agreement to a change and, even if the change is not a popular one, avoid unnecessary conflict and potentially a legal challenge.

By law, every employee in the UK has an employment contract. Contractual terms may be written or implied including what is considered to be “custom and practice” i.e. how things actually happen. It does not matter if it is not in writing or was not even discussed.

An employer can make a change (‘variation’) to an employment contract if:

  • there’s something in the contract that allows the change
  • the employee agrees to the change
  • the employee’s representatives agree to the change (for example, a trade union)
  • An employer can force a new contract on employees, by dismissing with notice and e-engaging the employee on the new terms and conditions without a break in service, although this should be a last resort and could lead to legal action.

Generally, where a right to make, changes are referred to in the contract, the change can only be minor or reasonable in nature. To make significant changes such as reducing pay, changing hours, or changing the place of work, you will need to consult. Where you formally recognise trade unions or a staff association by way of a collective agreement, you will also need to consult with staff representatives before you start to consult with individual employees.

You should ensure that you are aware of historical agreements with your employees. If an employee was transferred into your business under specific terms and conditions (TUPE) you will need to understand the implications of the proposed change as the employees’ terms and conditions may still be protected in law.

It is important to be clear about your reasons for making the change. What is driving the change? What will the change achieve? What will happen if the change is not made? Think about how you can go about communicating the change in a positive way, considering mitigation for the change if it is contentious and explaining to employees how they can be involved and suggest alternatives. Mitigation does not have to be pay-related, for example, appropriate mitigation might be extra leave or help with travel costs for a time if employees will have to travel further to get to work.

Once your consultation has concluded and your final solution has been determined you will need to write to the affected employees within a month to tell them exactly what has changed and where they can find information about the change.

Imposing change without reasonable efforts to seek agreement can lead to conflict, loss of great employees, falling morale and productivity and/or a claim resulting in damages for loss because of your breach of contract. In some situations, the change could be construed as constructive or unfair dismissal and/or direct or indirect discrimination if you have not fully considered the impacts of your proposed change.

It is better and less stressful to have good employment contracts backed by a suitable employee handbook so that everyone is clear from the start. This is what HR Wise offers.

The Importance of an Employee Handbook

Why should your business have an employee handbook?

In the HR Wise January blog, the focus was on the Employment Contract. Many employers choose to support their contract of employment with an employee handbook. Although not explicitly required by law, having an employee handbook is something a good number of employers, whether  large  or small, adopt as a matter of course. Drafted properly, handbooks can form a useful tool for the promotion of a healthy workplace and create a framework for positive working relationships.

Where the employment contract provides the specifics for an individual employee, the handbook provides details that are relevant to every employee, regardless of their role in the company. It is for that reason that handbooks and contracts will often state that the contract will supersede the handbook where expressly stated in an individual’s letter of appointment or contract of employment, to recognise any personalised arrangement.

An employee handbook is helpful in that it can bring together all of your relevant policies and procedures into one document which can then provide a useful reference point for managers and employees. An employee handbook provides a company with the opportunity to define in words the company culture, vision, values, and mission and describe the types of behaviours the company expects from their employees. The handbook can be used to remind employees of all the company benefits and entitlements which the company has chosen to invest in and provide a brief company history and other interesting information.

A good handbook will be comprehensive but balanced.  Ensuring your handbook is easy to use and accessible is important or employees and managers may be put off from referring to it. However, producing a handbook is not a once only activity, a handbook is a living document which must be maintained to ensure it continues to reinforce your strategy and practices and to ensure it reflects any changes to your policies and procedures.

Contractual or Non-contractual?

  • A handbook can be classed as part of the employment contract however, if a handbook is expressed to be contractual, it will be treated as though all of its policies were included within the employee’s contract, so the employee will be strictly bound by them and if the employer fails to adhere to its own policy, it may be liable for breach of contract, opening the door for constructive dismissal claims.
  • A non-contractual handbook allows for more flexibility – policies can be altered and changed, within reason, without requiring explicit employee consent, and to quickly accommodate any change in the law. Your handbook should explicitly state whether it is or is not contractual (or in some cases which policies are, or are not, contractual).

Employers can use the policies in an employee handbook to provide guidance on the ethical and legal treatment of employees. A handbook should provide direction for employees planning annual or parental leave, reporting sickness, expectations of conduct etc., explaining exactly how the company will deal with an issue and what an employee can expect.

