Championing women in the workplace, tackling trans discrimination and spearheading tech upskilling – all in a day’s work
We caught up with Martha Craven, Employment Solicitor at Samuel Phillips Law, HLN’s legal Expert in Residence
Samuel Phillips have created their own ‘rescue package’ to support businesses through the pandemic. Can you tell us more about Biz-Care?
Annual retainers aren’t always appropriate or cost-effective – especially for smaller businesses. So, we introduced Biz-Care as a way to offer legal support on a shorter-term basis, to help businesses through critical periods without tying them down for a full year.
Biz-Care typically covers a three-month period, during which we can provide advice and support about:
- Bringing staff back to work safely and legally (including those who were previously advised to shield and pregnant employees);
- The end of the furlough scheme;
- Re-negotiating contracts in line with changes to demand or working practices;
- Redundancy processes.
For businesses that do require more long-term HR support, our Employment Protection Scheme is an annual retainer that incorporates insurance to help protect businesses against Tribunal claims.
Championing women in the workplace is something you’re passionate about. What are the most common cases you’re assigned to for your female clients?
Sadly, claims for harassment remain quite common. This is where women are subject to unwanted behaviour or comments related to their sex. It doesn’t matter if colleagues think these comments are funny or ‘just banter’ – they may still constitute harassment.
Unfortunately, we’re also seeing a surge in pregnancy and maternity discrimination, with a lot of employers confused about how to correctly support pregnant employees and those on maternity leave during the COVID-19 pandemic and during redundancy consultation processes.
How can we (legally) protect ourselves as a business owner?
Try to educate yourself about the rights of your staff as much as possible so that you know when to seek further advice and avoid placing your business at risk. Ensure you have proper contracts in place which protect the business in the event the working relationship ends.
Key areas to think about are:
- probationary periods,
- intellectual property and
- post-termination restrictions (such as non-competes).
Contracts should be properly tailored to your business – especially when it comes to intellectual property and post-termination restrictions. Avoid a ‘cut and paste’ approach!
Remember that happy staff don’t tend to bring claims and are also more productive and loyal. You can protect your business by:
- Working towards embedding a positive and inclusive workplace culture.
- Backing this up with appropriate policies and procedures.
- Making sure you follow your own policies and procedures and do not let issues ‘drift’ and continue unresolved.
And as an employee or worker?
- Try to educate yourself about your legal rights.
- Try to resolve any issues amicably and informally if possible (but keep a contemporaneous record of any informal conversations you do have). If this doesn’t resolve the issue, then move on to a formal written grievance.
- If something really doesn’t feel right, then get some advice sooner rather than later, because the time limits at Tribunal are very short – usually less than three months from the relevant incident.
Tackling trans discrimination in the workplace is also of particular interest to you. What specific challenges do trans people face at work that cisgender* people may not be aware of?
Firstly, as a cis individual, I cannot speak to the experiences of members of the trans community in the workplace or the specific challenges that they may face.
However, the recent Tribunal case of Taylor v Jaguar Land Rover perhaps provides an illustrative example of the harassment and discrimination which trans individuals can face at work.
After Ms Taylor began identifying as gender-fluid, some colleagues referred to her as ‘it’ and asked her whether she was going to ‘have her bits chopped off’. Also, when Ms Taylor asked for clarification regarding toilet facilities, she was told to use the disabled toilets. This state of affairs continued for a sustained period of time, even after Ms Taylor reported the issue to HR.
Ms Taylor was (quite rightly) awarded £180,000 in compensation.
*A cisgender person is one whose gender identity matches their sex assigned at birth.
Unfortunately, due to the impact of the pandemic, many local businesses will need to make redundancies. What sort of legal challenges do they face?
The most common claims arising out of a redundancy process are unfair dismissal and discrimination. Employers can also face costly claims where they are proposing to make 20 or more employees redundant and they fail to collectively consult with those affected.
Finally, there are also additional considerations that must be taken into account for those who are pregnant or on maternity leave.
What should employees facing or experiencing redundancy know?
The important thing is to engage with the process. Ask questions about the business case, pooling and selection criteria. Take time to think about genuine potential alternatives and tell your employer. Always ask for a copy of minutes of the meetings you attend and read them carefully before agreeing with the content.
We’ve heard technology is another keen area of interest for you?
Automation is already having a major impact upon the world of work. Some sectors – such as manufacturing, retail and financial services – are more likely to be affected than others.
A report by PwC estimates that 20% of UK jobs could be automated by 2030. That is less than 10 years away.
The concern is that some jobs could be displaced as the use of such technology increases. However, automation also presents a huge opportunity for the creation of entirely new jobs and increased productivity. The Government and businesses need to work together to up-skill and retrain the current workforce to capitalise on this opportunity. This will require planning and investment.
Job displacement, upskilling and retraining will also present a range of challenges from a human resources perspective. So it’s a fascinating time to be an employment lawyer!
If any of our readers are thinking about to start their own business, what are some key legal areas to consider?
Think very carefully about what type of working arrangement is best for your business and what an individual’s employment status will be. The recent Uber case in the Supreme Court showed how complicated deciding employment status can be, and how costly it can be if a business categorises the working relationship incorrectly.
Remember that there are many rights that apply to both ‘workers’ and ‘employees’. For example:
- Right to a written statement of particulars of employment (and the principal statement must be provided when the individual starts work i.e. from day one);
- Right to the National Minimum Wage;
- Right to statutory paid holiday;
- Rights under the Working Time Regulations such as minimum rest breaks and the 48-hour limit on the working week (though individuals can opt-out of the 48-hour limit) and
- Protection from unlawful discrimination
It’s a common misconception that you can dismiss an employee who has less than two years’ service without any risk of unfair dismissal. There are several types of ‘automatic’ unfair dismissal which do not require an employee to have two years’ service.
To minimise risks of unfair dismissal claims, you need a fair reason to dismiss and you also need to follow a fair process. Ensure you have proper processes in place to deal with disciplinaries and grievances and stick to them!