A handbook is a useful tool for orienting new members of staff. Many employers use the handbook to help new members of staff familiarise themselves with the company. An employee handbook can  cover key policies areas including:

  • Expectations of staff – raising grievances, facing disciplinary procedures and behavioural standards.
  • Avoiding Conflict of Interest – Anti-corruption/bribery/tax evasion – employers have a duty to take reasonable steps to prevent these offences.
  • Valuing Diversity & Dignity at Work – it’s vital to make sure a commitment to equal opportunities is stated clearly in the handbook, not only to promote a positive working environment but also because employers can be liable and vicariously liable for discrimination against employees (or even prospective employees).
  • Leave & Absence Arrangements – Annual leave, sickness absence, maternity, paternity, parental, shared parental and adoption leave – ensure your employees are aware of the different leave options and what they are entitled to.
  • Health and Safety – employers with more than five employees have a statutory duty to create a written statement of health and safety policies and to bring this to the attention of employees.
  • Enabling performance at work – induction, probationary support, appraisal and where an individual is unable to fulfil their role in spite of support, capability procedure.
  • Protection of business interests – for example, where intellectual property applies.
  • Leaving employment – retirement, resignation and processes which apply when an employee leaves the company.

The employee handbook helps to ensure employees understand what is acceptable and what is expected, if key policies and procedures are not expressly stated, it can lead to potential conflict, for example, your social media policy or data protection policies. For that reason, we would advise you ask your employees to sign and acknowledge that  they have reviewed the handbook and have understood and agreed to follow the polices.

To summarise, an employee handbook provides a useful tool for maintaining an open and transparent relationship between employees and management.

The HR Wise package provides a legally compliant employment contract and an employee handbook that is comprehensive and easy to digest. This can support your company to  affirm company policies and procedures and demonstrate “reasonable care” towards your employees.  We will ensure your handbook is up to date, and that it reflects any legislative changes thereby remaining compliant with the law.  The handbook we provide is instantly accessible online, through the HR Wise portal, saving unnecessary printing costs and ensuring your managers and employees are always able to refer to the current version.

Please get in touch if you would like to enjoy affordable peace of mind in this respect.

Employment Contracts

A woman signing a contractAll employees have an employment contract with their employer from the moment they accept a job offer. It’s an agreement that sets out the terms of employment and gives an employee’s:

  • employment conditions
  • rights
  • responsibilities
  • duties

It is good practice to write the terms down, for the sake of clarity, but they don’t have to be.

The overarching “contract” usually comprises a number of documents:

  • an offer of employment (sometimes referred to as a letter of appointment or offer letter),
  • a statement of particulars which is required on or before the individual starts work, and
  • a contract of employment which can be provided up to two months later.

Some employers combine all or some of these documents rather than provide three separate documents.

Both parties must stick to the contract until it ends (for example, by either party giving notice or with an employee being dismissed) or until the terms are changed (usually by agreement). When a letter of appointment (offer letter) is provided, it may incorporate some conditional terms to allow for receipt of employment checks such as the to right to work in the UK, qualifications required to undertake the role and references to be received and deemed satisfactory to the employer.

If a person has an agreement to do some work for someone (like paint their house), this isn’t an employment contract but a ‘contract to provide services’. Please refer to our guidance on employment status which can be found here.

An employer should make it clear which parts of the contract are legally binding and the terms could be:

  • in a written contract, or similar document like a written statement of employment
  • verbally agreed
  • in an employee handbook or on a company notice board
  • in an offer letter from the employer
  • required by law (for example, an employer must pay employees at least the National Minimum Wage)
  • in collective agreements- negotiated agreements between employers and trade unions or staff associations
  • implied terms – automatically part of a contract even if they’re not written down

If there’s nothing clearly agreed about a particular issue, it may be covered by an implied term – for example:

  • the employer providing a safe and secure working environment
  • a legal requirement like the right to a minimum of 5.6 weeks’ paid holidays
  • something necessary to do the job like a driver having a valid licence
  • something that’s been done regularly in a company over a long time like paying a Christmas bonus.

A written statement of employment particulars stating the main conditions of employment must be given to employees and workers when they start work.

Technically, the employer must provide the principal statement (statement of particulars) on the first day of employment and the wider written statement (contract) within 2 months of the start of employment. However, at HRWise we believe it is good practice to provide all of the relevant information prior to an employee starting work.

Employers must tell employees or workers about any changes to the written statement within one month of making the change.

The principal statement must include certain specified information:

On the first day of employment the employer must also provide the employee or worker with information about:

  • the employer’s name
  • the employee’s or worker’s name, job title or a description of work and start date
  • how much and how often an employee or worker will get paid
  • hours and days of work and if and how they may vary (also if employees or workers will have to work Sundaysnights  or overtime)
  • holiday entitlement (and if that includes public holidays)
  • where an employee or worker will be working and whether they might have to relocate.

If an employee or worker has to work outside the UK for more than a month, the principal statement must also include:

  • how long they’ll be abroad
  • what currency they’ll be paid in
  • what additional pay or benefits they’ll get
  • terms relating to their return to the UK

Certain additional information must also be provided. This can be included in the principal statement (statement of particulars) or be provided in a separate document. If it is in a separate document, this must be something that the employee or worker has reasonable access to, such as on an intranet:

  • if an employee or worker works in different places, where these will be and what the employer’s address is
  • how long a job is expected to last (and what the end date is if it’s a fixed-term contract)
  • how long any probation period is and what its conditions are
  • any other benefits (for example, childcare vouchers and lunch)
  • obligatory training, whether or not this is paid for by the employee
  • For employees, it must also include the date that a previous job started if it counts towards a period of continuous employment in some cases a company will recognise service with another company when calculating continuous employment.
  • sick pay and procedures
  • other paid leave (for example, maternity leave and paternity leave)
  • notice periods

Employers must give employees and workers a wider written statement within two months of the start of employment. This must include information about:

  • pensions and pension schemes
  • collective agreements
  • any other right to non-compulsory training provided by the employer
  • disciplinary and grievance procedures

HR Wise provide an employee handbook and employment contracts (incorporating a statement of particulars) that comply with these requirements. They are regularly updated by an industry expert, so you don’t have to worry about keeping on top of things.

Please get in touch if you would like to enjoy affordable peace of mind in this respect.

Contains public sector information licensed under the Open Government Licence v3.0.

Workstation Assessments under COVID

The DSE/Workstation Assessment:

Legislation and guidance on managing Display Screen Equipment (DSE) and Workstation Assessments, like most guidance in 2020, has been ever changing under COVID-19.

“Work from home” instructions introduced during the lockdown back in March brought confusion towards undertaking assessments as this was considered a temporary measure which would not ordinarily constitute the requirement to undertake a formal assessment at the new workspace ie: the kitchen table!.     7 months on, and employers are faced with the choice of returning home workers back to the workspace OR keeping them home worked which is now considered a permanent measure meaning that, in either case, a DSE Assessment will need to be carried out.

So, it’s time to dust down the DSE Assessment forms and ensure that all workers are conducting those regular reviews.

What is DSE or Workstation equipment?

Any work equipment which is used continuously and needed to undertake desk activity is classed as Workstation equipment such as the chair, keyboard, mouse and screen. Items which are used infrequently such as staplers or pens are not usually included as part DSE Assessment

When should a DSE Assessment by carried and by whom?

Any employee who is required to sit for periods of more than one hour at a workstation to undertake their work should carry out regular assessments to ensure that the equipment being used, and how it is used, is safe and adequate. There are several triggers for undertaking or updating a DSE Assessment including:

  • When starting a new job – usually within the first few weeks once settled at the workstation.
  • Following a desk location change or new office layout
  • Following workstation equipment change
  • For pregnant workers – immediately then every trimester until maternity leave begins
  • Following return to work after a long period of absence or following time off through ill health or injury
  • Annually, if not triggered by any of the above

What does the Assessment look at?

A good DSE Assessment will ask a number of detailed questions relating to the equipment and how it is being used along with other aspects of the work environment such as noise levels and facilities. Any concerns should be identified from the assessment and passed to line management for addressing. The assessment should also aim to provide the opportunity for employees to raise any concerns they may have whilst using their workstation. Things considered include:

  • Condition and use of the equipment
  • Posture
  • Work routines
  • Understanding of adjustments

Where do I go for DSE Assessment support?

The HSE website has a range of support tools and advice to help you understand what is required of a DSE Assessment. The HSE guidance is reviewed and updated regularly in line with COVID-19 guidance so keep a close eye on changes to ensure your business remains compliant.

Grounded Safety (groundedsafety.co.uk) are offering a free DSE Assessment Tool to get you started. We are also producing regular blogs focussing on COVID updates to keep you and your business COVID Secure and on track with the latest guidance.

Job Support Scheme – What Do the Changes Mean for Your Business?

On 24 September 2020, the Government announced the next steps for supporting workers and businesses as the Coronavirus pandemic continues.

The job support scheme will open on 1 November 2020 and run for 6 months, until April 2021 and is designed to support jobs which will be sustainable once the pandemic has receded.

You will continue to pay your employee for the time they actually work, but the cost of hours not worked will be split between the employer, the Government (through wage support) and the employee (through a wage reduction).

The important factor being that jobs sustainable in the longer term are able to be preserved despite a downturn in activity over the winter. Employers will also be able to claim the Job Retention Bonus of £1k for each those workers still on the payroll at the end of January if they meet the eligibility criteria.

Further guidance will be published shortly so, for the moment, the key points you need to note are:

All small and medium-sized businesses will be eligible for the scheme. Large businesses will have to meet a financial assessment test, the scheme is only available where turnover is lower now than before Covid-19 started to impact UK businesses.

If you are a UK business you can apply, even if you have not previously used the furlough scheme at all, or if the employees you are now claiming for were not furloughed as part of the job retention scheme.

Your employees must work at least a third (33%) of their normal hours

for the first three months of the scheme. After 3 months, the Government will consider whether to increase the minimum hours required. Note:

    • You must pay staff for the hours they work at their normal contractual rate of pay.
    • For time not worked, the employee will be paid up to two-thirds of their usual pay.

This means an employee working a third of their usual hours would receive 77% of their pay where the Government contribution has not been capped i.e. the government will pay a maximum of 22% of someone’s normal monthly salary. The government’s grant contribution will be capped at £697.92 per month.

Employees must be on an employer’s PAYE payroll on or before 23 September 2020. This means a Real-Time Information (RTI) submission notifying payment to that employee to HMRC must have been made on or before 23 September 2020.

Grants will be payable in arrears meaning that a claim can only be submitted in respect of a given pay period after payment to the employee has been made and that payment has been reported to HMRC via an RTI return.

The grant will not cover Class 1 employer NICs or pension contributions, although these contributions will remain payable by the employer.

Employers must agree the new “short-time” working arrangements with their staff, make any changes to the employment contract by agreement, and notify the employee in writing. This agreement must be made available to HMRC on request.

Employers can rotate employees on and off the scheme and employees do not have to work the same hours each week, but each “short time” period claimed must cover a minimum period of seven days.

Employees cannot be made redundant or put on notice of redundancy during the period within which their employer is claiming the grant for that employee.

We await further news on how you can claim, according to the updates on the Government website you will be able to claim through their website from December 2020 and payments will be made monthly (https://www.gov.uk/government/publications/job-support-scheme

When ‘Banging Their Heads Together’ Doesn’t Work…

Mosaic Mediation Logo

A mediator’s guide to workplace conflict, by our Guest Blogger Emma Jenkings of Mosaic Mediation.

Profile picture of Emma Jenkings

“Why can’t people just ‘get on’?”

I haven’t met a single adult who hasn’t been involved with, or witnessed, workplace conflict. At some point in your working life, you will need to work with or alongside people who you don’t enjoy being around. And, at work you have little choice about who you have to interact with.

The first way to approach the issue of workplace conflict is to realise that at some point in your working life you will encounter conflict – which, most simply put, is any form of ‘disagreement’. This can manifest in the form of frustration, hurt, anger, or disappointment – all of which result from
conscious or unconscious ‘disagreement’ with someone’s behaviour, where a person doesn’t like, agree with, or understand why someone behaves as they do.

Not all conflict is negative but it may lead to hostile disagreement, passive aggressive communication, withdrawal or even physical altercations, at the extreme. Any of these behaviours WILL negatively impact the way people work together, and their individual performance at work.

One of my favourite quotes is by Blaine Lee: Almost all conflict is a result of violated expectations.”

Having realistic expectations of others could be the difference between peace and conflict. Unfortunately, in the workplace (especially if our roles are similar) we subconsciously expect people to communicate, behave and understand things the same way we do. Even acknowledging that ‘everyone is different’ doesn’t stop us from those inherent feelings of frustration if, for example, we have explained something multiple times, and the other person still doesn’t seem to understand what we mean!

Differences between colleagues can have the potential to help an organisation perform beautifully, when pulling together these different skills, insights and personalities. However, they also have the potential to cause disruption and communication breakdown if those differences are neither expected nor appreciated.

Such ‘expectation and appreciation’ may be demonstrated by developing a culture within an organisation that is equipped to prevent ‘unnecessary conflict’ and to handle reasonable conflict effectively, when it does occur.

What constitutes ‘unnecessary conflict’?

As I have already stated, at some point in your working life you will encounter conflict. What is preventable is: the degree of fallout from the conflict, the escalation of issues, and the extended length of time it can take to resolve things.

So ‘unnecessary conflict’ is where – had there been a greater level of understanding, and willingness to see a different perspective, and the awareness and knowledge to communicate effectively with behavioural tendencies that are different to their own – the degree of disruption,
miscommunication or friction would have been significantly reduced or avoided.

What can be done to prevent ‘unnecessary conflict’?

In my book, ‘The Four Pillars of Conflict Prevention’, I discuss four main areas to be aware of. Essentially, these are the areas that I look at when both helping an individual or organisation prevent conflict, or areas that I will take note of when determining what has to an already-present conflict.

These 4 areas are: Communication, Approach, Notice Change, and Trust.

1. Communication is involved in every interaction we ever have, but it truly is a skill to communicate effectively with different people in all manner of situations. Preventing unnecessary conflict is possible by developing your knowledge of communication, particularly around: listening skills, clarity of mindset, the impact of someone’s perceived identity, emotions, and different communication tendencies.

2. Having the most appropriate ‘approach’ goes beyond working on your tone of voice. If you are aiming to prevent unnecessary conflict, it helps to understand which factors should determine your approach to a conversation, to give you the greatest likelihood of your communication being received exactly as you had intended.

3. Change is often a major factor in conflict developing. So, if you notice changes in how the organisation or the team is structured – a new manager for example – it is likely you will be more prepared to tackle ‘minor niggles’ before they become major issues. Other areas of change to pay attention to include: employee’s social lives, body language, any inconsistent treatment amongst staff, an increase in critical attitudes.

4. Finally, TRUST. It is what underpins the balance and ‘health’ of all relationships – whether work or personal. If you notice a change in how people are interacting or engaging with each other, think about how much they may (or may NOT) have trust in the other person’s credibility and/or character.

If there is low trust between people, that will impact how they communicate, how they perceive the intentions of the other person and will inevitably lead to some form of conflict. Noticing which area of trust is low, will enable you to focus on what each individual can do to re-build trust in that area.

How to manage conflict effectively

Each situation is different, so the approach will need to be adjusted to match each situation.

That being said, there are some general rules which are helpful:

1. No ‘winning’ – If you are involved in the dispute, trying to ‘win’ an argument is a recipe for conflict escalation. If you are helping to support other people to resolve an issue, don’t take sides – not in reality, nor in perception. Neutrality is an essential skill as a mediator – knowing that taking sides will be a block to an effective and long-lasting resolution. When mediations are done by someone where there is the potential for perceived bias, it has a very low chance of working out. (I have done mediations to clear up previous failed mediations because of this exact issue.)

2. No apportioning of blame – I’m not suggesting that we allow people to avoid accountability; but that it is more effective to talk in less emotive terms than ‘blame’. Using different phrases, and an approach that encourages people to address their ‘contribution’ to a situation, is less likely to make people feel defensive.

3. Ask curious questions – Often, people feel they are being asked questions to trap them into an answer that will put them in a vulnerable position. Asking questions that show an intention to understand, and maybe gently challenge, will encourage more open and honest answers.

4. Don’t ignore the ‘red flags’ – Most issues don’t get resolved by time itself. Most need addressing and require effective communication about them – and if done when they are minor and new, it’s likely that they will be quickly and efficiently resolved. Issues that are ignored will fester and escalate (even if it takes a while). The longer they are ignored for, the harder it is to resolve.

5. Don’t try to resolve things too quickly – Far too often I have been brought into a situation where there has been a previous discussion where people agree to ‘move on’, without actually having discussed the key concerns or feelings involved. Moving on can only happen once there is a greater level of understanding from each person about the other. (No ‘banging of heads’ please!)

6. Encourage problem-solving – Once issues have been addressed, misunderstandings clarified and the core concerns are clear, then you can move onto to forward-thinking. Any solution that the individuals mutually agree upon and champion is going to have a greater likelihood of ‘sticking’, so get them involved in the suggestions as much as possible.

One last tip: Aim for preventing ‘unnecessary conflict’, not for avoiding all conflict! Some conflict is necessary to promote positive change.

Conflict (or ‘disagreement’) of some sort is inevitable because everyone is different – with different histories, personalities, skills, communication styles and perspectives. However, that doesn’t mean the conflict needs to be long-lasting, nor should it be damaging to individuals or the organisation.

I love being a mediator, and what I enjoy about my job is not the arguments or negativity, but seeing the positive results that come from conflict resolution. For the vast majority of mediation, the issues and discord are resolved. And, in every mediation I have been involved in, individuals discover more self-awareness and a greater understanding of others – as an inevitable by-product of the mediation process.

If you are involved in, or supporting people through, workplace conflict currently, have hope. Most conflict is ‘resolvable’, and it may lead to far more positive results than you could anticipate.

Emma Jenkings is a qualified Workplace & Employment Mediator and set up Mosaic Mediation in 2016. She has since been involved in a wide range of mediations to resolve disputes and tackle difficult conversations. She is now also a DISC assessor, conflict resolution coach, communication
trainer, and speaker on conflict and communication. Her online ‘Kindly Speak Up’ course on positive assertiveness is now available to purchase.

‘The 4 Pillars of Conflict Prevention’ ebook by Emma Jenkings can be purchased on www.amazon.co.uk . For more information on workplace mediation, coaching, training, courses and resources, please go to www.mosaicmediation.co.uk . Or, you can contact Emma Jenkings by
emailing emma.jenkings@mosaicmediation.co.uk .

The Uber Case

The Supreme Court’s two-day hearing of the Uber BV and others v Aslam and others case took place week commencing 20 July 2020. It will be a landmark judgement in the field of employment law in relation to the definition of an employee, worker or self-employed contract. We can expect to hear the outcome in the next couple of months.

Why does it matter?

Employment status disputes are when an individual feels they are entitled to the same rights as if they were employed (or potentially vice versa). There are different categories of employment:

  • employees, who are entitled to a wide range of employment rights and benefits;
  • dependant workers, who are entitled to some, but not all, of those rights; and
  • third party contractors (self employed), who receive very little protection under employment legislation.

This is important for the Uber drivers, as if they are considered to be workers, they are entitled to many more rights (including paid leave, etc.) than if they are considered self employed.

The merits or otherwise of the gig-economy and zero-hours contracts have been debated widely over the last few years. There are benefits to some people of having flexible working but for some this is the only work they can obtain. More and more people are looking to work for companies like Uber, in a job market which could see a rise in unemployment of up to 13%, in a worst case scenario (Office for Budget Responsibility Fiscal sustainability report July 2020) .

The Supreme Court decision will be of vital importance to those who drive for Uber or work for other such similar companies, and for their employers…..

Long term impact on you and your employees

The changes we have made to manage the spread of COVID 19 have led to improvements in the environment (albeit short-term) and in some cases improvements to the quality of life, it’s been a period of reflection for many of us, as individuals and employers. For some sectors, this will be a time to flourish, sadly for others it will be a long road to recovery.  Anecdotally, the number of retirements is increasing following furlough and there is a strong possibility of a baby boom in the first half of next year!

Inevitably and it is always with much regret for employers, financial challenges have necessitated the need to consider making roles redundant but for others, the situation has created more opportunities.  As an employer, it is time to consider your outgoings and you may want to consider the following opportunities when seeking to sustain jobs:

  • Homeworking means there is the potential to save on travel expenses, printing and other consumables
  • Review your supplier contracts
  • Implementation of new technology
  • Consider news ways of working for example shift patterns
  • Online trading
  • The use of temporary staff to navigate peaks and troughs in demand as businesses catch up with backlogs in production and or a reduction in certain types of activity

Apprenticeships and Work Placements

The Government announced support for those looking to for a new job and needing to learn new skills, particularly young workers.

As an employer, you may want to consider an apprentice. In England, if you employ a new apprentice between 1 August 2020 and 31 January 2021, you will receive a payment of £2,000 for each new apprentice you hire aged under 25, and a £1,500 payment for each new apprentice you hire aged 25 and over.

The Government wants to create six-month work placements aimed at those aged 16-24 who are on Universal Credit and are deemed to be at risk of long-term unemployment. Funding will be available for each placement. It will cover 100% of the relevant National Minimum Wage for 25 hours a week, plus the associated employer National Insurance contributions and employer minimum automatic enrolment contributions.